FEDERAL COURT OF AUSTRALIA

National Disability Insurance Agency v WRMF [2020] FCAFC 79

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant pay the respondent's costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The National Disability Insurance Scheme (NDIS) was established by the National Disability Insurance Scheme Act 2013 (Cth) to provide funding directly to eligible persons with disabilities for support and services.

2    The National Disability Insurance Agency (Agency) is responsible for decisions about whether a person is eligible to participate in the NDIS and the nature of any supports and services that it provides or that it may fund. In summary, if a person is considered eligible, a plan is created that outlines the person's goals, the supports needed to help achieve those goals, and the funding available to the person. The plan must be approved by the Agency.

3    The respondent is a woman in her 40s with multiple sclerosis and a range of other related serious medical conditions. She was diagnosed with multiple sclerosis over 17 years ago and, relevantly, since that time has been single for reasons she attributes to her complex medical conditions. Prior to her illnesses the respondent had an active sex life, but her medical conditions are such that the prospect for her of sexual release of any kind without assistance is highly unlikely.

4    In July 2016 the respondent was accepted to participate in the NDIS. By her plan, the respondent sought support under the NDIS for a range of matters, including funding for services of a person described as a sex worker. The description and nature of the claimed support is in issue in this appeal.

5    In August 2017 a delegate informed the respondent that the Agency had declined her request for such funding on the basis that it was not a reasonable and necessary support.

6    The respondent sought review of that decision from the Administrative Appeals Tribunal. The Tribunal described the claimed support as a specially trained sex therapist. The Tribunal set aside the reviewable decision and ordered that it be remitted for reconsideration with the direction that the support claimed, at the level claimed, is a reasonable and necessary support.

7    The Agency appeals from the Tribunal's decision.

The statutory context

8    Chapter 1 of the Act sets out preliminary matters including objects, principles and definitions. Section 3(1) relevantly provides:

(1)    The objects of this Act are to:

(a)    in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

(b)    provide for the National Disability Insurance Scheme in Australia; and

(c)    support the independence and social and economic participation of people with disability; and

(d)    provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

(e)    enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

(f)    facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

(g)    promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; …

9    Section 3(2) relevantly provides that the objects are to be achieved by:

(b)    adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; …

10    Section 3(3) relevantly provides that in giving effect to the objects of the Act, regard is to be had to:

(b)    the need to ensure the financial sustainability of the National Disability Insurance Scheme; …

11    Section 4 sets out a large number of 'General principles guiding actions under this Act'. Despite their number, there is value in including all the stated principles:

(1)    People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2)    People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

(3)    People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

(4)    People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5)    People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

(6)    People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

(7)    People with disability have the same right as other members of Australian society to pursue any grievance.

(8)    People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.

(9)    People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

(10)    People with disability should have their privacy and dignity respected.

(11)    Reasonable and necessary supports for people with disability should:

(a)    support people with disability to pursue their goals and maximise their independence; and

(b)    support people with disability to live independently and to be included in the community as fully participating citizens; and

(c)    develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

(12)    The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

(13)    The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:

(a)    promoting their independence and social and economic participation; and

(b)    promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and

(c)    maximising independent lifestyles of people with disability and their full inclusion in the community.

(14)    People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.

(15)    Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

(16)    Positive personal and social development of people with disability, including children and young people, is to be promoted.

(17)    It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:

(a)    the progressive implementation of the National Disability Insurance Scheme; and

(b)    the need to ensure the financial sustainability of the National Disability Insurance Scheme.

12    Chapter 2 of the Act is headed 'Assistance for people with disability and others'. Relevantly, s 13 provides that:

(1)    The Agency may provide general supports to, or in relation to, people with disability who are not participants.

(2)    In this Act:

general support means:

(a)    a service provided by the Agency to a person; or

(b)    an activity engaged in by the Agency in relation to a person;

that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.

13    Section 14 then provides that:

The Agency may provide assistance in the form of funding for persons or entities:

(a)    for the purposes of enabling those persons or entities to assist people with disability to:

(i)    realise their potential for physical, social, emotional and intellectual development; and

(ii)    participate in social and economic life; and

(b)    otherwise in the performance of the Agency's functions

14    Chapter 3 of the Act is headed 'Participants and their plans'. It provides that a person may request to become a participant, and allows for the Chief Executive Officer of the Agency to decide whether or not the prospective participant meets the prescribed criteria, which include age, residence and disability requirements. Under s 28, a person becomes a participant in the NDIS when the CEO decides that the criteria are met.

15    Chapter 3 also deals with 'Participant's plans'. Section 31 provides as follows:

The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:

(a)    be individualised; and

(b)    be directed by the participant; and

(c)    where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

(d)    where possible, strengthen and build capacity of families and carers to support participants who are children; and

(da)    if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and

(e)    consider the availability to the participant of informal support and other support services generally available to any person in the community; and

(f)    support communities to respond to the individual goals and needs of participants; and

(g)    be underpinned by the right of the participant to exercise control over his or her own life; and

(h)    advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i)    maximise the choice and independence of the participant; and

(j)    facilitate tailored and flexible responses to the individual goals and needs of the participant; and

(k)    provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

16    Section 32 provides that the CEO 'must facilitate the preparation of the participant's plans'.

17    Section 33 relevantly provides as follows:

Matters that must be included in a participant's plan

(1)    A participant's plan must include a statement (the participant's statement of goals and aspirations) prepared by the participant that specifies:

(a)    the goals, objectives and aspirations of the participant; and

(b)    the environmental and personal context of the participant's living, including the participant's:

(i)    living arrangements; and

(ii)    informal community supports and other community supports; and

(iii)    social and economic participation.

(2)    A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

(a)    the general supports (if any) that will be provided to, or in relation to, the participant; and

(b)    the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; …

18    Section 34 provides as follows:

Reasonable and necessary supports

(1)    For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(a)    the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b)    the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c)    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;

(d)    the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e)    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;

(f)    the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i)    as part of a universal service obligation; or

(ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(2)    The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

19    The Act also provides for rules about the funding or provision of reasonable and necessary supports. Section 35(1) relevantly provides as follows:

(1)    The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:

(a)    methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

(b)    reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

(c)    reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.

20    Rules have been made for the purpose of s 33 and s 34 of the Act, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (NDIS Rules). To the extent particular rules are relevant, they are addressed in the context of ground 4 of the appeal below.

21    A further description of the scheme of the Act and additional sections are also included and addressed in some detail in the context of ground 4 of the appeal below.

22    The decision of the CEO by way of approval of a plan under s 33(2) of the Act is a reviewable decision (s 99 of the Act), and so reviewable by the Tribunal in accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Such an appeal is confined by s 44 of the AAT Act to a question of law.

The respondent's plan and the reviewable decision

23    In July 2016 the Agency formally advised the respondent that she met the access requirements and was accepted as a participant in the NDIS.

24    In September 2016 the respondent completed an NDIS Planning Workbook prepared by the support group 'Aftercare', which was not a formal part of the Agency's planning process but which was clearly aimed at facilitating a participant to set out personal information about themselves and about such matters as their informal supports, learning skills, general tasks for which assistance is required, self-care, and interpersonal interaction and relationships. According to the Workbook, it provided an opportunity to 'let [the Agency] know who you are and what you need now and in the future'. As the legal representative for the Agency described it before the Tribunal, the participant assists with production of the plan by production of the Workbook. In her completed Workbook, the respondent identified the 'people who currently help me with my interactions and relationships' as a psychologist from whom she received weekly support and a sex worker from whom she received occasional visits. The respondent also noted 'people who currently provide me with my community and social participation', listing the sex worker, taxis, community transport and a representative from 'Aftercare'. The Workbook also included a section for the participant to identify matters relating to community and social participation for which she needs assistance and the level of required assistance by checking items in a list. Next to the item 'Engaging in loving and intimate relationships', the respondent checked that she 'always' needed assistance.

25    It is apparent from various files notes that the respondent met with her support worker and Agency representatives in October 2016, and the respondent raised that one of her priorities was to access funding for an adult sexual service in the home, one author noting that:

… she is unable to access the community to meet sexual partners. Also that because of her disability she is physically unable to reach climax unassisted. This has led to physical stress and low self-esteem.

26    On 19 October 2016 a clinical psychologist, Ms Elizabeth Stanton, provided a report:

… in support of [the respondent's] application to obtain funding from the NDIS to increase the frequency of services that she receives from the sex worker whom she has been in contact with.

I have been working with [the respondent] since 2014. Our appointments have occurred every few months as needed. I am pleased to report that at present [the respondent] is progressing very well from an emotional point of view. I believe that these improvements can be attribute to changes [the respondent] has made in her communication styles and conflict resolution. I also believe that contact with her sex worker has also significantly improved her mood and confidence. [The respondent] reports that she does benefit significantly from this contact … some funding would continue to allow her to engage in this beneficial relationship.

27    There was a further discussion between officers of the Agency and the respondent in November 2016, recorded in an internal file note of 18 November 2016 that states:

Phone call to [the respondent] was carried on the 01/11/2016 as she had requested to speak to planner regarding her request for her adult services to be funded by the NDIS.

It was discussed with [the respondent] that with the information provided that funding has been allocated for assistance for her to increase her community, social and civic participation as the primary reason for needing this support was due to her not being able to access the community to meet sexual partners. It was explained that she could use her funding under her core funding to assist with accessing these services but not the service itself.

28    Various internal emails from 28 March 2017 reflect that although at one point it appeared that funding might have been informally approved, the Agency's position was that the NDIS 'does not pay for sex workers'.

29    On 2 June 2017 the Agency released a media statement apparently responding to media reports about a range of funded services, and relevantly noting:

The NDIA does not cover sexual services, sexual therapy or sex workers in a participant's NDIS plan.

A plan may include psychological counselling or physical therapy to help someone understand and overcome a physical impediment to intercourse but does not fund sexual services.

30    Between 10 October 2016 and 23 February 2017 the respondent entered into five separate participant plans, each of which was approved by the Agency. None addressed support for a sex worker or sexual therapist.

31    By letter dated 13 March 2017 the Agency wrote to the respondent and confirmed that it had approved a sixth plan which again did not address support for a sex worker or sexual therapist. The letter informed the respondent that she could seek internal review of the decision reflected in the letter.

32    The format of a plan was standard, each running to about five pages and comprising three parts. Each plan set out its start date and end date (a 12 months period).

33    Part 1 includes a description of the participant, where she lives and the people who support her, and her daily life.

34    Part 2 lists the participant's goals. In her sixth plan, there were four stated goals: to continue living as independently as possible and be able to complete her daily activities and routines; to maintain and improve her mobility to continue to be as independent as possible; to maintain her health and wellbeing; and to participate in social and leisure activities so that she can improve her self-confidence and increase her emotional resilience.

35    Part 3 lists 'supports that will help me work towards my goals'. For example, it lists her informal supports, being family. It lists her 'community and mainstream supports' including medical and health services. It then lists her 'NDIS reasonable and necessary supports budget'. In the case of the sixth plan, it lists a budget for 'assistive technology' (disability specific equipment); 'improved life choices' (financial intermediary costs); 'improved daily living' (funding for an allied health professional to assist with mobility and home modifications); 'increased social and community participation' (funding for community activities); home modifications (funding for handrails); transport; and 'core supports' (funding for self-care activities, linen, house cleaning, meals and group-based activities).

36    It is the exclusion of any funding for sexual services from Part 3 that informed the respondent of the decision to deny that claimed support.

37    In June 2017 the Agency informed the respondent that the request for payment for '[a] sex worker' was still pending.

38    On 19 June 2017 the respondent sought an internal review of the decision of 13 March 2017. A delegate of the CEO conducted the review. By letter dated 16 August 2017 the Agency informed the respondent that her request for funding 'for sex workers' was declined on the basis that the requested support did not meet the s 34(1)(e) criteria: that is, 'whether the funding reflects what it is reasonable to expect families, carers and the community to provide.' The letter stated:

As we discussed, I am not satisfied Section 34(1)(e) of these criteria have been met.

The reason/s the supports do not meet this criteria are as follows:

Section 34(1)(e)

I am not satisfied that this criteria is met as The NDIA does not cover sexual services, sexual therapy or set workers in a participant's DNIS plan as per NDIA media release of 2 June 2017.

A plan may include psychological counselling or physical therapy to help someone understand and overcome a physical impediment to intercourse but does not fund sexual services.

