Grounds 4(m)-(r): erroneous construction and application of s 34 requirements
213 From [42]-[49] of the reasons, the Tribunal worked through each criterion in s 34(1). Its analysis is criticised by the Agency in grounds 4(m)-(r), developed at [62]-[68] of its written submissions. The criticisms are directed at the Tribunal's application of s 34(1)(b), (c), (d) and (e).
214 In respect of s 34(1)(b), the Agency locates the asserted error at [43] of the Tribunal's reasons, contending the Tribunal failed to identify the activities, participation in which will facilitate social participation. The criterion in s 34(1)(b) provides:
the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation …
215 The respondent submits, and we accept, that there is nothing in s 34(1)(b) requiring the specific identification of an activity which a support would assist a scheme participant to undertake.
216 As the Tribunal noted in the extract below, this criterion asks the decision-maker to focus on how a claimed support, if funded, might assist a participant to 'undertake activities'. That is, how does it help the participant to do this? That is precisely what the Tribunal focused on in [43] of its reasons.
217 The Tribunal found:
[43] … If one has a brighter mood, and a sense of wellbeing, then one is more ready to face the world. As I remarked above, the applicant has no loss of intellectual capacity and she desires to socialise as others do. She makes weekly visits to a social group … It is social participation to which one should attend when considering this part of s.34. She is, I find, better able to socialise if her mood is brighter, and she has a sense of wellbeing. She is therefore assisted in that respect.
218 The Agency's argument is another example of overly complicating both the statutory task, and what is required of a decision-maker by way of fact finding. It is obvious from the Tribunal's fact finding that it decided funding the provision of sexual services to the respondent would 'assist' the respondent's social participation. It found, in detailed and fact-specific reasons about the respondent's situation, which it repeatedly identified as unusual, that funding sexual services would allow the respondent to experience personal intimacy, and to experience sexual release. It then made findings about how this would assist the respondent's social participation. That was what the statutory task required of it.
219 In respect of s 34(1)(c), the Tribunal found:
[44] Section 34(1)(c): I have received evidence that the cost of the support on the basis claimed, that is, for therapy once a month, is reasonable having regard to market rates. The cost comes to $10,800 per annum. The benefits achieved support such an expense, as explained in general in these reasons and in more detail in the confidential reasons. There is no alternative support so far as the evidence reveals. This criterion is therefore satisfied.
220 Section 34(1)(c) provides:
the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support …
221 The Agency had contended the Tribunal could not be satisfied of this criterion largely based on the contents of the NDIS Rules, which it is accepted supplement and inform the way this criterion needs to be considered. As well as relying on its actuarial evidence, the Agency spent considerable time in its written submissions to the Tribunal on this criterion. It contended to the Tribunal that the following Rules were relevant to this criterion:
(a) r 3.1(a) - whether there are comparable supports, which would achieve the same outcome at a substantially lower cost;
(b) r 3.1(b) - whether there was evidence of substantial improvement in life-stage outcomes and long-term benefits;
(c) r 3.1(c) - likelihood of reduction of long-term funding; and
(d) r 3.1(f) - whether provision of the support would increase independence and reduce the need for other kinds of supports.
222 The Agency submitted on review that the Tribunal was required to apply these rules but failed to apply r 3.1(b), (c) and (f).
223 The Tribunal in fact looked in some detail at r 3.1(b) in its reasons at [46]-[47]. There is also some focus on the content of r 3.1(b), in terms of likely benefits to the respondent, in the Tribunal's confidential reasons. In our opinion what the Tribunal did at [46]-[47] was to run together its consideration of r 3.1(b) and r 3.2, because the concepts to which they were directed had some overlap. We are satisfied the Tribunal did take r 3.1(b) into account, and locating its discussion a little later in its reasons is not erroneous. The Agency's focus on this kind of minutiae does not raise any error which was material to the Tribunal's reasoning, or to the outcome of the review.
224 However, it is correct that in neither its open nor its confidential reasons does the Tribunal expressly refer to any consideration of r 3.1(c) and (f).
