WRMF and National Disability Insurance Agency

[2019] AATA 1771

WRMF and National Disability Insurance Agency [2019] AATA 1771 (8 July 2019)

Division:GENERAL DIVISION

File Number(s):      2017/5181

Re:WRMF

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:8 July 2019

Place:Sydney

The reviewable decision is set aside and the matter is remitted for reconsideration with the direction that the support claimed, at the level claimed, is a reasonable and necessary support.

....................................[sgd]...................................

Deputy President B W Rayment OAM QC

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – definition of support – definition of reasonable and necessary – sexual therapy – whether sexual therapy is a reasonable and necessary support – particular circumstances of the applicant – decision set aside and remitted

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 15AA

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 14, 34

CASES

Azizi and Minister for Home Affairs [2018] AATA 2561

Burchell and National Disability Insurance Agency [2019] AATA 1256
Margaret Young and National Disabili
ty Insurance Agency [2017] AATA 407

McGarrigle v National Disability Insurance Agency [2017] FCA 308

SECONDARY MATERIALS

Convention on the Rights of Persons with Disabilities Article 25     

International Covenant on Economic, Social and Cultural Rights Article 12

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

8 July 2019

1. In this review, the applicant claims that her particular circumstances as a participant in the National Disability Insurance Scheme produce the result that she has a need for funding from the Scheme for a reasonable and necessary support. The support is requested for the services of a sexual therapist, specially trained in treating disabled persons.

2. The circumstances which unfortunately affect the applicant herself are, to say the least, very unusual. The details of the claim involve very personal details concerning the impact of her disability upon her sexual life, such that I have decided that those details ought not, out of respect for her, to be disclosed in the public section of these reasons for decision. I apprehend that she would be embarrassed and disconcerted by their disclosure publicly, and that no public interest requires that such details be exposed to the world at large, or to media discussion. They are recited in a confidential section of these reasons published to the parties at the time of these non-confidential reasons being published, to enable the parties but not the public to know the precise detailed factual reasons for the decision I have made. The Tribunal has power to publish its reasons, in whole or in part, in confidence if the circumstances make it appropriate and I have decided to exercise that power in this case as to part of my reasons. The course of publishing separate, confidential reasons is consistent with s.4(10) of the National Disability Insurance Scheme Act2013 (the Act) which makes it a general principle guiding actions under the Act that people with disability should have their privacy and dignity respected.

3. I should stress that this case does not, in my opinion, throw up for decision the question whether the services of a sex worker ought, on the proper construction of the Act to be funded for persons with a disability if their needs require it. The applicant does not seek the services of a sex worker. Rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference. She seeks those services not because she does not have a life partner (although she does not have or expect ever to have a partner). As will appear from the confidential section of these reasons, a partner from the community would be unlikely, because of special features of the case, to be willing or able to provide the kind of services the applicant requires in order to obtain sexual release. Nor, if she ever found a partner, would she be able to sexually stimulate the partner, because of matters referred to in the confidential reasons. Her condition also prevents her from masturbation.

4. The respondent submits that the applicant is seeking the services of a replacement sexual partner. In one sense, that is true, if one focuses only on the sexual release which is the intended result of sexual congress. The word “partner” suggests a more permanent relationship than the applicant seeks. Nor do I accept that the applicant is seeking a “paid friend” as the respondent seems also to submit. The respondent says that the funding claimed is neither for a support, nor for a reasonable and necessary support contemplated or supported by the general principles of the Act.

5. The word “support” is a description of a class which includes general supports and reasonable and necessary supports. General supports means services provided by the agency and reasonable and necessary supports which are funded by the agency. There is no question of general supports in this case, and the question whether this is a support comes down to what I regard as the critical question in this case, whether the applicant is entitled to the reasonable and necessary support claimed. The concept of a support is not defined, except by saying that it includes general supports. It means the same as “assistance”, and so understood, it is satisfied when one considers what the applicant claims.

6. The question whether the support claimed is a reasonable and necessary support is the ultimate question in this case, and is the subject matter of these reasons.