It does not satisfy this criteria as sexual activities are activities all Australians decide on whether they would like to pursue or purchase. It is not a disability specific need. The budget may be used for a support worker to assist you to access the location, however not the act itself.

On the basis of these reasons, I have decided not to change the original decision for NDIA not to fund sex workers.

39    The respondent then sought review of the delegate's decision by the Tribunal, identifying the decision sought to be reviewed as follows:

The NDIA have made the decision that funding for sex workers is not a reasonable and necessary support under section 34 of the NDIS Act. Specifically s 34(1)(e) was not met.

40    It will be necessary to return to the manner in which the respondent's claim was addressed and described during the course of the Tribunal hearing, but it is sufficient by way of introduction to note that in her statement filed in the application before the Tribunal, the respondent described her appeal as follows:

My appeal is about whether it is reasonable and necessary for the National Disability Insurance Agency (NDIA) to include funding for sexual services in my National Disability Insurance Scheme (NDIS) Plan.

The Tribunal's decision

41    The Tribunal commenced by describing the support requested by the respondent (references in the reasons to the 'applicant' being references to the respondent on this appeal):

[1]    In this review, the applicant claims that her particular circumstances as a participant in the National Disability Insurance Scheme produce the result that she has a need for funding from the Scheme for a reasonable and necessary support. The support is requested for the services of a sexual therapist, specially trained in treating disabled persons.

42    The Tribunal then noted the sensitive nature of much of the evidence as to the effect of the respondent's disability on her sex life. The respondent disclosed very particular details of her medical conditions and the physical effects of such conditions, and the Tribunal quite properly chose to suppress those details from the public record of its reasons, and instead chose to provide separate confidential reasons. The parties have those confidential reasons. It was not relevantly in issue on the appeal that the respondent suffers from significant medical conditions that prevent her from participation in a mutually fulfilling sexual relationship and that otherwise prevent her from obtaining sexual release in any unassisted manner. It is not necessary to descend into further details for the purpose of the appeal.

43    The Tribunal then said as follows:

[3]    I should stress that this case does not, in my opinion, throw up for decision the question whether the services of a sex worker ought, on the proper construction of the Act to be funded for persons with a disability if their needs require it. The applicant does not seek the services of a sex worker. Rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference. She seeks those services not because she does not have a life partner (although she does not have or expect ever to have a partner). As will appear from the confidential section of these reasons, a partner from the community would be unlikely, because of special features of the case, to be willing or able to provide the kind of services the applicant requires in order to 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. Her condition also prevents her from masturbation.

[4]    The respondent submits that the applicant is seeking the services of a replacement sexual partner. In one sense, that is true, if one focuses only on the sexual release which is the intended result of sexual congress. The word 'partner' suggests a more permanent relationship than the applicant seeks. Nor do I accept that the applicant is seeking a 'paid friend' as the respondent seems also to submit. The respondent says that the funding claimed is neither for a support, nor for a reasonable and necessary support contemplated or supported by the general principles of the Act.

[5]    The word 'support' is a description of a class which includes general supports and reasonable and necessary supports. General supports means services provided by the agency and reasonable and necessary supports which are funded by the agency. There is no question of general supports in this case, and the question whether this is a support comes down to what I regard as the critical question in this case, whether the applicant is entitled to the reasonable and necessary support claimed. The concept of a support is not defined, except by saying that it includes general supports. It means the same as 'assistance', and so understood, it is satisfied when one considers what the applicant claims.

[6]    The question whether the support claimed is a reasonable and necessary support is the ultimate question in this case, and is the subject matter of these reasons.

[7]    To a certain extent the evidence and issues argued on this review have ranged beyond the particular facts and circumstances of the case, and have dealt with the more general question whether the services of a sex worker can be a reasonable and necessary support for a disabled person. That sort of question, if it ever arises, is one on which strong views might be held, perhaps on both sides of the issue, by the community, whose funds are used to meet government expenditure. There is a facility in the Act for such a question to be dealt with by representative governments rather than by the executive (including this Tribunal) simply construing the Act and applying it to the particular facts and circumstances of the case. That facility is contained in s.35(1)(b) of the Act, which enables rules to be made prescribing reasonable and necessary supports that will not be funded under the National Disability Insurance Scheme. Such rules need to have the unanimous agreement of the host jurisdictions, therefore including the States and the Commonwealth, all of which contribute funds to pay for the Scheme. The requirement for unanimity arises from s.209 of the Act. Such a rule may be made either in advance of or after a decision has been made by the executive about the way in which the Act operates. If such a rule is passed, it will bind the executive arm of government to give effect to it. Otherwise, the executive will be required to decide the legal and factual questions arising under the Act as it stands. For the most part, although some evaluative questions arise if the matter is approached in that way, few discretionary decisions under the Act. No political considerations are relevant to be taken into account by the executive, including this Tribunal. Such considerations will be taken into account by representative governments deciding whether or not to make a special rule under s.35(1). Of course, the States and the Commonwealth may not be able to agree.

[8]    As will appear, the general question to which I have referred in [3] and [7] above does not arise in this case, because the review is concerned with the particular circumstances of the applicant, and they are, as I have said, very unusual. I will not deal with any considerations relating only to the general question, because it is not necessary to decide the general question to deal with the issue arising on the review, and since decisions of this Tribunal are normative both within the Tribunal and within the agency, care ought to be taken in this Tribunal to decide no more than is necessary to be decided on a review.

(footnote omitted)

44    The Tribunal then addressed the meaning of 'reasonable and necessary' supports, noting the expression is not defined and citing McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121 (Mortimer J):

[41]    Although the phrase 'reasonable and necessary supports' is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially in my opinion s 4(11), which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.

45    The Tribunal in particular gained assistance from the objects referred to in s 3(1)(c), (e) and (g) of the Act, particularly when read with s 4, relevantly stating:

[23]    Section 4(1) of the Act makes it a general principle guiding actions under the Act that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. This principle seems to be aimed at bringing about, to the extent practicable, equality between people with a disability and others in the society, in a matter going to physical, social, emotional or intellectual development, The Act intends that the executive will recognise rights to such development equally with others, to the extent possible.

[24]    Section 4(3) provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. The word 'need' in that section seems to me to bear its ordinary English meaning, and that suggests to me in turn that the word 'necessary' in the expression 'reasonable and necessary supports' also bears its ordinary English meaning. One should ask in that respect: does the support fulfil a need of the participant? The word will extend to a health need, but is not limited to health needs.

46    The Tribunal then noted the significance of s 4(11) and its express description of reasonable and necessary supports, stating:

[31]    Section 4(11) states that reasonable and necessary supports for people with disability should support such persons to pursue their goals and maximise their independence; and support them to live independently and to be included in the community as fully participating citizens, and to develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. If something about the disabled person means that he or she is not able to be included in the community as a fully participating citizen, and a reasonable and necessary support will avoid that result, it will be appropriate for it to be provided.

47    The Tribunal relied on s 14:

[34]    Section 14 of the Act tends to support the view that the support claimed in this case is a reasonable and necessary support, because of some of the evidence given in the case. Her response to her achievement of sexual release (to the extent to which she is able to obtain such release) as a result of the services of a specialised sex therapist were described by the applicant in evidence which I accept as good for her mental wellbeing, her emotional wellbeing and her physical wellbeing at Transcript page 18, where she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life.

[35]    Therefore funding for a specialised sex therapist to provide the services in question seems to me to be funding which will be for the purpose mentioned in s.14(a) of the Act.

[36]    The relevant presently important themes suggested to me by the objects and guiding principles of the Act referred to above also seem to me to support the view that the support claimed is a reasonable and necessary support, subject to what is said below about s.34 of the Act. Those themes are freedom of choice, the need (at least in some respects) to seek to place persons with a disability in a situation where they are not disadvantaged by comparison with those who do not have a disability, supporting persons with a disability to participate in and contribute to social and economic life to the extent of their capacity, maximising their independence, and their ability to make choices. The applicant chooses to have the services of a sexual therapist. Most people do not need such services to achieve sexual release, so in a sense she is put on a par with others as far as she can be. As I have found, the support will help her realise her potential for social and emotional development and to participate in social life.

48    Before turning to s 34, the Tribunal noted the need to ensure financial sustainability of the NDIS and considered the actuarial evidence that had been provided by the Agency. It dismissed the value of that evidence, noting that:

[37]    … That evidence was of a worst case scenario. It examined the position if every person, male or female, married or unmarried, who suffered from multiple sclerosis, and certain other disabling diseases, sought a sex worker. I do not understand myself to be dealing with any such case, nor to be deciding what should happen in such a case. As I have said, it is not the case that the applicant seeks services provided by a sex worker. Such services would not be of help to her. She happens to be in such circumstances, referred to in the confidential reasons, that the only help she can usefully have to reach sexual release, to the extent to which she can, is by means of the qualified and trained sexual therapist whose services she seeks. She does not have a need likely to be capable of being met by a partner and she has no partner. The financial sustainability of the scheme is not threatened by funding the support which she seeks.

49    The Tribunal then turned to each of the matters in s 34 that it considered relevant.

50    As to s 34(1)(a) and the respondent's goal to maintain her health and wellbeing, the Tribunal accepted the respondent's evidence that sexual release and the generation of pleasure with the assistance of a sex therapist with disability training will assist her wellbeing (at [42]).

51    As to s 34(1)(b) and whether the requested support will assist the respondent to engage in activities, the Tribunal had regard to the respondent's social (not economic) participation and considered that the respondent would be better able to socialise if her mood is brighter and she has a sense of wellbeing (at [43]).

52    As to s 34(1)(c), the Tribunal had regard to evidence to the effect that the annual costs for therapy once a month would be $10,800 and considered the benefits achieved would support such an expense, noting there was no evidence of alternative support (at [44]).

53    As to s 34(1)(d), the Tribunal rejected the Agency's submissions that the services of an occupational therapist or provision of specific equipment were viable alternatives and accepted the respondent's evidence that her experience was that the support she seeks will be effective and beneficial to her. The Tribunal stated that the support claimed is consistent with good practice in that the sexual therapist has expertise by reason of her specialist training (at [45]).

54    As to s 34(1)(e), the Tribunal rejected the Agency's argument that it was reasonable to expect the community to provide the source of a sexual partner, accepting the respondent's evidence that she had been unable to find a partner in the community and finding that it was very unlikely that a partner would undertake the activities that the trained therapist would perform to enable the respondent to achieve some form of release (it was accepted by the parties that it would be inappropriate to expect families, carers or informal networks to fund such supports) (at [48]).

55    As to s 34(1)(f), the Tribunal rejected the Agency's contention that the support would more appropriately be funded out of her disability support pension, noting (amongst other things) that the disability support pension is not paid in order to provide funding for the purposes for which the NDIS was established (at [49]-[53]).

56    The Tribunal concluded that the reviewable decision should be set aside and remitted with a direction that the support claimed, at the level claimed, is a reasonable and necessary support (at [54]).

Grounds of appeal

57    Six questions of law were said to be raised in the appeal, more fully explained in five grounds of appeal, some of which have many parts. A sixth ground was abandoned prior to the hearing.

58    In summary, grounds 1 and 2 cover similar ground and allege that the Tribunal failed to accord the Agency procedural fairness or failed to perform its statutory task because it considered the question of support to the respondent from a sex therapist when the respondent's claim was based upon seeking a different and specific support, being support from a sex worker. Ground 3 contends that the Tribunal made various findings of fact that were not open to it because there was no relevant supportive evidence. Ground 4 challenges the Tribunal's approach to whether the claimed support could be found to be 'reasonable and necessary'. Ground 5 alleges a failure to provide adequate reasons on a narrow question of fact.

Grounds 1 and 2

59    The Agency contends that the Tribunal did not alert the parties to the possibility that it might apply a 'binary and mutually exclusive distinction' between the terms 'sex therapist' and 'sex worker'. It contends that the Tribunal wrongly and without notice to the parties re-characterised the claimed support as a request 'for the services of a sexual therapist, specially trained in treating disabled persons' and then determined the case on the basis that the respondent's case was not a case about sex worker funding at all, but rather a case about funding of a 'specially trained sex therapist'. It submits that it was denied the opportunity to be heard on the different case it asserts was enunciated by the Tribunal.