225 The respondent submits that she contended before the Tribunal that r 3.1(c) did not arise on the material before the Tribunal, that this was correct and therefore the absence of any references in the Tribunal's reasons to r 3.1(c) disclose no error. To the Tribunal, the respondent submitted:
So far as the matters which must be considered in NDIS Rule 3.1, it is submitted that, in Ms WRMF's case;
(a) There is no comparable support.
(b) The evidence cited above (paras 10, 11 and 13) is that Ms WRMF's engagement with her sex worker has substantially improved her life, and it is reasonable to suggest that her continued engagement with her sex worker will be of long term benefit to her.
(c) There is no evidence that provision of the support is likely to reduce the costs of funding of supports in the long term. This is because the support is for a service which is only effective to improve Ms WRMF's health and wellbeing for so long as it is provided to her, or until for whatever reason it may no longer be required. That being so the question raised by Rule 3.l(c) does not arise.
(d) The question raised by Rule 3.1(d) does not arise.
(e) Provision of a sex worker leading to an improvement in Ms WRMF's mood, her feeling less depressed, raising her self-esteem, and the release of tension and anxiety may reasonably be considered to increase her independence. Given the degenerative nature of her condition it is unlikely to reduce her need for physical supports or home care.
226 We accept that the Tribunal appears to have implicitly accepted this submission, by its clear focus in its fact finding on how the provision of this support would improve the respondent's health and well-being. A failure to refer to a matter expressly does not necessarily lead to a finding a matter has not been considered by a decision-maker: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ); and C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63 at [101] (Katzmann, Wigney and Abraham JJ).
227 The respondent submits that r 3.1(f) was addressed, in substance, at [16] of the Tribunal's reasons, by its finding that 'the services of a sexual therapist would improve the respondent's mood and demeanour, and enable her to more freely engage with people'. The respondent nominates [16] of the Tribunal's reasons, but this would appear to be a typographical error in the respondent's written submissions. The correct passage appears to be at [43].
228 Further, it is clear from the Tribunal's approach to the criterion in s 34(1)(c) that the Tribunal simply did not see any difficulty on the evidence in being satisfied about this criterion. It rejected the Agency's actuarial 'worst case scenario', as it was entitled to do. Having quantified the cost at $10,800 per annum, the Tribunal expressly found, relevantly to s 34(1)(c):
[44] … The benefits achieved support such an expense, as explained in general in these reasons and in more detail in the confidential reasons.
229 That finding amply covers, or reduces to insignificance, the matters referred to in the NDIS Rules on which the Agency relies to demonstrate error. We do not accept the Agency's submissions on this aspect.
230 In respect of s 34(1)(d), the Agency contends the Tribunal's findings were based on three matters, two of which it contends were erroneous on the basis of other aspects of its arguments (about s 14 and about the Tribunal's treatment of the claim as not being for a sex worker). We have explained why we see no such errors in the Tribunal's approach so these two arguments need not be further considered. The third reason given by the Agency in its submissions appears to criticise the Tribunal's failure to explain its finding about 'good practice'. Good practice is part of the criterion in s 34(1)(d):
the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice …
231 Rule 3.2 and r 3.3 of the NDIS Rules also relate to this criterion:
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
232 The Tribunal found:
[45] … The expertise of the sexual therapist, by reason of her specialist training, shows that the support claimed is consistent with good practice. This is a matter also discussed in the confidential reasons in somewhat greater detail.
233 The Agency had contended before the Tribunal that:
The Agency maintains its submission that there is no evidence by way of published or referred literature, nor an accepted consensus of opinion to support the use of sex workers for persons with disabilities. Further, there is no probative clinical opinion before the Tribunal that the use of a sex worker by the Applicant will be effective and beneficial. Both the Applicant and her counsellor Ms Dore have given evidence only of a generalised opinion that it would improve the Applicant's wellbeing.