7. To a certain extent the evidence and issues argued on this review have ranged beyond the particular facts and circumstances of the case, and have dealt with the more general question whether the services of a sex worker can be a reasonable and necessary support for a disabled person. That sort of question, if it ever arises, is one on which strong views might be held, perhaps on both sides of the issue, by the community, whose funds are used to meet government expenditure. There is a facility in the Act for such a question to be dealt with by representative governments rather than by the executive (including this Tribunal) simply construing the Act and applying it to the particular facts and circumstances of the case. That facility is contained in s.35(1)(b) of the Act, which enables rules to be made prescribing reasonable and necessary supports that will not be funded under the National Disability Insurance Scheme. Such rules need to have the unanimous agreement of the host jurisdictions, therefore including the States and the Commonwealth, all of which contribute funds to pay for the Scheme. The requirement for unanimity arises from s.209 of the Act. Such a rule may be made either in advance of or after a decision has been made by the executive about the way in which the Act operates. If such a rule is passed, it will bind the executive arm of government to give effect to it. Otherwise, the executive will be required to decide the legal and factual questions arising under the Act as it stands. For the most part, although some evaluative questions arise if the matter is approached in that way, few discretionary decisions under the Act. No political considerations are relevant to be taken into account by the executive, including this Tribunal. Such considerations will be taken into account by representative governments deciding whether or not to make a special rule under s.35(1). Of course, the States and the Commonwealth may not be able to agree.

8. As will appear, the general question to which I have referred in [3] and [7] above does not arise in this case, because the review is concerned with the particular circumstances of the applicant, and they are, as I have said, very unusual. I will not deal with any considerations relating only to the general question, because it is not necessary to decide the general question to deal with the issue arising on the review, and since decisions of this Tribunal are normative both within the Tribunal and within the agency[1], care ought to be taken in this Tribunal to decide no more than is necessary to be decided on a review.

   [1] See, for example, Azizi and Minister for Home Affairs [2018] AATA 2561.

9. The applicant is a lady in her forties, who has no partner. She ceased seeking a partner at the time of her MS diagnosis, that is, some sixteen to seventeen years ago. She has sexual needs. She attributes her inability to locate a partner to her disability, and has explained why that is so, in evidence which I accept to which the confidential reasons refer. She identifies as a lesbian.

10. The applicant is afflicted with multiple sclerosis, and has other related conditions, which make the prospect that she will obtain sexual release of any kind without the intervention of a sexual therapist unlikely. She has suffered from multiple sclerosis for some seventeen years or more, and walks with difficulty and with the assistance of strong MS drugs. She has no loss of intellectual capacity. She does not work and her main source of income is the disability support pension. She is provided by the Agency with the services of a carer to attend to her physical needs. She has some psychiatric conditions which have evidently not affected her intellectual capacity, and she gave her evidence by telephone intelligently and it seemed to me, reliably.

11. The question is whether the support claimed by the applicant is a reasonable and necessary support. The expression “reasonable and necessary supports” is not used in the Act in relation to “general supports” (those provided by the agency directly) but only in relation to the supports which it will fund.

12. The expression has no definition in the Act, and it is necessary to gather its meaning from its statutory context, taking account of a number of different provisions in the Act. Mortimer J made some comments about the meaning of the expression in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [41]. Her Honour said:

    41. Although the phrase “reasonable and necessary supports” is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially in my opinion s 4(11), which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.

13. Her Honour did not limit the provisions of the Act which establish context for the expression “reasonable and necessary supports”. To decide the question in this case, I will review that context insofar as it is relevant to gather the meaning of the expression for the particular case of the applicant.

14. The objects section of the Act in section 3 is in the following terms:

    (1)The objects of this Act are to:

    (a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

    (b)provide for the National Disability Insurance Scheme in Australia; and

    (c)support the independence and social and economic participation of people with disability; and

    (d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

    (e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

    (f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

    (g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

    (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

    (h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and

    (i)in conjunction with other laws, give effect to certain obligations that Australia has as a party to:

    (i)     the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and

    (ii)    the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and

    (iii)    the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and

    (iv)   the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and

    (v)    the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

    Note: In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( objects are to be achieved by:

    (a)providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and

    (b)adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and

    (c)establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.