60    This argument forms the basis of grounds 1 and 2. By ground 1 the Agency asserts it was denied procedural fairness by the Tribunal. By ground 2 it asserts the Tribunal failed to perform its statutory task in that it failed to determine the question of whether support by way of a sex worker was a reasonable and necessary support, that being the nature of the respondent's claim, and failed to engage in an active intellectual process directed at the correct question.

Principles

61    Expressed generally, the exercise of statutory power is conditioned by the requirement that it be exercised in compliance with the rules of procedural fairness: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [55] (Gageler and Gordon JJ); and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [59] (Gaudron and Gummow JJ).

62    Relevant for present purposes is the procedural fairness obligation that a decision-maker provide parties before it with an opportunity to be heard and present their case: WZARH at [55] (Gageler and Gordon JJ).

63    In addition to the obligation implied by the common law, s 39(1) of the AAT Act provides that:

(1)    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

64    Section 39(1) is a 'statutory recognition of an obligation the common law would in any event imply': Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [32] (Dowsett, Murphy and White JJ), citing Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (Deane J); and De Simone v Commissioner of Taxation [2009] FCAFC 181 at [15] (Sundberg, Stone and Edmonds JJ).

65    Section 39(1) requires that the Tribunal 'ensure' that a party is afforded a reasonable opportunity to present its case. As explained by Flick J in Kohli v Minister for Immigration and Border Protection [2018] FCA 540:

[17]    The section imposes upon the Tribunal a requirement not only to conduct a hearing in a procedurally fair manner but to 'ensure' that a party has such an opportunity. The Tribunal, at least to this extent, is not a passive by-stander in the hearing as it progresses; it is the body entrusted with the responsibility to 'ensure' that a party has a reasonable opportunity to present his case.

66    One way in which a decision-maker may deny a party the fair opportunity to be heard is by failing to alert the party of an issue which it considers to be important if that issue goes beyond those considered by the parties.

67    This principle was expressed by a unanimous High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 as follows (citations omitted):

[83]    Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.

68    The Full Court in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 (Besanko, Gleeson and Burley JJ) explained further as follows:

[38]    Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject's case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 ('Alphaone') at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

69    The Full Court's statement above indicates that the Agency was entitled to respond to any adverse conclusion drawn on the materials before the Tribunal which is not an obvious and natural evaluation of that material. Put another way, the Agency was entitled to be directed to the critical issues on which the Tribunal was likely to decide unless recognition of such issues was, from the material, an obvious and natural conclusion to draw: Degning v Minister for Home Affairs [2019] FCAFC 67 at [12] (Allsop CJ), citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 590-591; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32].

70    It should be noted that while it is necessary for the applicant to show that the process has fallen short of a standard of fairness in all the circumstances, it is not necessarily the case that evidence must be led about what the applicant would have done had the procedure been fair: Degning at [39] (Allsop CJ, Collier J agreeing). Where the procedure adopted by a decision maker can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity: WZARH at [60] (Gageler and Gordon JJ).

71    As to ground 2, the Agency contends that the Tribunal has not carried out its statutory task. The relevant principles as to such an error were collected in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [33]-[44] (Besanko, Banks-Smith and Colvin JJ). The Agency's contention that the Tribunal failed to engage in an active intellectual process directed at the correct question, and so failed to carry out that obligation, relies upon the principle explained in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ).

72    The overlap between the two grounds is readily identified, the crux of the question being the nature of the claim in fact pursued by the respondent before the Tribunal, when compared with the terms of the Tribunal's decision.

Summary of Agency's submissions

73    The Agency submits that there was a shared understanding between the parties as to the nature of the respondent's claim, that understanding being that it was about funding for sex workers, and that the Agency was not alerted during the course of the hearing to any error in that understanding.

74    The Agency contends that an electronic word search of the transcript of the Tribunal hearing for references to 'sex therapist', 'sexual therapist', 'sex therapy' and 'sexual therapy' returns no positive results. It recounts many instances where the respondent requested a 'sex worker' rather than a 'sex therapist'. The Agency contends that having regard to the manner in which the proposed services were described, the respondent did not seek to establish that she was seeking funding for provision of 'sex therapy' services by a specially trained person. Nor did she seek to establish that the person (then) providing sexual services to her was a specialist sex therapist as opposed to a sex worker.

75    The Agency also contends that the Tribunal did not raise for consideration whether there might be a relevant distinction between a sex worker and a specially trained sex therapist, or whether the claimed support should be characterised as funding of a sex therapist in contradistinction to a sex worker.

76    It can be accepted that the Tribunal did not during the course of the hearing disclose that it would use a descriptor such as sex therapist to distinguish the respondent's claim from a claim for the type of services an able-bodied person might seek from a sex worker in an ordinary lawful transaction, whether at a brothel, a private home or elsewhere. The question to be considered is therefore whether the Agency was fairly on notice of and understood the nature of the case it had to meet before the Tribunal. This requires a consideration of the manner in which the respondent put her claim, the evidence including the respondent's written statement and oral evidence at the hearing, other evidence before the Tribunal, the transcript of the hearing generally including statements by the Tribunal and the written submissions of the parties.

Written statements

77    In her written statement filed in the Tribunal, the respondent stated that:

I am seeking funding for sexual services. Without the assistance of a professional sex worker I am not able to achieve sexual release and am effectively denied the right to sexual health, pleasure and wellbeing.

78    The respondent referred to her very specific sexual needs arising from her disabilities. She said that her needs required '… a professional sex worker with significant sexual experience and disability training'. The respondent identifies as lesbian.

79    Importantly, she referred to a person who she described as her 'current sex worker', and said that professional sex workers who work with people with a disability understand specific sexual needs. She described how she was put in touch with the person through an agency (described below). She described the manner in which the person has acquired knowledge about her needs, understands how her symptoms impact her and is able to tailor services to her needs. The respondent described why considerable periods of time are required per session (she is seeking funding for two hours of sexual services twelve times in a year). She also said that:

My sex worker is disability trained and we speak clearly about my needs, symptoms and what each sex session will entail.

80    The respondent's solicitors also filed on her behalf a position paper in the Tribunal in which it was stated that:

… it is only through professional sex services with a disability trained or experienced sex worker that the [respondent] will be able to achieve sexual release and engage in a safe and consensual relationship without a severe imbalance of power. (at [52])

81    Similar statements are repeated in the position paper, for example:

The [respondent] herself has set out in her Statement the multiple benefits she obtains from paid sex services and the reasons why she requires a professional with disability specific experience to engage in sexual intimacy. (at [64])

… the difference in the [respondent's] case is that her disability prevents her from being able to have sex without a trained disability-specific worker. (at [73])

… the [respondent's] MS results in multiple functional impairments that prevent her from having sex with anyone but a sex worker with experience in providing sexual services to clients with disability and from providing sexual stimulation to another person. (at [83])

Other evidence before the Tribunal

82    The hearing before the Tribunal was conducted over four days listed between 30 April 2018 and 1 May 2019. The fourth day was for submissions. The respondent gave evidence and was cross-examined.

83    A report was provided to the Tribunal by Ms Elizabeth Dore, a relationships and sexuality counsellor with a Bachelor of Special Education and counselling qualifications. Ms Dore was also cross-examined. Ms Dore's report includes statements to the effect that the respondent's personal care needs whilst having sexual relations could '… be performed by a sex worker, experienced in working with people with disability'. Ms Dore concludes that the respondent:

will have a greater level of emotional wellbeing and will be safer in a paid arrangement with a sex worker who is a member of a known professional network and has a reputation for safety and care when working with people with disability.

84    The respondent's then solicitor, Lindsay Ash, provided a statutory declaration to the effect that she had spoken to the president of an organisation that describes its role as (amongst other things) providing adults with disability referrals to disability-friendly sex services (Organisation). The Organisation also provides 'Service Provider Disability Awareness Training workshops'. Ms Ash contacted the Organisation and asked for the cost estimates of a two hour booking for a female client of a female sex worker who had attended the Professional Disability Awareness Training workshop and who was on the Organisation's referral list of disability friendly workers. That information, which listed seven potential service providers, was provided by the Organisation and attached to Ms Ash's statutory declaration dated 6 May 2019.

85    There were other written materials from the Organisation before the Tribunal that referred to the Disability Awareness Training workshops provided by the Organisation.

Transcript of hearing

86    On the first day of the hearing the respondent was asked about the services she had been receiving from a sex worker. She explained that she had been seeing the same sex worker for two to three years and it had taken some time for the person to develop a rapport by way of knowing her physical needs and limitations, but that the person had come to understand those matters well.

87    The respondent was asked if her sex worker has any specific disability training to which she responded 'Yes, she does'. She then said that 'there is a small amount of disability-specific training available, but there are also sex workers who come from backgrounds in disability services' and that they may have 'a big knowledge of those with disabilities'. She confirmed that her sex worker was affiliated with the Organisation.

88    The respondent's closing written submissions, filed before the final hearing day, included the following submission:

As a preliminary observation, Ms WRMF's need for sexual release is ongoing. To fulfil that need she either needs to be in a long term relationship involving sex with a particularly understanding, helpful and skilled partner, or have a number of sexual partners over a period of time each of whom is helpful, understanding and skilled, or to engage a sex worker who has the requisite skills. Her evidence is that she has not been able to find partners in the community, and so the employment of a sex worker with appropriate skills is her only option.

89    During oral submissions on the last day of the hearing, the Tribunal described the services to be provided in the context of the hourly rate, saying 'it sounds like it's fairly specialised work'. The legal representative for the Agency responded to that statement saying 'Yes, of course'.

90    The Tribunal also asked the respondent's legal representative:

Now, will you get some instructions about the bit of $400 an hour evidence for sex workers? I think they are specialised sex workers we are hearing ...

91    Ms Ash's statutory declaration referred to above was presumably provided in response to that request.

Consideration

92    It is true, as the Agency contends, that the respondent in her own documents and evidence used the expression 'sex worker' on many occasions. It can also be accepted that the term 'sex worker' was used by the Agency, the respondent's legal counsel and the Tribunal on numerous occasions.

93    However, we reject the Agency's proposition, inherent in its appeal ground, that the expression was used by the parties during the course of the hearing as a descriptor with an agreed or limited content. What the Tribunal was required to do was to consider the substance of the service for which the respondent sought funding, and we consider the Agency was on notice over the considerable period of the hearing of the application of the true nature of the claimed support.

94    We say this for a number of reasons. First, and by way of background, the Agency was aware that a range of terminology might be used to describe services of a sexual nature. Some of the Agency's own descriptions prior to the Tribunal hearing vary, and are conflicting. Its file note of 27 March 2017 records that 'the NDIS does not fund adult services'. Its internal email of 28 March 2017 records that 'funded supports to pay for sexual services is inconsistent with our legislation', and 'the NDIS does not pay for sex workers … It is not a disability specific need'. The Agency's media statement of 2 June 2017 referred to both sex workers and sexual therapy, suggesting a potential distinction but also suggesting a blanket prohibition on funding for services that involve sexual activity. The Agency therefore ought to have been on notice that care was required in order to describe the actual services that a participant might seek, and that euphemistic expressions might tend to obscure the true nature of a claim.

95    Second, it is artificial to place undue weight on descriptions deployed by the Tribunal and used at [3] of its reasons. The Tribunal chose to use the term 'sex therapist' in contradistinction to the term 'sex worker'. It is readily apparent from that paragraph that the Tribunal chose to use the term 'sex worker' to refer to someone who provides what might otherwise be described as prostitution services to the general, able-bodied public (and presumably chosen at least in part to avoid use of a term which might be considered pejorative). However, it is not enough to assume that when others, including the respondent, used that expression they did so with the same content in mind. It is important to bear steadily in mind that the terms must be considered in the context in which they were used by the parties.

96    Third, it is abundantly clear from the matters referred to at [77]-[91] above that the respondent was not seeking services that might be sought by a non-disabled person for transactional sexual activity or release (however described). The respondent was seeking a particular kind of service from someone who is prepared to work with her knowing her complex medical conditions; prepared to work with her in circumstances that would be challenging to many people (as described by the respondent in her evidence); willing to learn to assist her having regard to her particular needs; and who has appropriate expertise (however gained) working with disabled persons. The fact that it might be provided by a person who might also be described as a sex worker is not to the point. It is the specialised service to be provided that distinguishes the nature of the respondent's claim.

97    The nature of those services was disclosed before the Tribunal. The Tribunal's description of the nature of the support claimed by the respondent in its reasons does not go beyond the issues raised in the submissions, the evidence and the hearing.

