NDIS funds may be used to pay for sex workers, court rules

People with disabilities can use National Disability Insurance Scheme funds to access specialised sex worker services, the federal court has ruled.

In a rebuke to the National Disability Insurance Agency, the federal court on Tuesday ruled unanimously in a favour of a woman who lives with multiple sclerosis and sought to include the services in her NDIS plan.

Despite the agency’s position that it “does not fund participation in sexual activity”, the federal court said the NDIS Act “does not expressly exclude such activities from being funded supports”.

“Nor has any exclusion been made under the NDIS Rules,” the court said in its judgment.

“In our opinion, there is no implied exclusion of such activities either, and indeed in our opinion the better view is that they are intended to be included.”

The woman, who is in her 40s and does not want to be identified, said on Tuesday the case had been a long and difficult ordeal.

Related: 'We are sexual beings': why disability advocates want the NDIS to cover sexual services

“I am very pleased about this decision, but it has been a very stressful process, that has dragged out for four years,” she said in a statement.

“The NDIA have been difficult to deal with. I want to thank my legal team very much.”

El Gibbs, a spokesperson for People with Disability Australia, said the woman at the centre of the case had “fought for years to have her right to equal access to ordinary sexual expression funded through her NDIS plan”.

“We urge the NDIS to accept this decision today, and allow people with disability to fund sexual expression through their plans,” Gibbs said.

Gibbs also welcomed the court clarifying that the case was about “access to specialist sex worker services”.

Last year, the NDIA immediately vowed to appeal after the Administrative Appeals Tribunal ruled the agency should provide the woman $10,000 a year to pursue “sexual release” via sexual therapy.

The woman had in fact been seeking sex worker services, rather than sexual therapy, which does not involve contact with a client.

The federal court said the tribunal understood “the services sought by the respondent, as revealed by the evidence, and chose to refer to it as ‘sexual therapy’ to distinguish it from what might be called standard prostitution services”.

In 2017, the NDIA publicly ruled it did not fund “sexual services, sexual therapy or sex workers in a participant’s NDIS plan” while last year the NDIS minister, Stuart Robert, said funding sex worker and sexual therapy services were not in line with community expectations.

A spokesman for Robert said on Tuesday the government was considering its response to the decision, “including possible changes to legislation”.

“While the government respects the court’s decision, the government does not believe that use of NDIS funds to pay for the services of a sex worker is in line with community expectations,” he said.

The spokesman said that would build on its “existing priority to resolve issues and areas of confusion in the interpretation and definition of ‘reasonable and necessary’”.

Disability advocates have claimed people had been able to use state-based funding for sexual services until the creation of NDIS.

Last year’s AAT decision noted the women’s disability meant it was unlikely she would be able to obtain “sexual release” by herself and was also unlikely to find a partner who could assist her to do so.

But the National Disability Insurance Scheme argued the services were not a “reasonable and necessary support” and if allowed more widely they presented a financial risk to the scheme.

In dismissing the agency’s appeal, Justices Geoffrey Flick, Debra Mortimer and Katrina Banks-Smith said many of the NDIA”s submissions “sought to either construe the reasons provided by the Tribunal in an impermissibly pedantic manner”.

The NDIA had told the federal court the tribunal “failed to properly consider whether it was reasonable to expect that satisfaction of sexual desires be sourced in the community”.

But the federal court said: “The Agency’s argument again operates in some kind of hypothetical universe, divorced from the way its own case was put to the Tribunal, and refusing to read the Tribunal’s reasons fairly.”

Disability advocates have called on the NDIA to formulate a sexuality policy to guide the agency in assessing requests to use NDIS funds for sex toys, dating support and sex worker services.

Saul Isbister, the president of Touching Base, which helps connect sex workers with people with disabilities, said it was important “paid sexual services are recognised as a legitimate option for people with disability, if they so choose”.

“People with disability, just like everyone else, want to enjoy consensual intimate experiences, as part of exploring their physical, social and emotional needs for sexual intimacy and sexual expression,” he said.

The agency may appeal to the high court. The NDIA and Robert have been approached for comment.