Foxtel sports included in NDIS support plan

A NDIS participant will have his Foxtel sports costs covered after the Federal Court agreed this was just because his disability prevented him from attending AFL and horse racing in person.

Victorian man Michael Deayton, aged in his 60s, lives with congenital nemaline myopathy, a rare genetic muscle disorder which causes permanent and progressive muscle weakness. He uses a wheelchair and has difficulty with thermoregulation.

The National Disability Insurance Agency challenged Mr Deayton’s claim he was entitled to NDIS support for the costs of Foxtel Sports channels, which made up half of his annual Foxtel subscription, on the grounds it was not a “necessary and reasonable support” under NDIS legislation.

In a 45-page Federal Court judgment handed down on Tuesday, Justice Hill dismissed the agency’s appeal of a decision by the former Administrative Appeals Tribunal (AAT) in September 2024 that Foxtel was a “necessary and reasonable support”.

The agency appealed on questions of law, arguing the AAT had misconstrued Section 34(1)(c) of the National Disability and Insurance Scheme 2013 (Cth), relating to value for money; and/or rules 3.1(a) and 5.2(a) of the National Disability and Insurance Scheme (Support for Participants) Rules 2013 (Cth), related to day-to-day living costs, in finding that the Foxtel support was payable.

It also argued the tribunal had failed to consider the agency’s submission that the cost of the Foxtel subscription was not attributable to Mr Deayton’s disability support needs.

Justice Hill did not accept any of the arguments, finding the AAT had not made interpretation errors and had considered the substance of the agency’s submissions.

The agency had submitted that the Foxtel support did not provide value for money, because Mr Deayton could continue to engage with football and horse racing using free-to-air television, and use radio or the internet to be aware of the results.

The AAT had found the support did provide value for money, however, because:

• if not for his disability, Mr Deayton would be attending football matches and horse races as he once did;
• the cost of Mr Deayton attending football matches in an air-conditioned room, to counter his thermoregulation issues, would cost substantially more than that a Foxtel sports subscription; and
• only some AFL matches, and no interstate horse racing, were broadcast on free-to-air television, and so this was not a comparable support.

It had concluded the Foxtel support would “enable Mr Deayton to have access to watching the horse races and football matches of his choosing and to keep abreast of latest developments in horseracing and football so he is well-informed when conversing and socialising with his personal networks about those activities”.

The tribunal had said it was reticent to approve a streaming service for an NDIS participant but was satisfied an exception under rule 5.2(a) applied in Mr Deayton’s case.

“Mr Deayton is from a family with very close ties to AFL football. Mr Deayton is also a member of a horse syndicate with other people. He and his syndicate members track the progress of 10 horses and races they are involved in,” it stated.

“Sport is significant aspect of his personal expression and how he likes to enjoy life with his family and friends. It forms an important platform upon which he regularly socialises with others, including his siblings.

“It is important to customise Mr Deayton’s NDIS plan to provide him with supports which respond to the specific ways in which he prefers to socialise with his family and friends.”

Justice Hill said a key to the tribunal’s reasoning was that it had analysed the relevant support as enabling Mr Deayton to watch AFL games and horse races of his choosing, not just any AFL games or any horse races.

He said the AAT had considered whether the proposed alternatives were sufficiently similar to achieve the objectives of his plan.

“The tribunal’s decision on this point could perhaps be considered generous,” he said.

“However, a decision that enables Mr Deayton to watch AFL games and horse races of his choosing is in keeping with the objects in s 3(1)(e) and (g) (enabling people with disability to exercise choice and control, and to maximise independent supports and full inclusion in the community), and the general principles in s 4(1) and (11) of the NDIS Act (about the rights of people with disability to realise their potential for social development, and to participate in the community).”

The agency also lost its challenges of the AAT’s decision to approve physiotherapy and massage therapy, and electricity bill support, as “stated supports” for Mr Deayton under NDIS legislation.

Justice Hill dismissed the agency’s appeal with costs.

The agency said it was considering the decision.