NDIS Funding - sex services no longer approved

The National Disability Insurance Scheme Act 2013 (“the Scheme”) was implemented to give people with disability autonomy over what supports they needed, who would deliver them, and how and when they would be delivered.

However, recent legislative reforms to the Scheme have sparked conversation surrounding the rights and protections afforded to individuals with disability in Australia.

In 2020, the Federal Court issued a decision in favour of the National Disability Insurance Agency approving and funding specialised sex services (where they are deemed reasonable and necessary).

In that case, a woman with multiple sclerosis pursued the legal challenge, and was ultimately successful, because there was no explicit exclusion of funding for sex services in the Scheme, nor the National Disability Insurance Scheme Rules 2018.

More recently, Minister Bill Shorten proposed legislative reforms to overturn that decision and amend the Scheme to refine the scope of NDIS funding. The proposed reforms sought to ban, among other services, the provision of funding for sex workers under the Scheme. 

The reforms, referred to as the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill, were passed by the Parliament on 22 August 2024, and came into effect across Australia on 3 October 2024.

Essentially, the Scheme now restricts NDIS funding for participants to a list of prescribed, approved supports / services, and explicitly lists the supports / services that funding cannot cover. The list of approved supports can be located on the NDIS website, and are those that relate directly to the individuals’ disability.

The list of supports which are no longer approved, includes (among others): sexual services and sex work, work-specific aids and equipment, pharmaceuticals related to mental heath, and / or not evidence-based therapies or services.

The legislative reforms have prompted concern from, and for, the disability sector, particularly in relation to individuals’ autonomy and access to resources. Many worry that refining the scope of NDIS funding will create an arbitrary scheme, far from the original purpose of providing choice and control of supports to people with disability. Concerns have also been raised that the amendments to the Scheme will reduce NDIS participants’ opportunities to engage in everyday life or force them towards unsafe practices.

The scope and impacts of these amendments will continue to emerge as NDIS participants navigate the changes.

If you need assistance or further information, please contact Tess Danjoux for at tdanjoux@marsdens.net.au.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication