Sex Therapy Is “Reasonable and Necessary”, Says the Federal Court

23 NOV 2020

 

NDIA v WRMF

Whilst it may appear unexpected, the Federal Court has determined that sex therapy can be considered a “reasonable and necessary support” under the National Disability Insurance Scheme (NDIS), potentially opening the door to a flood of similar requests.

In this particular case, a woman in her forties was diagnosed with multiple sclerosis (MS) over twenty years ago. She was a participant in the NDIS and requested funding for a “sex worker” under her support plan. In her request, the woman said that before her diagnosis, she had an “active sex life”, and since that time, she had been single. She attributed this and her inability to achieve “sexual release” to her MS.

The Applicant’s request was declined by the National Disability Insurance Agency (NDIA) on the basis that it was not “reasonable and necessary”, and fell outside of the scheme. A review was sought in the Administrative Appeals Tribunal (AAT), where the description of the support claimed was changed from a “sex worker” to “sex therapist”. The AAT ordered that the decision be reconsidered, with the view that the claimed support was reasonable and necessary.

The NDIA appealed the decision from the AAT, which resulted in the matter being heard in the Federal Court. The NDIA argued that “sexual services” were not covered by the NDIS, and that the support requested was not reasonable and necessary. The NDIA also argued that whilst the NDIS may fund services to help participants overcome a disability to have sex, it was not able to fund the sexual act itself. As such, the NDIA put forward an alternative fundable service, being the use of sex toys with the assistance of an occupational therapist.

The Court ultimately decided that the request for sexual services under the NDIS was permissible and in fact reasonable and necessary. The Court said that the law did not exclude sexual services from being funding by the NDIS. The Court went so far to say that if it were to exclude sexual services, it would be contrary to the goals of the NDIS, which are to help Australians with disabilities maximise their independence and quality of life.

If you have any questions on the above article please contact Joe Bonura on jbonura@marsdens.net.au or Tess Danjoux on tdanjoux@marsdens.net.au or by phoning 02 4626 5077.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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