234 The Tribunal plainly found the evidence of the respondent, including her evidence about her previous use of sex workers with specialised experience and knowledge, to be persuasive. As it explained, in its confidential reasons it expanded on the evidence it found persuasive, and on the factual findings which flowed from it. This was overwhelmingly the evidence of the respondent. The Tribunal was entitled to take that approach. It was entitled to accept the respondent's evidence that she found the sex workers she used had engaged in 'good practice'. The Tribunal was aware the sex worker was affiliated with the Organisation, and was entitled to regard the Organisation as one of some repute in the specialised field in which it operated. As r 3.2 makes clear, an assessment of 'good practice' can include 'the lived experience of the participant or their carers'. When the subject matter of the claimed support is taken into account, it is readily understandable why the Tribunal might place most weight on the evidence of the respondent herself in this regard. How published literature could have taken the matter any further is difficult to understand, and was not developed by the Agency. There could be little doubt that the review was always going to be substantially affected, in terms of its outcome, by the reliability and weight the Tribunal was prepared to attach to the evidence of the respondent. That is what occurred, in the respondent's favour. However, the converse could also have occurred. That is all part of the merits review process.
235 The Tribunal did not rely on Ms Dore's evidence. Its decision not to rely on her evidence also illustrates that the Tribunal was not approaching its fact finding in some blanket or unsophisticated way: it was evaluating the evidence carefully, giving weight to some parts and not to others.
236 Another argument made by the Agency is that in its consideration of s 34(1)(d), the Tribunal failed to have regard to, or apply the terms of, r 3.2 and r 3.3, and instead took into account r 3.1(b), which the Agency submits is not applicable to s 34(1)(d).
237 The Agency is correct that there are no express references in the Tribunal's reasons to r 3.2 and r 3.3. As we have noted in response to the previous argument, the Tribunal referred to 'good practice', which is the subject of r 3.2, and to Ms Dore's opinions, which are capable of falling within the subject of r 3.3. That is sufficient.
238 While s 34(2) does, in effect, require that a decision-maker (CEO, delegate or Tribunal) take into account matters set out in the NDIS Rules in being satisfied of the matters in s 34, that may occur without any express reference to the particular provision: see WAEE and C7A above. In the present case there is reference to the content of r 3.2 (the 'good practice' reference) and there is reference to what is capable of being considered expert opinion (that of Ms Dore).
239 The Tribunal took Ms Dore's expert opinion into account. It did not rely on it, but of course r 3.3 does not and could not require that next step. The only expert opinion by a witness proffered by the Agency was the actuarial evidence, which the Tribunal also took into account, but did not rely on. There is no error in the Tribunal's approach.
240 It is correct, as the Agency submits, that the Tribunal's reasons refer to r 3.1(b) in that section of its reasons dealing with s 34(1)(d), rather than the section dealing with s 34(1)(c). It can also be accepted that r 3.1, which is headed 'Value for money', contains text that is almost identical to s 34(1)(c), and is directed at that criterion.
241 That said, the aspect of r 3.1(b) which the Tribunal's reasons in substance pick up (improvement of life stage outcomes and long-term benefits) overlaps with the key aspect of s 34(1)(d), which is whether a support will be 'effective and beneficial for the participant'. Both ask the decision-maker to examine the benefits to a participant.
242 In the relevant passage, the Tribunal found:
[47] The respondent submits that the mandatory consideration in rule 3.1(b) is not satisfied. In the previous paragraph of these reasons I have made findings that precisely satisfy s.34(1)(d), which uses the language of 'effective' and 'beneficial'. That part of rule 3.1(b) which refers to substantial improvement of the life stage outcomes of the participant appears to me to be satisfied for the same reasons. As to whether the benefits derived will be long-term, it needs to be borne in mind that the applicant seeks bimonthly therapy. She has been able to afford it only twice per year. The plan and statement of supports will endure for one year and will then be reviewed. That is no doubt to take account of possible changes in the circumstances of the applicant, and other changes of circumstance. Whether a particular support will continue to be of benefit to the applicant is capable of being periodically reviewed. Presumably so long as her circumstances remain the same the support will remain. Those matters seem to me to be relevant to the mandatory consideration in rule 3.1(b), which is phrased in somewhat abstract terms. So far as can be seen from the evidence before the Tribunal, the benefits that she will derive from the support will continue for the duration of this plan, and, unless some of the circumstances of the applicant change, thereafter for an open-ended period. That would seem to involve that the benefits derived by the applicant will be of a long-term nature. Unless the support funded is of a nature that is permanent (like a wheelchair), long term benefit may be difficult to discover. If the support is of short-term benefit, it is possible to conclude, as in this case, that its continued application will be of long-term benefit. In any event, the mandatory consideration in rule 3.1(b) compels no different view about whether the support satisfies s.34(1)(d).