    (3)In giving effect to the objects of the Act, regard is to be had to:

    (a)the progressive implementation of the National Disability Insurance Scheme; and

    (b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and

    (c)the broad context of disability reform provided for in:

    (i)     the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and

    (ii) the Carer Recognition Act 2010; and

    (d)the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

15. The particular objects which may help to flesh out the concept of reasonable and necessary supports in this case within s.3(1) are sub-paragraphs (a), (c), (e), (g) and (i). Regard must also be had to s.3(3)(b).

16. The Convention on the Rights of Persons with Disabilities mentioned in s.3(1)(a) places emphasis in Articles 1 and 4 on the human rights and fundamental freedoms of persons with disability and on the need to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. The expression “discrimination on the basis of disability” has a special definition in the Convention which extends to any distinction, exclusion or restriction which has the purpose or effect of impairing the exercise by persons with disabilities, on an equal basis with others, of all human rights and fundamental freedoms. The preamble also refers to the importance of the freedom of persons with disabilities to make their own choices. Article 23 speaks of the elimination of discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others. Article 25(a), referring to health, mentions the need to provide persons with disabilities with the same range, quality and standard of free and affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes.

17. It so happens that this Convention has come under attack in some of the literature for having, it is said, downgraded the sexual rights of the disabled by discussing them only in the context of family life, dealt with in Article 23 of the Convention. Advocates and some academics write about the case of disabled persons without a partner, who still have sexual desires and dreams, and who may be disadvantaged in their pursuit of such desires and dreams by the fact of their disability.

18. That literature discusses “sexual rights” and describes them as human rights, and some of it refers to “sexual assistance” which should be given to disabled people. An editorial published in the United Kingdom journal Reproductive Health Matters complains that society has disregarded the sexuality (and reproductive concerns) of disabled people.

19. So far as I am aware, human rights have not yet been described in any treaty as including “sexual rights”. The treaties mentioned in s.3(1)(i) of the Act do not identify any sexual right as a human right, although reproductive rights are mentioned. It may be the case that the presence of Article 23 in the Convention (which refers to marriage, family, parenthood and relationships) militates against treating the need for sexual release as a “fundamental freedom” although the contrary seems to me to be arguable. Neither party has referred me to any learning on that question.

20. I reject the proposition that sexual rights are human rights. From a legal point of view references to human rights should be confined to those identified in treaties or local legislation, and I would understand the Convention on the Rights of Persons with Disabilities in its reference to human rights as not referring to sexual rights.

21. That raises the question whether a “fundamental freedom” is involved in the facts of the case. That is a question which may be arguable both ways, and I would hesitate to reach a firm view about the question, since the matter was not fully argued and I was referred to no learning about it.

22. The object of supporting the independence and social and economic participation of people with disability mentioned in s.3(1)(c) is also mentioned in a number of other sections of the Act, including s.4(2), which makes it a general principle guiding actions under the Act that people with a disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

23. Section 4(1) of the Act makes it a general principle guiding actions under the Act that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. This principle seems to be aimed at bringing about, to the extent practicable, equality between people with a disability and others in the society, in a matter going to physical, social, emotional or intellectual development, The Act intends that the executive will recognise rights to such development equally with others, to the extent possible.

24. Section 4(3) provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. The word “need” in that section seems to me to bear its ordinary English meaning, and that suggests to me in turn that the word “necessary” in the expression “reasonable and necessary supports” also bears its ordinary English meaning. One should ask in that respect: does the support fulfil a need of the participant? The word will extend to a health need, but is not limited to health needs.

1. Section 4(8) states that people with disability should have the same right as other members of the society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity. This reflects the object set out in s.3(1)(e) of the Act. Like s.4(1) of the Act, s.4(8) is consistent with an intention that relevant disadvantages suffered by people with disabilities by comparison with others should be minimised.

2. The object mentioned in s.3(g) speaks of supports. The word “supports” covers both general supports and reasonable and necessary supports, and the supports should be of high quality and innovative, and be supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.

3. Amongst the treaties mentioned in s.3(1)(i) of the Act is the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966. The State parties recognise, by Article 12, the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

4. The purposes indicated in the objects of the Act will enable a court or the decision maker to construe legislation in cases of doubt, and form part of the context in which the Act should be construed. A construction which will best advance the purpose of a provision, is to be preferred to each other (possible) interpretation, in accordance with s.15AA of the Acts Interpretation Act 1901.