98    The Agency's arguments to the contrary are apparently founded on according narrow meanings to terms that obscure the manner in which the claim was expressed by the respondent. For example:

(a)    there is no doubt that at all times the parties proceeded on the basis that the respondent sought sexual acts and activities from the service provider (to use a neutral term). So much is clear from the detailed evidence given by the respondent as to the tasks undertaken by the person she referred to as her sex worker and from the evidence of absence of any real sexual release through other means. In those circumstances, the Tribunal's use of the term 'sex therapist' cannot be taken to refer to a person who did not provide or participate in such sexual acts;

(b)    whilst there are various references to a 'trained' or 'qualified' person in the materials, those descriptions must be read in context. They cannot reasonably be construed to mean only someone with a particular formal qualification (and the Agency appeared to accept as much). There was evidence of available workshops. The Agency points to the fact that the identified workshop was for only one day, 'including a break for lunch', but that does not deny its status as a form of training. The respondent said that the person she referred to as her sex worker had received training and also said that the person acquired knowledge of the respondent's needs over time. The respondent's closing submission referred to a sex worker 'with requisite skills'. The Tribunal referred to the type of service being 'fairly specialised work' and when considering the costs of the support, sought information about the charge for sex workers who are 'specialised'. Accordingly, there was a reasonable foundation for the Tribunal to describe in its reasons the person who might provide the claimed support to the respondent as someone who was specially trained in treating disabled persons; and

(c)    as is apparent from the transcript references (see [89]-[90] above), the Tribunal clearly understood that such person might also be a sex worker as that expression is commonly understood, but the distinguishing feature was the person's training (whether from a workshop or from experience over time providing such services) for working with disabled persons who required assistance with respect to sexual acts and release. The Tribunal's understanding is also apparent from the confidential reasons in which the Tribunal describes the person who had previously been engaged by the respondent as a 'sex worker' but also refers to that same person as her therapist or sex therapist (at confidential reasons [13]-[14], [16]). We have taken into account that the Tribunal at [3] of its reasons states that the respondent 'does not seek the services of a sex worker' but it is implicit that the Tribunal was in that context referring to a sex worker providing what might be called standard prostitution services available to the able-bodied general public, and was not intending to exclude from the category of sex therapists a person who happens to also provide such sex worker services. To find otherwise would, in our view, construe that expression where used in [3] of the reasons too minutely, contrary to the approach endorsed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

99    Fourth, and it therefore follows, we do not consider, as the Agency submits, that the Tribunal came up with a category of service called 'sex therapy,' being expert services provided by a person with specialised training and qualifications. Indeed, the Tribunal decided that 'the support claimed' (and not some derivative or refined form of it) was a reasonable and necessary support. Rather, it seems to us that the Tribunal clearly understood the nature of 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. The Tribunal clearly understood that such standard prostitution services from a sex worker 'would not be of help to her' (at [37]).

100    Fifth, the Agency relies on the fact that some of the relevant articles and literature that were before the Tribunal use the expression 'sex worker' and refer to potential interactions between disabled persons and sex workers but without reference to any specialised services. However, we do not consider that the presence before the Tribunal of such literature detracts from the respondent's case. There remained a body of evidence, as already discussed, that the respondent was seeking funding for a particular type of service provider.

101    Therefore, in our view the claim that the Tribunal denied the Agency procedural fairness by the manner in which it described and assessed the respondent's claim must be dismissed. The Tribunal's participation in the hearing, including by expressly noting that the service provider sought was someone with 'specialised skills' indicates it was more than a passive bystander and was in fact open about its understanding of the claim being made. The Agency was on notice that information about the hourly charges for sex workers with 'specialised skills' was requested by the Tribunal. It was on notice that the Tribunal was aware that there was (at least) one agency/organisation that provided training workshops for sex workers who might seek to work with disabled persons. The Agency had the respondent's submissions, position paper and the opportunity to cross-examine the respondent. In our view the critical issues relevant to the respondent's claimed support were fairly disclosed to the Agency and it had the opportunity to address those issues.

102    Ground 2 must also be dismissed. In our view, for the reasons already given, the Tribunal properly understood the claim made by the respondent and addressed that claim.

Ground 3

103    By ground 3 the Agency contends that the Tribunal made nine findings of fact which were unsupported by probative evidence and so lacked any evident or intelligible justification, such that unreasonableness as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [68], [72]-[76] (Hayne, Kiefel and Bell JJ) is shown.

104    The first impugned finding of fact is the Tribunal's finding to the effect that the respondent does not seek the services of a sex worker and the provider of the support was not a sex worker but was a sexual therapist, specially trained in treating disabled persons' (Tribunal's reasons at [1], [3], [7] and [37]).

105    It is apparent that this argument covers the same ground already considered above as to the nature of the claimed support. The Agency relied upon the same submissions for this ground. For the reasons already given, the manner in which the Tribunal described the support does not disclose error and was supported by the evidence.

106    The second impugned finding of the Tribunal, based on a finding in the confidential reasons, is that the provider of the support to the respondent comes from the Organisation 'which represents sex therapists with specialised disability training and experience' (confidential reasons at [18]).

107    There are two aspects to the Agency's contention. It asserts there was no evidence of any sex workers from the Organisation having any qualifications or specialised training. It also asserts that there was no evidence that the organisation 'represented' such people.

108    The respondent gave evidence that she was put in touch with the person she had been seeing for sexual services though the Organisation and that the person had disability training. The respondent also explained that the person had over time come to understand her needs, and was experienced, as summarised above at [79]-[87].

109    The Agency's submission suggests that use of expressions such as 'therapist', 'qualified' and 'specialised' requires that there be some formal, regulated or lengthy training. But that is not how the expressions must be understood in the context. There is no reason that references to 'experienced' or 'trained' in the context of these proceedings must be understood narrowly. Rather, such terms can properly be understood as including training such as training through workshops or training from experience over time working with disabled persons with particular needs. Terms such as 'experienced' and 'skilled' can also properly be understood so as to include persons who obtain skills and experience over time working in a particular field, regardless of any formal qualification or completion of any particular course.

110    To the extent the Agency's complaint is that there was no evidence that the Organisation 'represented' sex therapists, such complaint is seemingly based on a pedantic interpretation of what it means to 'represent', and approaches the Tribunal's reasons as if they are a statute. It is readily apparent from the respondent's evidence and the Ash statutory declaration that the Organisation connected sex workers with clients, and that in particular, it recorded in its data base network contact details for sex workers who had undertaken disability awareness training. The Organisation also provided training workshops, as already noted. In light of such evidence, and taking into account what we have already said about use of the expression 'sex therapist' with respect to grounds 1 and 2 above, it was open to the Tribunal to make its finding as to the role of the Organisation.

111    The third impugned finding was the finding (reasons at [37]) that the evidence of the Agency's NDIS actuary shed little or no light on the financial sustainability of the NDIS because the actuarial evidence assumed the relevant market was for sex workers, rather than for the more specialised category of support as the Tribunal described.

112    The actuarial evidence assessed the annualised cost to the NDIS if all NDIS participants aged between 25 and 64 with multiple sclerosis, and with the respondent's level of function or less, were to seek and be granted support for sex workers in the amount sought by the respondent per annum. It also considered the annualised cost if the participant group were expanded to people with similar primary disabilities and across a range of levels of functions. It was apparent from the cross-examination of the author of the actuarial report that there was no data as to the extent to which people with multiple sclerosis (or other disabilities) might wish to utilise a sex worker.

113    The actuarial report did not consider what the annualised cost might be if the calculation proceeded on the assumption that the support claimed was the more specialised category of sex therapy as claimed by the respondent.

114    On that basis it was open to the Tribunal to doubt the veracity of its accuracy and relevance to the actual support claimed. The assessment of any weight to be accorded to such evidence was a matter for the Tribunal. We see no error in the Tribunal's conclusion as expressed at [37] of its reasons.

115    The fourth impugned finding is related. The Agency contends that there was no probative evidence supporting the Tribunal's finding (also reasons at [37]) that the Actuary's evidence was based on a worst case scenario when in fact the data was limited by age bracket and other parameters that might be expanded, so further increasing the potential annualised cost.

116    The Agency's submission is another example of the Tribunal reasons being construed minutely and with an eye keenly attuned to the perception of error. The expression was directed to the fact that the author's underlying assumption was that every person in the broad age bracket identified with multiple sclerosis or other disabilities would seek the services provided by a sex worker. That assumption was far removed from an assessment of the market for a person seeking the specialised services sought by the respondent. The fact that it referred to 'a worst case scenario' does not suggest that the Tribunal considered it was the worst case scenario that could possibly be hypothesized. Nothing arises from the Tribunal's use of that expression.

117    The fifth impugned finding is the Tribunal's finding that the respondent was seeking the claimed support 'not because she does not have a partner' (reasons at [3]). The Agency contends that to the contrary the respondent's own account was that she sought sex worker services because her disability prevented her from accessing the community to find sexual partners.

118    The Agency's submission in our view misapprehends the point being made by the Tribunal, that point being that the respondent was not seeking someone to fulfil the more general role of a partner, and nor would a partner, even if she were able to find one, be likely to satisfy the respondent's needs in light of her complex disabilities. One was not a substitute for the other.

119    The sixth impugned finding is the Tribunal's finding (reasons at [3]) that any partner from the community would be unlikely to provide sexual services to the respondent. The Agency contends that there was material before the Tribunal that reflected that it was possible for a person with multiple sclerosis to have sexual intimacy with partners. Further, it contends that it was presumptuous of the Tribunal to assume no partner would be willing to provide the kind of sexual services that the respondent might need.

120    The relevance of the general information relied upon by the Agency in its submissions as to the potential for a person suffering from multiple sclerosis to engage in sexual intimacy is unclear. The Tribunal had before it very specific evidence, referred to in the confidential reasons, as to the role of a person providing sexual services to the respondent whilst also dealing with her complex medical conditions. There was also evidence from the respondent as to her inability to sexually stimulate a partner having regard to her medical conditions (in particular, [23] and [24] of the respondent's written statement, referred to in the confidential reasons). Having regard to such evidence, there was a reasonable basis for the findings of fact made by the Tribunal.

121    The seventh impugned finding is the Tribunal's finding (at [44] of its reasons) that so far as the evidence revealed there is no alternative support to the claimed therapy. The Agency contends that there was in fact evidence that the use of what it termed sex toys, perhaps with instructional assistance from an occupational therapist, could allow people with multiple sclerosis to achieve sexual release.

122    This appeal ground engages with matters that are the subject of the confidential reasons. Whilst we will deal with them in a circumspect manner, it is necessary in order to engage with the ground of appeal to disclose some matters referred to only in the confidential reasons.

123    The respondent gave detailed oral evidence as to her failed attempts over time but willingness to seek to achieve sexual release through the use of sex toys. The confidential reasons (at [14]-[15]) indicate that the Tribunal took into account such evidence. The Agency submits the Tribunal failed to have regard to certain evidence given by the respondent at the third hearing day, and so some time after her earlier evidence. That later evidence was to the effect that the respondent had spoken to an occupational therapist, was given the name of a particular retailer and had sourced products. She said (in effect) that she had some difficulties but also some limited success at achieving a limited form of relief. The respondent explained during that evidence why further assistance from an occupational therapist or carer with respect to sex toys would be inappropriate.

124    The respondent's counsel submitted in his written closing submissions that the respondent had attempted to use sex toys with limited success but that in her individual circumstances, and given her specific disabilities, there is no realistic alternative that can be used as a comparator. The Agency in reply made a general submission about the prospect of engagement of an occupational therapist (and named a second organisation) or the purchase of 'specific equipment'. The Agency during closing submissions did not draw the Tribunal's attention to the particular evidence at the third hearing about the applicant's sourcing or use of sex toys or the extent of any benefit received through their use. In those circumstances, we do not consider the Tribunal erred in failing to refer to it in support of an argument which was not self-evident or clearly exposed before it.

125    In any event, the Tribunal noted evidence that related to that part of the third hearing. It referred in its confidential reasons to materials from the second organisation. That reference suggests that the Tribunal had not overlooked the evidence given at the third hearing. The Tribunal also stated in the confidential reasons that the sex worker assisted with sex toys. Even taking into account the evidence that was given by the respondent at the third hearing, and having regard to the difficulties that were reported in use of sex toys and the absence of any clear evidence as to the role of the sex therapist in their use, in our view it was open to the Tribunal to conclude that the support the respondent required to have sexual relations and obtain sexual release to assist her wellbeing realistically could only be achieved with a sex therapist. That was a finding reasonably open on the evidence.

