By -

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.

1. The NDIA argues it has ‘residual discretion’ in deciding what is reasonable and necessary

The National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’), sets out the factors that the NDIA decision-maker needs to consider in deciding what is a ‘reasonable and necessary support’ (NDIS Act, s 34). The NDIA needs to be satisfied that all these factors are met before approving a support as ‘reasonable and necessary’. In an earlier series of decisions culminating in National Disability Insurance Agency v McGarrigle [2017] FCAFC 132, the Federal Court held if a support is determined to be ‘reasonable and necessary’, it must be fully funded. In this appeal, the NDIA sought to argue that even if all the factors under s 34 were satisfied, it still has a ‘residual discretion’ not to fund the support.

This is a significant – and alarming – argument. If the NDIA is correct, it means that even if a participant’s requested support ticks all the boxes under s 34, the NDIA can still decide not to fund it, although the bases upon which it would do so are not clear. The Court considered this would be a ‘somewhat substantial revision’ to how the NDIS is currently understood to work (at [167]). However, as this argument was not made before the AAT in the initial proceedings, the Full Federal Court would not allow the argument to be introduced on appeal. The Court decided that, given the significance of this question of a ‘residual discretion’, it should await a future case in which the question had first been raised at the AAT stage.

NDIS participants, advocates and lawyers should look closely at the NDIA’s decisions on supports. They should be aware that if the NDIA decides that a support should not be funded even if it meets all the criteria under s 34 (and s 33(5)), this goes against the current understanding of the NDIS Act and may be open to challenge.

2. The Court rebuked the approach taken by the NDIA to the AAT and on appeal

NDIS users will be familiar with complaints that the NDIA has taken an inconsistent approach to AAT reviews. The Public Interest Advocacy Centre, through its work on the NDIS, has been told by many stakeholders of instances where the NDIA will reopen every s 34 element for argument at the AAT, even if it previously agreed that certain criteria were met. This even includes reopening questions about a disability being ‘permanent’ even if that was previously accepted by the NDIA.

The Full Court observed at several points in its decision the way the NDIA had ‘reinvent[ed]’ and ‘reconstruct[ed]’ arguments it made before the AAT at merits review (see [206]). In fact, some of the NDIA’s arguments before the Court were in direct contradiction to its arguments before the AAT. The Court also said the NDIA was being ‘impermissibly pedantic’ about the AAT’s reasons, seeking to find error where there was none (at [257]). The Court’s observations may suggest the NDIA’s engagement at the AAT is not fully considered, which reflects the experiences of NDIS users, as told to the Public Interest Advocacy Centre.

3. What supports are ‘reasonable and necessary’ will depend on the participant’s circumstances, not on blanket policy positions

The Full Court reiterated that exclusions on what activities can be funded within the NDIS must be found within the NDIS Act or the NDIS Rules. Importantly, there are no limits or exclusions implied by the NDIS Act when it comes to physical intimacy. What supports are considered ‘reasonable and necessary’ will depend on the ‘highly individualised’ circumstances of each participant. But the context, objects and guiding principles of the NDIS Act must be considered (at [151]–[153]).

This includes values and principles which are referred to in the NDIS Act, such as autonomy, ‘best interests’, ‘exercising choice and control’, ‘participation in the community’, ‘full inclusion’, ‘potential for physical, social, emotional and intellectual development’, ‘respect for their worth and dignity’, ‘maximise their independence’ and ‘maximising independent lifestyles’ (at [142]).

The Court decided against laying out any general principle about the content or limits of the phrase ‘reasonable and necessary support’ and in fact indicated that it is unlikely that this could be done (at [252]). Except for where the NDIS Act or Rules expressly exclude a type of support, the Court makes clear that the legislation does not impose hard limits on what is ‘in’ and what is ‘out’ when it comes to reasonable and necessary supports (at [143]).

This means that where the NDIA refuses to fund a particular support because it is against NDIS ‘policy’, participants, advocates and lawyers should carefully consider whether this exclusion is actually found in the legislation or Rules, or whether it is simply a position the NDIA has taken. An example of another NDIA policy which does not appear in the legislation or Rules is the NDIA’s stated refusal to fund gym memberships (see: www.ndis.gov.au/participants/using-your-plan/managing-your-plan/support-budgets-your-plan).

Conclusion

The Full Court’s decision reveals there are many aspects of the NDIS legislation that remain to be tested and interpreted by the courts. One such example is the role of financial sustainability in determining what supports are ‘reasonable and necessary’. This means that on a day-to-day level, the NDIA may be taking approaches to decision-making which may not be aligned with the legislation and therefore could be wrong. As far as possible, participants, advocates and lawyers should be armed with this understanding to ensure fair and just outcomes.


Chadwick Wong is Senior Solicitor at the Public Interest Advocacy Centre.