5. As pointed out by Mortimer J in McGarrigle, s.4(11) in the Act is important in conveying an understanding of the expression “reasonable and necessary supports”. It provides that:

   (11)Reasonable and necessary supports for people with disability should:

   (a)support people with disability to pursue their goals and maximise their independence; and

   (b)support people with disability to live independently and to be included in the community as fully participating citizens; and

   (c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

6. Section 4(11) repeats some of what is referred to in the objects, and looks forward to parts of what is specified in s.34 of the Act, discussed below.

7. Section 4(11) states that reasonable and necessary supports for people with disability should support such persons to pursue their goals and maximise their independence; and support them to live independently and to be included in the community as fully participating citizens, and to develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. If something about the disabled person means that he or she is not able to be included in the community as a fully participating citizen, and a reasonable and necessary support will avoid that result, it will be appropriate for it to be provided.

8. Section 14 of the Act, to which Mortimer J also refers, states as follows:

   14 Agency may provide funding to persons or entities

   The Agency may provide assistance in the form of funding for persons or entities:

   (a)for the purposes of enabling those persons or entities to assist people with disability to:

   (i)     realise their potential for physical, social, emotional and intellectual development; and

   (ii)    participate in social and economic life; and

   (b)otherwise in the performance of the Agency’s functions.

9. Although the section does not use the expression in question, it seems to be about reasonable and necessary supports, because it empowers the agency to provide funding, and it provides funding for reasonable and necessary supports.

10. Section 14 of the Act tends to support the view that the support claimed in this case is a reasonable and necessary support, because of some of the evidence given in the case. Her response to her achievement of sexual release (to the extent to which she is able to obtain such release) as a result of the services of a specialised sex therapist were described by the applicant in evidence which I accept as good for her mental wellbeing, her emotional wellbeing and her physical wellbeing at Transcript page 18, where she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life.

11. Therefore funding for a specialised sex therapist to provide the services in question seems to me to be funding which will be for the purpose mentioned in s.14(a) of the Act.

12. The relevant presently important themes suggested to me by the objects and guiding principles of the Act referred to above also seem to me to support the view that the support claimed is a reasonable and necessary support, subject to what is said below about s.34 of the Act. Those themes are freedom of choice, the need (at least in some respects) to seek to place persons with a disability in a situation where they are not disadvantaged by comparison with those who do not have a disability, supporting persons with a disability to participate in and contribute to social and economic life to the extent of their capacity, maximising their independence, and their ability to make choices. The applicant chooses to have the services of a sexual therapist. Most people do not need such services to achieve sexual release, so in a sense she is put on a par with others as far as she can be. As I have found, the support will help her realise her potential for social and emotional development and to participate in social life.

13. The need to ensure the financial sustainability of the Scheme is referred to in s.3(3)(b) of the Act, and also in s.4(17) of the Act, also elsewhere in the Act and in the rules. I heard evidence going to this matter from the Scheme Actuary. That evidence was of a worst case scenario. It examined the position if every person, male or female, married or unmarried, who suffered from multiple sclerosis, and certain other disabling diseases, sought a sex worker. I do not understand myself to be dealing with any such case, nor to be deciding what should happen in such a case. As I have said, it is not the case that the applicant seeks services provided by a sex worker. Such services would not be of help to her. She happens to be in such circumstances, referred to in the confidential reasons, that the only help she can usefully have to reach sexual release, to the extent to which she can, is by means of the qualified and trained sexual therapist whose services she seeks. She does not have a need likely to be capable of being met by a partner and she has no partner. The financial sustainability of the scheme is not threatened by funding the support which she seeks.

14. Chapter 3 of the Act makes more detailed provision about reasonable and necessary supports. Division 2 relates to the preparation of participant’s plans. A participant’s plan must include a statement of participant’s supports prepared with the participant and approved by the Chief Executive Officer, and that document will specify amongst other things the reasonable and necessary supports (if any) that will be funded under the Scheme. Those supports must apply any relevant rules, and the CEO must be satisfied of each of the matters mentioned in s.34(1) of the Act.

15. Section 34 is in the following terms:

    (1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

    (b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c ) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)     as part of a universal service obligation; or

    (ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

    (2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

16. Although s.34 is not in terms a definitions section of the expression “reasonable and necessary supports” it stipulates a number of things, each of which the CEO, and therefore this Tribunal on the review must be satisfied. A decision maker must either accept all such matters or reject the claim in question.