126    The eighth impugned finding is the Tribunal's finding that 'the expertise of the sexual therapist, by reason of her specialist training, shows that the support claimed is consistent with good practice'. This argument is met by the discussion above as to training, skills and expertise: see [98]-[109] above. The uncontradicted evidence before the Tribunal was that the sexual therapist was trained (and see further as to the question of 'good practice' [234] below).

127    The ninth impugned finding was that made by the Tribunal that the support is incapable of being provided otherwise than by a sexual therapist. This matter has been addressed in the context of the seventh impugned finding: see [121]-[125] above.

128    It follows that we are not persuaded that any of the findings sought to be impugned by ground 3 were made in the absence of any probative evidence or were otherwise unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li. We would dismiss ground 3.

Ground 4

129    The applicant raises the following question of law:

Did the Tribunal err in construing and applying various provisions of the Act?

130    Obviously that question is far too widely expressed, and is disconnected from the Tribunal's decision on review. In Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) the Full Court emphasised the importance of precisely identifying questions of law in appeals under s 44 of the AAT Act:

[62]    … The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

131    The Full Court continued:

[91]    It is of great importance that the question or questions of law should be stated with precision. That is the point of r 33.12 of the Federal Court Rules, and of its predecessor, O 53, r 3(2). We have set out the present rule above at [3]. But the end sought to be achieved by the rule is to have the question of law stated with sufficient precision.

[92]    We agree with Ryan J in Lambroglou that merely to assert that the Tribunal erred in law in making a particular finding is not to state a question of law. We also agree with the later statement by Ryan J, at 527, that: '[I]t simply begs the question of law to commence it with the words 'whether the Tribunal erred in law'. If the question, properly analysed, is not a question of law no amount of formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law' (emphasis added). But this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression 'whether the Tribunal erred in law' if that is given sufficiently precise content by what follows.

[93]    We also agree that there would be a deficiency in a notice of appeal if the asserted questions of law did no more than invite the Court to embark on a broad and hypothetical enquiry as to the construction and operation of statutory provisions: Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 at [24] per Keane CJ, Finn and Gilmour JJ.

(emphasis added)

132    No point was taken by the respondent about the formulation of the question of law. Therefore, the only consequence is that the Court can and does take what is expressed in the grounds of appeal as disclosing what the Agency's precise complaint is about the Tribunal's decision.

133    In paragraph 4 of its grounds of appeal, the applicant explains the contentions it makes, at considerable length:

The Tribunal erred in construing/applying s 34 of the Act and/or the Rules:

(a)    The Tribunal construed s 34 to mean that if a support was 'reasonable and necessary' it was required to be fully funded under the Act and no overarching discretionary decision could be made to decline to do so: see the Tribunal's Reasons at [7]: cf National Disability Insurance Agency v McGarrigle [2017] FCAFC 132.

(b)    The Tribunal wrongly construed s 34 to mean that if it was satisfied of all of the matters enumerated in s 34, the claimed support was 'reasonable and necessary' within the meaning of the Act: see at [7] of the Tribunal's Reasons.

(c)    The Tribunal wrongly construed s 34 on the basis that every reference to 'support' or 'supports' in ss 3 and 4 of the Act was directed to, and fleshed out the meaning of, 'reasonable and necessary supports' in the Act.

(d)    The Tribunal wrongly construed s 34 on the basis that if provision of a support was consistent with one or more aspects of ss 3 and 4, that favoured characterisation of the support as 'reasonable and necessary'.

(e)    In construing s 34 the Tribunal failed to take into account a relevant consideration: namely, whether non-funding of the claimed support would actually be inconsistent with any of the objects or principles in ss 3 and 4.

(f)    In construing s 34 of the Act the Tribunal failed to give the words 'reasonable' and 'necessary' separate and real work to do.

(g)    The Tribunal wrongly considered that the themes and matters identified by it at [36] of its Reasons supported or justified characterisation of the sex services as 'necessary' within the meaning of s 34, subject to its consideration of the matters enumerated in s 34.

(h)    In construing s 34 the Tribunal attached no weight to the provisions of ss 3(2)(b), 3(3)(b) and 4(17)(b) - based in part on the legally unsustainable findings of fact described in ground 2 above - and thereby failed to take account of relevant considerations.

(i)    The Tribunal wrongly interpreted s 4(1) as seeking to achieve a presumptive right to equal outcomes for people with disability (see at [23] of the Tribunal's Reasons), and erred in construing s 34 in light of that presumptive right (see last sentence of Reasons at [23] and at [36]).

(j)    The Tribunal wrongly interpreted ss 4(11) and 34 to mean that if a support can help a person with a disability to be included in the community as a fully participating citizen, that will either (i) mean that it is appropriate for the support to be provided (and funded) under s 34 (see at [31] of the Tribunal's Reasons); or (ii) lend weight to characterisation of the support as 'reasonable and necessary' within the meaning of s 34 (see at [36] of the Tribunal's Reasons). Properly construed, the terms of s 4(11) operate to qualify or moderate the characterisation exercise under s 34.

(k)    The Tribunal wrongly construed s 34 on the basis that the presence of s 14(a) in the Act favoured characterisation of the claimed support as 'reasonable and necessary' under s 34: see at [34]-[36] of the Tribunal's Reasons. Contrary to the approach of the Tribunal: (i) the terms of s 14(a) are directed to the funding of grants to enable other persons or entities to assist people with disability in particular ways, not to the funding of 'reasonable and necessary supports'; and (ii) s 34 of the Act is concerned with general supports (as defined in s 13(2)) that will be provided and the 'reasonable and necessary supports' that will be funded in a statement of participant supports - it is not concerned with the funding of grants under s 14(a).

(l)    In construing s 34 of the Act the Tribunal misapplied the principle of construction in s 15AA of the Acts Interpretation Act 1901 by (i) not starting and ending with the text of s 34; (ii) working-back from a consideration of general objects and general principles to arrive at a presumptive outcome in favour of the claimed support being 'reasonable and necessary' even before considering/applying the terms of s 34 (see the Tribunal's Reasons at [36]); (iii) failing to properly identify the particular purposes and objects of the provisions of s 34.

(m)    In relation to s 34(1)(b) the Tribunal failed to identify any activity which the claimed support would assist the Respondent to undertake, and thereby ignored the first limb of s 34(1)(b): see the Tribunal's Reasons at [43].

(n)    In relation to s 34(1)(c) the Tribunal (i) approached 'value-for-money' by reference to market rates for the same services, without evaluating either the extent/magnitude of the benefits achieved (as to which see ground [2g] above) or the cost of the support 'relative to the benefits achieved'; (ii) failed to take account of a relevant consideration, namely whether the costs of the support were reasonable relative to any alternative means of elevating the Respondent's sense of well-being, mood and willingness to face the world; (iii) did not, as required, apply the following Rules: Rule 3.1(b) - whether there was evidence of substantial improvement in life-stage outcomes and long-term benefits; Rule 3.1(c) - likelihood of reduction of long-term funding; or Rule 3.1(f) - whether provision of the support would increase independence and reduce the need for other kinds of supports: see the Tribunal's Reasons at [44].

(o)    In applying s 34(1)(d) the Tribunal failed to apply the terms of Rules 3.2 and 3.3.

(p)    In applying s 34(1)(d) the Tribunal applied Rule 3.1(b) - which was not applicable to s 34(1)(d).

(q)    In any event, in applying s 34(1)(d) and Rule 3.1(b) the Tribunal wrongly found that funding of sexual services would be of long-term benefit but that finding was based on a presumption of ongoing funding, whereas Rule 3.1(b) makes no such presumption.

(r)    The Tribunal's approach to the terms of s 34(1)(e) concentrated on the likelihood or otherwise of members of the community actually providing sexual services to the Respondent. That approach does not reflect the language of s 34(1)(e) which refers, instead, to taking account of 'what it is reasonable to expect … the community to provide'.

134    Of the 18 arguments set out in this ground, three relate to the Tribunal's approach to the operation of the NDIS Rules, and the remaining 15 relate to the operation of s 34 of the Act.

135    In the Agency's written submissions in support of the appeal, the arguments under ground 4 were collected into four groupings. They were:

(a)    grounds 4(a) and (b): 's 34 is not the universe of considerations; not all supports must be provided/funded';

(b)    grounds 4(c)-(e), (g)-(l): 'erroneous use of ss 3, 4 and 14 to construe s 33 and s 34';

(c)    ground 4(f): '[t]he Tribunal's construction of "reasonable and necessary supports" in s 34 failed to give the words "reasonable" and "necessary" separate work to do'; and

(d)    grounds 4(m)-(r): 'erroneous construction and application of s 34 requirements'.

136    In summary, the Agency's contentions under each of these four groups were:

(a)    First, the Agency contends '[t]he Tribunal's reasoning proceeded on the basis that … if it was satisfied of all of the matters enumerated in s 34, the claimed support was "reasonable and necessary" within the meaning of the NDIS Act' and 'should be fully funded', without also considering that, under s 33, it had an 'overarching discretionary decision' to decline to do so. This argument concentrated on [7] and [31] of the Tribunal's reasons.

(b)    Next, the Agency contends the Tribunal erred by relying on s 3, s 4 and s 14 of the Act to construe the meaning of 'reasonable and necessary supports'. The Agency levelled a large number of criticisms at the Tribunal's reasoning under this broad submission - including that the Tribunal gave too much weight (or should have given no weight) to the matters in provisions such as s 14 of the Act, and that the Tribunal placed an emphasis on some objects of the Act but not others, and misconstrued some objectives, and also 'work[ed] back' from the objects to the meaning of 'reasonable and necessary supports'. Under this group the Agency also contended the Tribunal had failed to attach sufficient importance to the financial sustainability aspects of the NDIS scheme, as counterbalancing some of the other objectives.

(c)    Third, the Agency contends the Tribunal misunderstood the two components of the phrase 'reasonable and necessary', incorrectly equating the latter with fulfilling a 'need' of the participant and failing to give 'reasonable' any real work to do. The Agency also described the Tribunal's construction as 'unduly simplistic'.

(d)    Lastly, the group of grounds identified at 4(m)-(r) engage with what the Agency contends are more specific errors in finer aspects of the Tribunal's reasoning about particular paragraphs of s 34(1). It is not necessary to set the detail of the arguments out in this section, and they will be addressed below.

The Agency's conduct of the matter before the Tribunal, and its focus

137    On the Court raising whether many, or any, of the points now raised on appeal had been put to the Tribunal, it became apparent they had not. In some aspects, the Agency's submissions before the Tribunal positively encouraged the Tribunal to adopt some of the reasoning the Agency now wishes to contend is erroneous. It has placed the respondent in a difficult position on this appeal, to say the least. Such an approach is also unfair to the Tribunal. As we explain, the structure and content of the Tribunal's reasons is to a significant extent explained by the way the Agency's opposition to the review was couched. That fact must be borne in mind when assessing the Agency's grounds of appeal.

Relevant features of the legislative scheme

138    In dealing with legislation such as the Act, a number of particular considerations should be remembered. First, the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non-existent. In its structure, it does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. It is always necessary to ensure that constructional choices, and construction, are undertaken paying sufficient regard to the legislative scheme as a whole, for that forms the context for any particular provision: see R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [32]-[34] (Kiefel CJ and Keane J), [124] (Bell and Gageler JJ). In the case of the Act, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important.

139    In McGarrigle at [22]-[44], the legislative scheme of the Act is described. The Agency appealed from the Court's orders in McGarrigle, but it ultimately conceded before the Full Court that the Tribunal's decision should be set aside: see National Disability Insurance Agency v McGarrigle [2017] FCAFC 132; (2017) 157 ALD 458 at [2]. Leave for it to rely on an amended notice of appeal was refused by the Full Court. On this appeal, the Agency accepted the description in McGarrigle of the statutory scheme, subject to the clarification set out by the Full Court at [3] of its reasons concerning [95] of the primary reasons. In resolving ground 4, we emphasise the following aspects of the statutory scheme, some of which are drawn from the description in McGarrigle, and some of which are not. Some of the aspects have been referred to above, but they bear restating.

(a)    Section 17A enshrines and gives prominence in the legislative scheme to principles of autonomy and self-determination for people with disability.

