By Chadwick Wong -
Snapshot
- In National Disability Insurance Agency v WRMF, the Full Federal Court upheld an AAT decision in which the sex therapy services requested by an applicant under the NDIS were found to be a reasonable and necessary support.
- Except for where the NDIS Act or Rules expressly exclude a type of support, the legislation does not impose hard limits on what is ‘in’ and what is ‘out’ when it comes to ‘reasonable and necessary supports’.
- The judgment includes significant broader takeaways, which may be useful for NDIS participants, their advocates, lawyers and families when dealing with the NDIA.
In May, the Full Court of the Federal Court of Australia handed down its decision in National Disability Insurance Agency v WRMF [2020] FCAFC 79. In this case, the National Disability Insurance Agency (‘NDIA’) appealed a decision of the Administrative Appeals Tribunal (‘AAT’) which held that the sex therapy services requested by the applicant, Ms ‘WRMF’, were a reasonable and necessary support in her circumstances, and should be funded by the NDIS. The Full Court denied the NDIA’s appeal and found unanimously in favour of Ms ‘WRMF’.
Much has already been written about the outcome of the case, and what it means for people with disability and their right to have equal access to sexual expression (see e.g. the media release from People with Disability Australia: https://pwd.org.au/landmark-decision-for-the-right-of-people-with-disability-to-have-sex/).
Aside from the direct outcomes of the case for Ms ‘WRMF’, the case is also important for what it reveals about the NDIA’s approach to establishing ‘reasonable and necessary support’, and for the Full Court’s (unanimous) rebuke of the NDIA’s approach in several areas. This article highlights three significant points that NDIS participants, their advocates, lawyers and families should keep in mind when dealing with the NDIA.
