NDIS minister Stuart Robert said the services ‘are not in line with community expectations of what are reasonable and necessary supports’

This article is more than 1 year old

This article is more than 1 year old

The National Disability Insurance Agency is set to appeal a tribunal decision that found a woman with multiple sclerosis had the right to have her sexual therapy funded by the insurance scheme.

In a setback for the agency, the Administrative Appeals Tribunal ruled the woman was entitled to the services of a sexual therapist specially trained in treating disabled people. The tribunal said she should receive $10,000 a year to fund the treatment.

The National Disability Insurance Agency has previously stressed it “does not cover sexual services, sexual therapy or sex workers in a participant’s NDIS plan” and the minister, Stuart Robert, confirmed on Thursday it would appeal to the federal court.

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Disability advocates labelled it a “fantastic win”, but expressed disappointment the tribunal stopped short of ruling that the disability scheme could also fund sex work services.

Instead, in a decision handed down this week, the tribunal sought to distinguish between the services of a sex worker and a sex therapist.

The tribunal’s deputy president, Brian Rayment, said the woman did not want funding to see a sex worker but “rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference”.

The woman, whose identity was not published, was described as in her 40s, single and had stopped seeking a partner when she was diagnosed with multiple sclerosis about 15 years ago.

“She has sexual needs,” Rayment said in the judgment.

“She attributes her inability to locate a partner to her disability, and has explained why that is so.”

The tribunal did not publish what Rayment said were “special features of the case” that meant it would be unlikely she could find a partner who could help her “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,” he said.

“Her condition also prevents her from masturbation.”

Matthew Bowden, the co-chief executive of People with Disability Australia, described the outcome as “a fantastic win for this woman with disability”.

“It acknowledges her right as a woman with disability to an ordinary life that includes sexual satisfaction and that her disability impacts directly on her ability to self-pleasure and in turn give sexual pleasure,” he said.

Bowden said a sex therapist “did not provide direct and hands-on sexual service – this is the work of sex workers, particularly those who have developed specialist skills in working with people with disability”.

He also warned the tribunal had made an “unnecessary distinction between sex therapy and sex work services”, which could “deny people with disability the same rights to sex as non-disabled people”.

“It is not the choice of the majority of people to access the support of a sex worker, however some people with disability do and we fully support that choice.”

In Denmark, sex work services are publicly funded for the disabled, while sex therapy is funded in other Nordic countries.

The NDIS minister, Stuart Robert, said the National Disability Insurance Agency would appeal the decision.

“The current position continues to be that the NDIS does not cover sexual services, sexual therapy or sex workers in a participant’s NDIS plan,” he said.

“These services are not in line with community expectations of what are reasonable and necessary supports.”

The agency has been reluctant to appeal cases to the federal court, which can risk setting a major precedent.

But Bowden said services that “facilitate sexual expression” had been a “long standing position of previously operating state disability services”.

“The public understands that if a person with disability is unable to reach their own genitals that paid assistance would be a reasonable and necessary support,” he said.

In his judgment, Rayment accepted the woman’s claim that achieving sexual release “as a result of the services of a specialised sex therapist” was “good for her mental wellbeing, her emotional wellbeing and her physical wellbeing”.

She had told the tribunal her mood was “less dull, it releases tension and anxiety, and improves her outlook on life”, Rayment said.

He also rejected evidence from an actuary for the NDIA – who questioned what might happen “if every person, male or female, married or unmarried, who suffered from multiple sclerosis, and certain other disabling diseases, sought a sex worker” – and the agency’s claim that the woman should fund the therapy through her disability support pension.

The woman had only been able to afford the therapy twice a year, and had sought funding for bimonthly sessions.

A spokeswoman for the NDIA said only that it was considering the decision.