17. The particular case of the participant must be considered with each of the matters mentioned in s.34.

18. Section 34(1)(a): the applicant’s statement of goals and aspirations is to be found at T document 23. Included in that document is a longer term goal in the following terms: “I want to maintain my health and wellbeing.” I accept that sexual release, to the extent to which she can manage it, and the generation of pleasure with the assistance of a sex therapist with disability training will assist her wellbeing, as mentioned above in [34]. She gave evidence to which I refer in the confidential reasons about those matters, and she was not cross-examined upon that evidence. Indeed I was told by Ms Ruddle of counsel, who represented the respondent in these proceedings, that the respondent made no submission that the applicant’s evidence should be rejected in any respect. She is best placed to know the effects upon her of the sexual therapy she has received, and despite a submission from the respondent that the applicant has not achieved full sexual release, it seems to me that the evidence she gave sufficiently satisfies the criterion in s.34(1)(a). For this purpose I do not need to rely upon the evidence of a counsellor called to give evidence by the applicant, whose evidence was challenged by the respondent.

19. Section 34(1)(b): This provision directs the CEO to consider not what will enable the participant to undertake activities, but will assist him or her to participate in those activities. If one has a brighter mood, and a sense of wellbeing, then one is more ready to face the world. As I remarked above, the applicant has no loss of intellectual capacity and she desires to socialise as others do. She makes weekly visits to a social group. Like some other disability participants, she does not work. Any view that s.34(1)(b) requires that a participant be in gainful employment ignore the objects of the Act. Many people who are participants do not work and never will work, because of their disabilities and what it involves for them. In Margaret Young and National Disability Insurance Agency [2017] AATA 407 it was said that the expression “social and economic participation” should not be read so as to require participants to be able to work, because some participants have such severe and profound disabilities that will preclude any possibility of employment. I think that such a view is clearly correct in relation to this statute. Economic participation should be understood as economic participation if that is possible. It is social participation to which one should attend when considering this part of s.34. She is, I find, better able to socialise if her mood is brighter, and she has a sense of wellbeing. She is therefore assisted in that respect.

20. Section 34(1)(c): I have received evidence that the cost of the support on the basis claimed, that is, for therapy once a month, is reasonable having regard to market rates. The cost comes to $10,800 per annum. The benefits achieved support such an expense, as explained in general in these reasons and in more detail in the confidential reasons. There is no alternative support so far as the evidence reveals. This criterion is therefore satisfied.

21. Section 34(1)(d): The applicant’s experience shows that the support which she seeks will be effective and beneficial for her, and I have referred to that matter when discussing the s.14 question in [28] above. The expertise of the sexual therapist, by reason of her specialist training, shows that the support claimed is consistent with good practice. This is a matter also discussed in the confidential reasons in somewhat greater detail. The respondent submits that the services of an occupational therapist or the purchase of specific equipment could provide alternative support. The question of specific equipment is discussed in the confidential reasons, and there rejected as a viable alternative. As to funding an occupational therapist, I do not see such services as an alternative to the funding of a sexual therapist.

22. The respondent referred to rule 3.1(b) which requires the CEO, when deciding whether s.34(1)(d) is satisfied, to “consider” whether there is evidence that the support will substantially improve the life stage outcomes of, and be of long-term benefit to the participant. This rule states matters to which the CEO is to have regard, rather than methods or criteria which the CEO is to apply, to use the language of s.35(1) of the Act, or matters of which he must be satisfied, to use the language of s.34 of the Act. It is something which he is to put into the mix, when considering s.34(1)(d).