243 In the first sentence of this paragraph, the Tribunal was highlighting the overlap between the content of the NDIS Rules. The finding in the next sentence, about long-term benefits, is not in our opinion the product of the Tribunal misunderstanding the criterion to which r 3.1(b) applies. Rather, the Tribunal was making the point that, because of the overlap, its finding about 'benefits' applied to both s 34(1)(c) and s 34(1)(d), read with the NDIS Rules. It then went on, in the rest of this paragraph, to explain why it was satisfied there would be a long-term benefit to the respondent. In our opinion, despite its placement, it is clear the Tribunal understood this factor related to the 'value for money' criterion.
244 The Agency has further criticisms of this part of the Tribunal's reasons. It also contends that the Tribunal's finding about long-term benefit was impermissibly based on a 'presumption of ongoing funding'.
245 The Tribunal refers to the fact that the plan and statement will last a year and then be reviewed. It refers to the need on review to take account of 'possible changes in the circumstances' of the respondent, and 'other changes of circumstance'. It refers to whether a particular support will continue to be of benefit as a matter which will be reviewed. In that context when it then states that '[p]resumably so long as her circumstances remain the same the support will remain', and like expressions following this, it is doing no more than pointing to what ought to be regarded as a feature of the legislative scheme in Ch 3. That is, supports which have been found to be reasonable and necessary supports and which continue to provide benefits to a participant, where there are no changes in the circumstances either of the participant or otherwise, are likely to continue to be available. If that were not the case, the scheme might operate in an entirely arbitrary and capricious way, structured as it is around one-year plans. We reject the contention the Tribunal applied some kind of impermissible presumption in these passages, which caused its task to miscarry.
246 Finally, the Agency also challenges the Tribunal's treatment of the criterion in s 34(1)(e). That criterion is:
the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide …
247 This criterion is addressed by the Tribunal as follows:
[48] Section 34(1)(e): The support claimed is incapable of being provided otherwise than by a sexual therapist, and the funding of it is agreed by the parties to be inappropriate for others mentioned in this sub-paragraph. The respondent submits that the community ought to provide the support because it is reasonable to expect the community to provide the source of a sexual partner, rather than a specially trained sex therapist. I have effectively already rejected those submissions in [3], [4], [9], and [34] and in the confidential reasons. The applicant at one stage attempted to locate a partner and has ceased to do so, and believes she will never have one. If she did have a partner, she could not stimulate that person, and it seems very unlikely that a partner would undertake the activities which the trained therapist would perform to enable the applicant to achieve such form of release as she is capable of achieving. Again, the respondent challenges the evidence given by the counsellor in support of the applicant, but not the evidence given by the applicant, and I do not need to place reliance upon the counsellor's supportive evidence.
248 The Agency's criticism is that the criterion focuses on what it is 'reasonable to expect' the community to provide, and contends:
the Tribunal failed to properly consider whether it was reasonable to expect that satisfaction of sexual desires be sourced in the community.
249 The short answer to this is that the paragraph itself addresses the submissions as put by the Agency, and addresses the question posed by s 34(1)(e). 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. In both [48] and in its confidential reasons, the Tribunal made it very clear that the view it had formed was that it was not reasonable to expect this kind of support to be provided by 'members of the community', in the sense the Agency uses that term to mean prospective partners. The Tribunal accepted the respondent's evidence that she held no hope of ever finding such a partner, nor finding a person who would choose to engage in sexual activities with her, and indeed who could do so. The Tribunal plainly considered that evidence to be reliable, and reasonable. Its confidential reasons make this very clear. This ground is baseless and should be rejected.