(b)    Once a person is accepted to be a 'participant' within the meaning in Part 1 of Ch 3, the delivery of supports occurs through participant plans. Participant plans are the cornerstone of the assistance the legislative scheme intends be delivered to those who qualify as participants.

(c)    The entire process associated with participant plans must be directed - as far as reasonably practicable - in accordance with the objectives set out in s 31. Of relevance to the resolution of ground 4 are the objectives that the plan should:

(i)    'be directed by the participant' (para (b));

(ii)    'be underpinned by the right of the participant to exercise control over his or her own life' (para (g));

(iii)    'advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations' (para (h));

(iv)    'maximise the choice and independence of the participant' (para (i)); and

(v)    'facilitate tailored and flexible responses to the individual goals and needs of the participant' (para (j)).

(d)    The CEO is required by s 32 to facilitate the preparation of a participant's plan. Section 33 prescribes two mandatory components for a participant's plan: a statement of a participant's goals and aspirations (s 33(1)), and a statement specifying a number of matters about the 'participant supports' to be provided, which includes specification of both general and reasonable and necessary supports which will be, respectively, provided and funded (s 33(2)(a) and (b)).

(e)    This statement of participant supports must be prepared with the participant and approved by the CEO: see s 33(2).

(f)    It is s 33(2)(b), read with s 33(5), which comprises the statutory task for the purposes of both the reviewable decision and the Tribunal's function on merits review.

(g)    The matters set out in s 33(5) are mandatory aspects of the CEO's approval function, and therefore on review, mandatory aspects of the Tribunal's review function. On any given review by the Tribunal, some of these aspects will feature more than others, depending on the factual circumstances. The matters go to both the CEO's function in s 33(2) of specifying the general supports the Agency will provide and the reasonable and necessary supports the Agency will fund.

(h)    The requirements of s 33(5) should be set out:

(5)    In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

(a)    have regard to the participant's statement of goals and aspirations; and

(b)    have regard to relevant assessments conducted in relation to the participant; and

(c)    be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d)    apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e)    have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f)    have regard to the operation and effectiveness of any previous plans of the participant.

140    As we have noted, the scheme in Ch 3 operates only in respect of individuals who can meet the threshold requirements set out in the Act to qualify as a 'participant', which include age, residence and disability requirements. The disability requirements are set out in s 24 and should be reproduced:

Disability requirements

(1)    A person meets the disability requirements if:

(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b)    the impairment or impairments are, or are likely to be, permanent; and

(c)    the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i)    communication;

(ii)    social interaction;

(iii)    learning;

(iv)    mobility;

(v)    self-care;

(vi)    self-management; and

(d)    the impairment or impairments affect the person's capacity for social and economic participation; and

(e)    the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

(2)    For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

141    We see no reason why sexual activity and sexual relationships would not be regarded as included within the activities listed in s 24(1)(c) (in particular sub-para (ii)); nor why the way an impairment may affect a person's ability to engage in sexual activity and sexual relationships would not be within the concept of 'social … participation' in s 24(1)(d). Members of the Australian community can choose to engage in lawful, consensual, sexual activity and sexual relationships; or, they can choose not to. For some people, such activities and relationships will fulfil important human needs; for others they may be less important. That is the case with many kinds of social participation in which individuals engage - sport, music, hobbies, political or religious activities. Nevertheless, they are all part of the spectrum of interaction between individuals within a community. The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act, which provides:

Principles relating to the participation of people with disability

(1)    People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2)    People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

(3)    The National Disability Insurance Scheme is to:

(a)    respect the interests of people with disability in exercising choice and control about matters that affect them; and

(b)    enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and

(c)    support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.

142    The Agency's case before the Tribunal was that it 'does not fund' participation in sexual activity. That position can only have been taken, as a policy or blanket position, on the view that activities involving sexual intimacy are outside the scheme of the Act. There were times during argument in this proceeding that such an approach resurfaced, despite disclaimers. The Act does not expressly exclude such activities from being funded supports. Nor has any exclusion been made under the NDIS Rules. 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. Otherwise, the values, objectives, purposes and guiding principles with which this legislative scheme is replete, where they speak of 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' are to be understood as not meaning what they appear to convey, and as being subject to a limit, by way of a hard and impassable line, at the point of physical intimacy with another human being.

143    In our opinion, it is clear the legislative scheme intends no such limits or exclusion, and no such hard lines to be drawn. Whether, in a given case, the requested support is a 'reasonable and necessary support' will in our opinion generally be a question of fact, on the evidence before the decision-maker. Subject to matters such as rationality and legal unreasonableness, there may be an area of decisional freedom in the conclusion reached by a decision-maker about whether a support is properly characterised as a 'reasonable and necessary support'. The phrase has a qualitative aspect. Accordingly, we do not see any question of erroneous statutory construction as looming as large as the Agency's submissions might have suggested. Nor for the reasons we will explain do we consider the Tribunal erred in its approach.

144    There is no definition of 'reasonable and necessary supports', although the phrase is used throughout the legislative scheme. It is necessary to say a little more about s 3 (the objects section) and s 4 (the 'principles' section).

145    While an objects clause may not be used to override the otherwise clear meaning of an operative provision (see, eg, CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261; (2012) 297 ALR 289 at [99] (Robertson J)), it is also the case that objects clauses can assist in giving 'practical content' to common terms that are used within the legislative scheme: see Russo v Aiwello [2003] HCA 53; (2013) 215 CLR 643 at [5] (Gleeson CJ). Such provisions are not, as Gleeson CJ observed in Russo, present in the scheme as some kind of defensive mechanism used by the Parliament: as his Honour more elegantly said, they are not 'an exercise in apologetics'. See also Lynn v New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 at [54] (Beazley P). Subject to clear words used elsewhere in a scheme which should prevail over a construction that may be more consistent with an objects clause, such clauses are intended to facilitate an understanding of the intended construction and operation of the Act, by setting out what Parliament intends to pursue by the exercise of legislative power. Of course, enumerated objects and purposes may be multifaceted, and may pull in different directions: those features illustrate the complexities of legislative schemes, and the political compromises which they may embody. That is consistent with Gleeson CJ's observations in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5]-[7], affirmed by a unanimous High Court in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 at [40]. Nevertheless, just as a Court must assume Parliament chose words in an operative provision deliberately, so as to have work to do (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ)), so too a Court must assume Parliament has chosen words in an objects clause deliberately; including where differently expressed paragraphs emphasise quite different kinds of objectives.

146    A provision such as s 4 is to be distinguished from an objects clause. It is less susceptible to being characterised as aspirational. That is because, as its heading suggests, s 4 identifies 'principles' which Parliament intends will 'guide actions' under the Act. The word 'actions' should be understood as including the performance of functions and the exercise of powers. It includes, in our opinion, the function and power performed by the CEO (or delegate, or Tribunal) under s 33 of determining whether a statement of participant supports should be approved.

147    Relevantly to the construction of the phrase, 'reasonable and necessary supports' appears in the following places in the Act:

(a)    in the objects clause, where s 3(1)(d) provides that an object of the Act is to:

provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch …

(b)    in the guiding principles clause (s 4(5)), where one of the general principles guiding actions under the Act is stated to be:

People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

(c)    also in the guiding principles clause (s 4(11)):

Reasonable and necessary supports for people with disability should:

(a)    support people with disability to pursue their goals and maximise their independence; and

(b)    support people with disability to live independently and to be included in the community as fully participating citizens; and

(c)    develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

(d)    in s 8, the simplified outline of the Act, in its reference to Ch 3;

(e)    in s 9, in the definition of 'NDIS amount'; and

(f)    in s 33, s 34 and s 35, to which we have referred above.

148    It also appears in the following sections which in our opinion do not influence, one way or the other, its proper construction: s 29(2), s 41(2), s 46B, s 144(1)(c) and s 179.

149    The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated, with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

150    In our opinion, such a danger is present on the construction arguments presented by the Agency. Both adjectives qualify the noun 'support', but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

151    Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself. And, as we have explained, choosing to engage in lawful, consensual sexual activity (or choosing not to) is an ordinary part of living in such a community, and of living a full and independent life.

152    Ultimately, as the Full Court in McGarrigle recognised, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact-intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of 'decisional freedom' (Minister for Immigration and Citizenship v Li at [28] (French CJ)) for the decision-maker, about what supports fall within this description, given the circumstances of a particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under s 33(2) to differ. So too on merits review.

153    In this appeal, it is not appropriate for this Court to give what amounts to some kind of advisory opinion on the content and outer limits of the statutory phrase 'reasonable and necessary supports'. If the Agency had continued in this Court the argument it put below - that on no proper construction of the phrase could the services of a sex worker experienced and trained in providing sexual services to a person with the respondent's kind of disabilities be a reasonable and necessary support - then the question of the outer limits of the phrase may have arisen. Instead, at best, ground 4 quarrels with the Tribunal's application of the phrase to the evidence, and whether in that application any particular legal misunderstanding is apparent. At worst, many of the submissions on ground 4 slide into inviting merits review.

The exclusionary power

154    Section 35(1) of the Act provides for the making of rules prescribing, among other things, 'reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme' (para (b)).

155    In McGarrigle, the Court stated:

[43]    The rules are legislative instruments to be made by the Minister: see s 209. Section 209, subss (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

156    It was common ground in this case that the kind of support which the respondent sought to have funded had not been excluded under the Rules. Such an exclusion would require the agreement of the Commonwealth and each host jurisdiction (that is the States and territories): see s 209(4), read with Item 1 in the table set out at s 209(8). There is no evidence the responsible Minister has even attempted to propose an exclusion for services involving sexual activities.

157    The Tribunal referred to the effect of s 35 and s 209 at [7] of its reasons. Its references were obviously responsive to the blanket policy position put on behalf of the Agency to the Tribunal, and adopted in the media release and its communications with the respondent prior to the Tribunal review. The Tribunal correctly identified s 35 as a mechanism available to the executive, within the constraints imposed by s 209, to take a policy position on particular kinds of supports. The Tribunal otherwise correctly distanced itself from decision-making based on 'political' considerations. To this might be added 'moral' considerations. What drove the Agency's blanket approach was never clearly revealed in its explanations to the respondent, its media release, or in its submissions to the Tribunal or to this Court. It is difficult to tell whether an accurate descriptor of the Agency's position is 'political', or 'moral' or another adjective. However, the point arising from this paragraph of the Tribunal's reasons at [3]-[8], which we respectfully consider to be correct, is that, absent an exercise of the exclusionary power under s 35 (which the Parliament has chosen to constrain in specific ways), the Tribunal was to approach the question of whether the claimed support was a 'reasonable and necessary support' by examining the 'particular circumstances of the applicant' (at [8]).

Grounds 4(a) and (b): the s 33 residual discretion argument

158    The Agency's contentions on grounds 4(a) and (b) are summarised in its written submissions in the following way:

The Tribunal proceeded on the bases that: (i) if satisfied of all of the matters enumerated in s 34, the claimed support is 'reasonable and necessary' within the meaning of the NDIS Act (Reasons at [7]); and (ii) if a support is 'reasonable and necessary', it should be fully funded, and no overarching discretionary decision exists under s 33 to decline to do so: Reasons at [7], [31].

159    The Agency's substantive argument is set out at [46]-[48] of its written submissions, but is encapsulated in the first part of [46]:

The words in parentheses in s 33(2)(a) and (b) are important: '(if any)'. Those words recognise a residual discretion on the part of the CEO not to include in the statement of participant supports provision/funding for general supports and/or reasonable and necessary supports even if they meet the requirements of s 34. That construction is supported by the express terms of s 34 which set out the minimal requirements before a support might be funded to any extent; it does not require supports which meet those requirements to be funded - let alone fully funded.

160    The Agency properly conceded that it did not put a submission of this kind to the Tribunal. Indeed, it conceded its submissions to the Tribunal 'invited [it] to err'.

161    It is necessary therefore to set out what was put to the Tribunal. In its position statement prior to the hearing the Agency identified the issues in dispute, and its submissions about them, as revolving entirely around whether the Tribunal could be satisfied of the matters in s 34 (at [24]-[56]). There were other aspects of the legislative scheme emphasised by the Agency (such as financial sustainability) but no reference at all to a residual discretion in s 33(2) to refuse to approve a support which had been found as a matter of fact to be a 'reasonable and necessary support'.