23. The respondent submits that the mandatory consideration in rule 3.1(b) is not satisfied. In the previous paragraph of these reasons I have made findings that precisely satisfy s.34(1)(d), which uses the language of “effective” and “beneficial”. That part of rule 3.1(b) which refers to substantial improvement of the life stage outcomes of the participant appears to me to be satisfied for the same reasons. As to whether the benefits derived will be long-term, it needs to be borne in mind that the applicant seeks bimonthly therapy. She has been able to afford it only twice per year. The plan and statement of supports will endure for one year and will then be reviewed. That is no doubt to take account of possible changes in the circumstances of the applicant, and other changes of circumstance. Whether a particular support will continue to be of benefit to the applicant is capable of being periodically reviewed. Presumably so long as her circumstances remain the same the support will remain. Those matters seem to me to be relevant to the mandatory consideration in rule 3.1(b), which is phrased in somewhat abstract terms. So far as can be seen from the evidence before the Tribunal, the benefits that she will derive from the support will continue for the duration of this plan, and, unless some of the circumstances of the applicant change, thereafter for an open-ended period. That would seem to involve that the benefits derived by the applicant will be of a long-term nature. Unless the support funded is of a nature that is permanent (like a wheelchair), long term benefit may be difficult to discover. If the support is of short-term benefit, it is possible to conclude, as in this case, that its continued application will be of long-term benefit. In any event, the mandatory consideration in rule 3.1(b) compels no different view about whether the support satisfies s.34(1)(d).

24. Section 34(1)(e): The support claimed is incapable of being provided otherwise than by a sexual therapist, and the funding of it is agreed by the parties to be inappropriate for others mentioned in this sub-paragraph. The respondent submits that the community ought to provide the support because it is reasonable to expect the community to provide the source of a sexual partner, rather than a specially trained sex therapist. I have effectively already rejected those submissions in [3], [4], [9], and [34] and in the confidential reasons. The applicant at one stage attempted to locate a partner and has ceased to do so, and believes she will never have one. If she did have a partner, she could not stimulate that person, and it seems very unlikely that a partner would undertake the activities which the trained therapist would perform to enable the applicant to achieve such form of release as she is capable of achieving. Again, the respondent challenges the evidence given by the counsellor in support of the applicant, but not the evidence given by the applicant, and I do not need to place reliance upon the counsellor’s supportive evidence.

25. Section 34(1)(f): The respondent submits that the applicant fails this criterion, and that the support is more appropriately funded out of her disability support pension. The applicant cannot afford the support at the level claimed from her disability support pension. I am not quite sure whether the respondent says that it does not matter whether the pension is enough because s.34(1)(f) operates regardless of whether another provider does pay the amount in question. That is an argument I recently rejected on analogous grounds in Burchell and National Disability Insurance Agency [2019] AATA 1256. The disability support pension is not paid in order to provide funding for the purposes for which the NDIS was established. Section 34(1)(f) is one of the criteria which must be established before the CEO can find that a support is reasonable and necessary. Arguments about whether the support is more appropriately funded by a pension seem to require an infinite regress of reasoning.

26. The disability support pension is asset tested and means tested, and supplements income, rather than funding supports. I would reject a suggestion that its receipt precludes recovery by the pensioner of funding for reasonable and necessary supports.

27. If the respondent’s argument were correct it would prove too much. It would mean that persons in receipt of a disability support pension could generally not obtain a finding that any support is reasonable and necessary because if they would fall foul of s.34(1)(f).

28. The respondent also refers to rule 5.1(b) which states that a support will not be provided or funded under the NDIS if it is not related to the participant’s disability. There is in my finding a direct relationship between the disabilities of the applicant and the claim for this support, for reasons already identified.

29. Reference was also made by the respondent during argument to rule 5.3(b) which provides that a support that consists of income replacement will not be provided or funded under the NDIS. That expression cannot be read as if it denies funding for what would otherwise be a reasonable and necessary support, for such a view would deny to participants funding for any reasonable and necessary support. Rather, I take it to mean a request for funding where the support is claimed because the participant is short of money, as such.

30. In the result, the reviewable decision will be set aside and the matter will be remitted for reconsideration with the direction that the support claimed, at the level claimed, is a reasonable and necessary support.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

...................................[sgd].................................

Associate

Dated: 8 July 2019

Date(s) of hearing:	30 April 2018, 8 October 2018, 23 November 2018 and 1 May 2019
Date final submissions received:	6 May 2019
Counsel for the Applicant:	Mr L Karp
Advocate for the Applicant:	Ms A Cho, Self Advocacy Sydney Inc.
Solicitors for the Applicant:	Ms L Ash, Legal Aid NSW
Counsel for the Respondent:	Ms E Ruddle and Ms F Livingstone
Solicitors for the Respondent:	Ms C Halls, National Disability Insurance Agency