162    In its final written submissions at [13], the Agency acknowledged a submission put on behalf of the respondent that 'financial sustainability of the NDIS does not "create a residual discretion to refuse" a support', and contended this was not its argument; rather, its argument was that financial sustainability was an 'important overarching consideration'. In fact, in her final written submissions at [27], the respondent had put her contention squarely that:

The NDIS Act does not provide for a residual discretion to refuse approval of participant supports, or indeed to refuse to fund general supports or reasonable and necessary supports, once the CEO has had regard to the matters in s. 33(5) and is satisfied of the matters in s. 34(1).

163    Aside from the contention at [13], the Agency's final written submissions did not seek to contradict the respondent's submissions which we have extracted.

164    During the Agency's final oral submissions to the Tribunal, the Tribunal suggested that the inclusion of para (c) in s 34(1) 'almost suggests there's a discretion in there, which isn't there'. The Agency's legal representative responded:

Yes, sir, but it's not really, in any sense, a true discretion. The decision-maker must be satisfied of each of the elements of the section …

165    The Agency's legal representative then made the following submission:

And I think my learned friend and I are somewhat ad idem on the role of the question of financial sustainability. My learned friend, in his written outlines - it's not a, sort of, final limb of section 34 that allows you to just, 'Well, I'm satisfied of all the other matters, but I'm not satisfied about financial sustainability, so I therefore have this residual discretion.' I accept that that's his right in his interpretation.

166    That is all that was said about the so-called residual discretion. In those circumstances it is to be expected that the Tribunal did not refer to any issue of this kind arising for its determination on the review.

167    Therefore, the Agency now invites this Court to find error in the Tribunal's decision on a matter that, first, it did not put to it at all, and second, it in fact disavowed. We see no basis on which it should be permitted to put such an argument. It may be a significant question of statutory construction, and a somewhat substantial revision to the present conceptions of this legislative scheme, to imply such a discretion into the text of s 33(2), which appears to be where the Agency contends the implied discretion is located. Consideration of that matter should await a case where it has been properly raised before the Tribunal, so that the issue is more than hypothetical.

The Tribunal's approach and the challenges to it in ground 4(c)-(r)

168    The Tribunal commenced its reasons by noting the respondent's circumstances are 'very unusual'. That characterisation was open to the Tribunal, on the evidence, and is not challenged. It is also relevant to a correct understanding of the Tribunal's approach to the application of the phrase 'reasonable and necessary supports'.

169    As we have explained in our reasons on ground 1, an important feature of the Tribunal's reasoning was its factual conclusion, open to it on the evidence, that what the respondent was seeking was funding for a person with special experience in providing sexual services to people with a disability. The Tribunal found that:

[3]    … As will appear from the confidential section of these reasons, a partner from the community would be unlikely, because of special features of the case, to be willing or able to provide the kind of services the applicant requires in order to obtain sexual release.

170    It was these kinds of factual findings which informed the Tribunal's conclusions about what kind of services were, for the respondent, 'reasonable and necessary supports' to be included in her statement of participant supports.

171    At [5], the Tribunal made an important point about the statutory phrase; namely, the legislative choice of the word 'support'. Part of the consideration of the phrase as an entire phrase, and in context, requires some focus on what is comprehended by the word 'support'. Correctly, the Tribunal observed this was another word not given any definition in the Act. The Tribunal found:

[5]    … It means the same as 'assistance', and so understood, it is satisfied when one considers what the applicant claims.

172    The Agency did not challenge this aspect of the Tribunal's reasoning, and we consider it is a correct approach on the facts before the Tribunal. Recalling that the statutory word is 'support', it certainly includes within it the concept of 'assistance', and this is one of its primary meanings, in the context of this legislative scheme. Other synonyms are also likely to be apt: for example, a synonym for 'support' in relation to services concerning personal hygiene might be 'care' rather than 'assistance'. All this is fact dependent, but the Tribunal's correct understanding of 'support' informed its approach to whether the claimed support was a 'reasonable and necessary support'.

Grounds 4(c)-(e), (g)-(1): erroneous use of s 3,s 4 and s 14 to construe s 33 and s 34

173    What the Tribunal did from [13] of its reasons onwards, having noted the phrase 'reasonable and necessary support' is not expressly defined in the Act, and having referred to a passage from McGarrigle which referred to s 4(11) and s 14, was to identify other provisions of the Act which establish the context for the phrase.

174    In this exercise, and uncontroversially, the Tribunal referred to the objects clause, and identified particular objects which are relevant. It also singled out the financial sustainability clause in s 3(3)(b). The Agency's contention that the Tribunal discounted or failed to have regard to this aspect of the scheme is unsustainable on the face of the reasons. We return to this aspect of the Agency's argument below, but in our opinion the substance of it is no more than a quarrel with the merits of the Tribunal's decision, for the Agency would have had the Tribunal give far more prominence to what it contended might be the financial implications of approving a support such as this. As we explain below, the Tribunal rejected the Agency's perspective, as it was entitled to do.

175    At [16]-[21] (and also at [27]) the Tribunal discusses the Convention on the Rights of Persons with Disabilities, and the question of whether what it calls 'sexual rights' are within the concept of human rights. We do not consider this aspect of the Tribunal's reasons deals with an impermissible matter, given that s 3(1)(a) expressly identifies the first object of the Act as being to 'give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)', and s 3(1)(i) also states that another object of the Act is to give effect to certain obligations that Australia has as a party to the five major international human rights conventions; namely, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women and the International Convention on the Elimination of All Forms of Racial Discrimination. Finally, the Tribunal consciously steered away from adopting any human-rights-based analysis, as its reasons at [20]-[21] make clear.

176    At [22]-[31], the Tribunal identified some of the guiding principles and other objects of the legislation, noting the uncontroversial and well-established general principle that a:

[28]    … construction which will best advance the purpose of a provision, is to be preferred to each other (possible) interpretation, in accordance with s.15AA of the Acts Interpretation Act 1901.

177    The Agency contends that in its use of and reference to s 15AA of the Acts Interpretation Act 1901 (Cth), the Tribunal:

… work[ed] back from a consideration of objects and general principles to derive a presumptive outcome in favour of the support being 'reasonable and necessary' before considering and applying the terms of s 34.

178    We do not accept that submission. The location of these propositions in the Tribunal's reasons demonstrates that all the Tribunal was doing was instructing itself in accordance with orthodox principles about the need to look at the objects and purposes of the legislation. Indeed the Agency had, in its outline of position to the Tribunal, referred to this very provision. It had done so for the purpose of contending approval of funding for a sex worker was inconsistent with the objects of the Act, a proposition the Tribunal did not accept, but which might also be said to 'work back' to derive a presumptive (negative) outcome.

179    Further, what emerges from the discussion above is that, in the Tribunal, and aside from this 'all or nothing' position put by the Agency (and disavowed on appeal to this Court), there was no real debate about the construction of the phrase 'reasonable and necessary supports', as opposed to its application.

180    The Tribunal then referred expressly to s 4(11), and to the emphasis given to that provision in McGarrigle. It noted (correctly in our view) the connection between s 4(11) and s 34, and the connection with some of the objects in s 3. We see nothing erroneous in these parts of the Tribunal's reasons.

181    The Agency invited some focus on the following sentence in the Tribunal's reasons:

[31]    … If something about the disabled person means that he or she is not able to be included in the community as a fully participating citizen, and a reasonable and necessary support will avoid that result, it will be appropriate for it to be provided.

182    The Agency's criticisms of this passage are connected to what it contends is the Tribunal's failure to recognise the existence of a 'residual discretion' in s 33(2), described by the Agency as a discretion:

… not to include in the statement of participant supports provision/funding for general supports and/or reasonable and necessary supports even if they meet the requirements of s 34.

183    We have explained at [158]-[167] above why we reject the Agency's contention that the Tribunal failed to recognise any residual discretion of the kind asserted. However, this criticism is also an example of the Agency inviting the Court to read the Tribunal's reasons too closely, with an eye attuned to error. The sentence is no more than the Tribunal's own paraphrase of the guiding principle in s 4(11); it is not the Tribunal instructing itself as to the inevitable outcome of the statutory task on review. Nor is it, as the Agency contended, the Tribunal seeing s 4(11) as a provision that:

… operate[s] to convert everything which happens to achieve any of the outcomes in sub-paras (a)-(c) into a reasonable and necessary support which must be funded.

184    The Agency's contentions reflect hypervigilance, and read far too much into what is said in the Tribunal's reasons.

185    At [32]-[33], the Tribunal then considered the effect of s 14, which is a provision identified by the Court in McGarrigle. The Tribunal's references to, and use of, s 14 are also criticised by the Agency. The Agency contends that:

Section 14, however, is not about reasonable and necessary supports; it is about the Applicant's role in assisting people with disabilities more generally. The purpose and effect of s 14, contained in Chapter 2, is to enable the Applicant to provide assistance (ie grants) to fund persons or entities who provide assistance to people with disability. Chapter 3, which deals with the concepts of general supports and reasonable and necessary supports, is differently focussed; it is about the specific supports to be provided/funded for persons with such substantial disability that they are eligible to be participants: see Chapter 3, Part 1 (Becoming a participant).

186    The Tribunal indicated it had relied on McGarrigle to identify the relevance of s 14. The Court in McGarrigle did identify s 14 as relevant to the construction of the phrase 'reasonable and necessary supports': see McGarrigle at [28], [35], [37] and [41]. The Agency did not contend the Court in McGarrigle was wrong to identify s 14 as having relevance to this question. Indeed, in answer to a question from the presiding judge in oral argument, counsel for the Agency indicated the Agency 'would adopt' what was said about the phrase reasonable and necessary in McGarrigle, while making the point it is not necessary to give an exhaustive definition of the phrase.

187    The Agency criticised the passage of the Tribunal's reasoning where it relied on s 14 and said:

[34]    Section 14 of the Act tends to support the view that the support claimed in this case is a reasonable and necessary support, because of some of the evidence given in the case. Her response to her achievement of sexual release (to the extent to which she is able to obtain such release) as a result of the services of a specialised sex therapist were described by the applicant in evidence which I accept as good for her mental wellbeing, her emotional wellbeing and her physical wellbeing at Transcript page 18, where she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life.

[35]    Therefore funding for a specialised sex therapist to provide the services in question seems to me to be funding which will be for the purpose mentioned in s.14(a) of the Act.

188    When the terms of s 14 are recalled, it is evident that Parliament does there set out the two nominated purposes of the Agency funding persons or entities to assist people with disabilities, namely to:

(i)    realise their potential for physical, social, emotional and intellectual development; and

(ii)    participate in social and economic life.

189    Emphasising that s 14 is located in Ch 2 of the Act, not Ch 3, the Agency contends that s 14:

is not about reasonable and necessary supports; it is about the Applicant's role in assisting people with disabilities more generally.

190    Section 13 and s 14 describe two of the Agency's principal functions in providing assistance for people with disabilities. Section 13 empowers the Agency to provide 'general supports', as defined. Section 14 empowers the Agency to provide funding. It is reasonable, as the Court did in McGarrigle, to see that as including empowering the Agency to fund reasonable and necessary supports in accordance with Ch 3. Section 14 may not be limited to that aspect of the Agency's functions, but it includes it. Consideration of the purposes in s 14(a) is therefore not irrelevant. They did not feature prominently in the Tribunal's reasoning in any event.

191    Further, and contrary to the Agency's submissions, in these passages the Tribunal was not conflating 'supports', 'general supports' and 'reasonable and necessary supports'. The Tribunal recognised, correctly, that these terms are interrelated. All it was doing was checking for itself, in the face of blanket opposition from the Agency to the funding of any service of the kind sought by the respondent to any participant, that, as it understood the support claimed, and as it understood the purposes for which funding was provided, on the facts and evidence before it, it was not straying outside the scheme of the Act. We consider it was not.

192    At [36], the Tribunal sought to draw together the matters it had discussed to that point about the 'presently important themes suggested to me by the objects and guiding principles of the Act' to 'support the view that the support claimed is a reasonable and necessary support', subject to s 34. Paragraph [36] was the principal subject of the Agency's criticism that the Tribunal 'work[ed] back' to derive a 'presumptive outcome' from the objects and principles before considering s 34. There are at least two answers to this. First, in [36], the Tribunal expressly conditions its observations on engaging in the fact finding required by s 34. Second, the Agency's contentions again fail to allow [36] of the Tribunal's reasons to be read in its proper context, in particular the context of the arguments put to it. The Tribunal was faced with wholesale and blanket arguments by the Agency that, first, a sex worker could not fall within the concept of a 'support', and second, that:

the Tribunal cannot conclude that funding a sex worker for the Applicant to engage in intimate acts is a reasonable and necessary support.

(emphasis added)

193    In that context, in [36] of its reasons, as in other passages, the Tribunal was checking its approach against the objects and purposes of the legislation. That is an appropriate method: had it not undertaken that task, it might have been justifiably criticised. The fact that its consideration of s 34 in its written reasons comes sequentially after these passages is of no moment, because the Tribunal's reasons must be read as a whole, and the order in which these passages appear does not, in the circumstances of these reasons, indicate any impermissible setting aside of the matters in s 34.

194    At [37], the Tribunal dealt with the Agency's actuarial evidence, and found it was not relevant to the review, because the respondent sought specialised services, and the 'worst case scenario' presented by the Agency that large numbers of people with similar disabilities would suddenly seek funding for sex workers was not part of the issues it needed to decide. This was the second time the Tribunal had acknowledged expressly in its reasons the need to ensure the financial sustainability of the scheme. The Agency's case to the Tribunal was put on the basis of actuarial evidence which was said to support the Agency's arguments to the Tribunal (in relation to s 34(1)(c)) that:

The provision of sex-workers was not a cost previously factored in or budgeted into the scheme … In the event that there is any significant type of take up of this suggested support, there will be a significant burden on the Scheme effecting viability.

195    The difficulty for the Agency on the appeal is that the Tribunal, as fact finder, simply did not find the Agency's rather dramatic predictions persuasive so as to give weight to the proposition that approving funding for the respondent to have this support might have an adverse financial impact on the sustainability of the NDIS as a whole. Having rejected those predictions it focused, as it was entitled to do, on matters relevant to the respondent, and to the nature of the claimed support.

196    As part of its contentions on ground 4, the Agency criticises [37] of the Tribunal's reasons, contending the Tribunal 'did not have regard to ss 3(3)(b) and 4(17)' in three aspects of its decision - the 'construction' of 'reasonable and necessary supports', the 'construction and application of s 34' and 'its conclusion that s 33(2) does not contain a residual discretion'.

197    The Agency's submission is misplaced. First, the Tribunal did not proffer 'a' construction of reasonable and necessary supports, as some kind of definitive approach. Rather, it performed its task on review by considering whether the claimed support fell within the statutory phrase, and did so in the face of the Agency's blanket position we have described above. It did not proffer 'a' construction of the phrase, nor did it need to. To the extent the Agency appears to contend it did, because of the outcome, then the Agency is again quarrelling with the merits of the decision, given it made no submission to this Court that the claimed support is incapable of falling within the statutory phrase. The Agency had adopted that position before the Tribunal, but did not press it before this Court.

198    The Tribunal then turned to s 34, and its assessment of the considerations in that provision. The parties' submissions to the Tribunal reveal that this was the area of debate which preoccupied the review before the Tribunal. Despite the inaccurate submissions of the Agency, the Tribunal correctly recognised that s 34 is not definitional, stating:

[40]    Although s.34 is not in terms a definitions section of the expression 'reasonable and necessary supports' it stipulates a number of things, each of which the CEO, and therefore this Tribunal on the review must be satisfied. A decision maker must either accept all such matters or reject the claim in question.

199    The first sentence is a correct statement of the effect of s 34. As the respondent submitted, by the second sentence the Tribunal is simply recognising that if it is not satisfied of all matters, the claim for support must be rejected. That is also correct.

200    Contrary to the Agency's submissions, that sentence says nothing about the CEO's contended 'residual discretion', which the Agency submits is located in s 33, in any event. This paragraph is not about s 33.

201    The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions-maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material.

202    The s 34 criteria apply to specifications of all general supports, and all reasonable and necessary supports, to be entered into a participant's plan. However s 34(1) is to be construed, it must be capable of application to the decision of each and every delegate who approves a plan under s 33(2), and to each and every plan approved. Subject to matters of procedural fairness, what should be expected of the Tribunal in deciding whether to approve a plan with (contested) specific supports claimed by a participant is no more, and no less, than what the scheme requires of a delegate in non-contested plans. It is apparent from the example of the respondent's participant plans, to which we have referred above, that they are not complex documents, but they may specify a large number and wide range of supports. The inquiry required of the decision-maker is therefore a targeted one, but it is not necessarily a complex one. The criteria are straightforward and pragmatic. The decision-maker's approach is also entitled to be of the same kind.

Ground 4(f): whether the Tribunal failed to give the words 'reasonable' and 'necessary' separate work to do

203    In the context of its submission that the 'key section for consideration is the definition of "reasonable and necessary supports" in section 34', the Agency made the following submission to the Tribunal:

It is clear that each sub-section of section 34 must be met in order for a support to be considered 'reasonable and necessary'. As set out in McGarrigle v National Disability Insurance Agency, whether a support is 'reasonable' requires a different assessment to whether a support is 'necessary'. Each part of the section must be satisfied. The Applicant essentially submits that provision of a sexual partner is the reasonable and necessary support she needs. The respondent submits that whilst this might be her preference, such a request is not something the NDIS should provide and therefore cannot be reasonable and necessary for the NDIS to fund. In the Agency's submission, for the reasons set out below, the support is neither reasonable nor necessary.

(footnote omitted)

204    The remainder of the Agency's submissions, which focused on s 34, did not address in any delineated way why the claimed support was not 'reasonable', or not 'necessary'. Rather the submissions addressed, by reference to the evidence, why the Tribunal should not be satisfied of each criterion in s 34(1).

205    In ground 4(f), the Agency contends the Tribunal failed to give each of the two adjectives in the statutory phrase 'separate work to do'. It identifies [24] and [34]-[35] of the Tribunal's reasons as the passages where the Tribunal gave 'brief consideration' to the word 'necessary', and contends those passages contain errors. Otherwise, it contends:

the Tribunal's construction of 'reasonable and necessary' was unduly simplistic.

206    Again the Agency's contentions diverge from the way the matter was put at merits review. The Tribunal was not invited to embark on some global construction exercise of the statutory phrase. The Agency made no specific submissions to the Tribunal which necessitated it giving specific consideration to whether - for example - one of the s 34 criteria was not met because on no view of the evidence could the support be described as 'reasonable', or 'necessary'. The Agency's submissions were not framed in that way: as we have said, they were framed by argument about whether the evidence should lead the Tribunal to find each criterion was satisfied, and as we have also noted, this submission proceeded - erroneously - on the basis that s 34 defined the phrase 'reasonable and necessary supports'. There is thus considerable reinvention and reconstruction involved in this ground of appeal.

207    In its discussion of the guiding principles clause, the Tribunal stated:

[24]    Section 4(3) provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. The word 'need' in that section seems to me to bear its ordinary English meaning, and that suggests to me in turn that the word 'necessary' in the expression 'reasonable and necessary supports' also bears its ordinary English meaning. One should ask in that respect: does the support fulfil a need of the participant? The word will extend to a health need, but is not limited to health needs.

208    The Agency contends this is an 'incorrect construction'. It is not a construction in the way the Agency's submission implies. It is no more than the Tribunal noting the correlation between the use by the Parliament of the word 'need' in the guiding principles provision, and the use by the Parliament of the word 'necessary', and observing (correctly in our respectful opinion) that the correlation will inform what is included in the concept of necessary. To say that a support which fulfils a need of a participant may fall within one of the two aspects of 'reasonable and necessary support' seems to us to be an uncontroversial proposition.

209    We have dealt above with why we consider there is nothing erroneous in the Tribunal's references to s 14 of the Act.

210    We see nothing in [34]-[35] of the Tribunal's reasons which reveals any misunderstanding about the key statutory phrase. Just as the reasons of an administrative tribunal are not to be read with an eye attuned to the detection of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang), those reasons must also not be read divorced from the submissions advanced before it by a party. The reference, for example, in [34] of the Tribunal's reasons to the services being performed as being 'good for her mental wellbeing, her emotional wellbeing and her physical wellbeing' should thus not be read as defining the Tribunal's understanding of the phrase 'reasonable and necessary' but rather simply as being a finding of fact directed to the benefit the respondent derived from the service.

211    The Tribunal undertook the task the statute required of it on review. There was nothing 'simplistic' about its approach - either to the Act, or the evidence. It was not invited by the Agency to consider whether one of the s 34 criteria was not met because on no view of the evidence could the support be described as 'reasonable' or 'necessary'. It was invited by the Agency to reject the entirety of the respondent's case on review on the basis that the claimed support could not be a support at all, was inconsistent with the objects of the Act, and further could not satisfy any of the criteria in s 34. In the course of considering the evidence, the respondent's arguments and the Agency's responses, the Tribunal dealt with what was put to it.

212    Ground 4(f) fails.

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.

The supplementary submissions on the phrase 'reasonable and necessary supports'

250    After a number of exchanges between the Bench and counsel during oral argument, the Court invited the Agency to file supplementary written submissions, to clarify its contentions about the proper construction of the phrase 'reasonable and necessary supports'. The respondent was given an opportunity to reply. Both parties filed supplementary submissions. The Agency's submissions addressed the meaning of each of 'reasonable' and 'necessary' as stand-alone words, and did so at a level of abstraction distant from the Tribunal's reasons, as impugned by the existing grounds. The respondent's submissions, being responsive, did the same. The submissions invited the Court to express some kind of conclusive opinion on the content and meaning of each component of the statutory phrase.

251    We have considered those submissions; however, in our respectful opinion they are not relevant to the issues arising in the appeal. Putting to one side the impermissible generality of the fourth question of law, the grounds raised under that question are not concerned with any attempted comprehensive or general construction of the meaning of the phrase 'reasonable and necessary supports'. They are more confined than that. The closest that any of the grounds come to an argument that might raise any question of the general construction of the phrase is ground 4(f), concerning whether the Tribunal gave the words 'reasonable' and 'necessary' different work to do. The difficulty with that ground, as we have explained, is that only the most general argument was put to the Tribunal, effectively saying little more than that whether a support is reasonable requires a different assessment to whether it is necessary. We have rejected the Agency's challenge to the Tribunal's reasoning.

252    We do not consider it is appropriate on this appeal for the Court to express any opinions about the content or limits of the phrase 'reasonable and necessary supports' at some level of general principle, assuming that could be done, which we consider is unlikely. As we have noted, there may be circumstances where the outer limits of the meaning of the phrase need to be considered and determined. Had the Agency pressed its case that the claimed support could never be a reasonable and necessary support within the meaning of the Act, the question of outer limits may have arisen. The Agency did not press that argument. Nor did it impugn the Tribunal's reasons by reference to legal unreasonableness or irrationality in respect of its fact finding about the claimed support. Further, the Agency's supplementary submissions pay insufficient regard to the fact that the statutory language is that of a composite phrase.

253    Therefore, and with respect, we do not consider that the parties' supplementary submissions raise matters of relevance to the Agency's grounds under question 4.

Ground 5

254    By ground 5 the Agency contends that the Tribunal failed to give adequate reasons for rejecting the use of sex toys with assistance from an occupational therapist as a viable alternative to a sex worker.

255    For the reasons given with respect to the seventh impugned finding referred to in ground 3 we would dismiss this ground. The confidential reasons engaged with the question of the use of sex toys by the respondent. The lack of more detailed reasons expressly addressing the particular evidence and circumstances of the respondent as disclosed at the third hearing is explicable having regard to the manner in which the case was put before the Tribunal by the Agency.

Conclusion

256    The ultimate fate of this appeal was dictated by the findings of fact as made by the Tribunal and the submissions as made to the Tribunal by the parties.

257    As is apparent from the manner in which the Agency sought to draft its grounds of appeal and the submissions advanced before this Court, there was a considerable shifting of position on the part of the Agency as to the manner in which it conducted its case before the Tribunal as opposed to the issues it sought to have resolved on appeal. Much of the appeal was directed to submissions which were either not advanced before the Tribunal or a reinvention of the submissions which were advanced. Many of the submissions advanced by the Agency before this Court, moreover, sought to either construe the reasons provided by the Tribunal in an impermissibly pedantic manner or to construe those reasons by reference to submissions not previously made and as resolving submissions to which the reasons were not directed.

258    It follows that we would dismiss the appeal.

Associate:

Dated:    12 May 2020