McKenzie and National Disability Insurance Agency
[2019] AATA 3275
•5 September 2019
McKenzie and National Disability Insurance Agency [2019] AATA 3275 (5 September 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/1852
Re:Ian McKenzie
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal: Senior Member Fiona Meagher
Date:5 September 2019
Place:Brisbane
The decision under review is set aside and remitted to the Respondent with the direction that the “statement of participant supports” in the plan dated 23 November 2017 is to include sufficient funding to enable the replacement of the ducted air-conditioning system in the Applicant’s home, as quoted by Mr Dale O’Brien, and the plan review date is to be fixed at 12 months from the date of this decision.
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Senior Member F MeagherCatchwords
NATIONAL DISABILITY INSURANCE SCHEME - reasonable and necessary support – Operational Guidelines – home modifications - replacement of an air-conditioning system - Multiple Sclerosis – Decision set aside and remitted to the Respondent
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Milburn v National Disability Insurance Agency [2018] AATA 4928
Pavilupillai v National Disability Insurance Agency [2018] AATA 4641
Re Drake v Minister or Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Secondary Materials
Explanatory Statement issued by the Authority of the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform
Operational Guidelines of the National Disability Insurance Agency
REASONS FOR DECISION
5 September 2019
INTRODUCTION
Mr Ian McKenzie has made an application to the Administrative Appeals Tribunal (“the Tribunal”) for review of a decision made by the National Disability Insurance Agency (“the NDIA”) that the replacement and upgrading of the air-conditioning system in his home at Bucasia, near Mackay in Queensland, is not a reasonable and necessary support pursuant to subsection 34(1) of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”).
For the reasons which are set out below, the reviewable decision is set aside. The matter is remitted to the Respondent with a direction that the “statement of participant supports” in the plan dated 23 November 2017 is to include sufficient funding to enable the replacement of the ducted air-conditioning system in Mr McKenzie’s home, as quoted by Mr Dale O’Brien, and the plan review date is to be fixed at 12 months from the date of this decision.
THE NATIONAL DISABILITY INSURANCE SCHEME
The objects and principles of the NDIS Act are set out in Part 2 of the NDIS Act. Subsection 3(1) of the NDIS Act relevantly includes:
(1)The objects of this Act are to:
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(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 mainstream community; and
Section 4 of the NDIS Act sets out the General Principles guiding actions under the NDIS Act and they relevantly include:
(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.
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(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
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(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.
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(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 mainstream community and in employment.
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(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
Section 17A of the NDIS Act contains principles relating to the participation of people with disabilities including:
(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.
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(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.
The functions of the agency are set out in section 118 of the NDIS Act and include:
(1)The Agency has the following functions:
(a)to deliver the National Disability Insurance Scheme so as to:
(i)support the independence, and social and economic participation, of people with disability; and
(ii)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and
(iv)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community; and
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Section 33 of the NDIS Act deals with what must be in a participant’s plan. Subsection (1) sets out the requirements with respect to the participant’s statement of goals and aspirations, including that they are prepared by the participant. Subsection (2) applies to the statement of participant supports which must also be included in the plan, and which must be prepared with the participant and approved by the CEO (Emphasis added). Subparagraph 33(2)(b) specifically provides:
A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
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(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
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Subsection 33(5) of the NDIS Act states that the matters to which the CEO must have regard in deciding whether or not to approve the statement of participant supports are as follows:
(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 any methods and have regard to any criteria prescribed by the National Disability Insurance Scheme rules in relation to the manner in which the reasonable and necessary supports will be funded; 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.
Subsection 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, as follows:
(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.
The NDIS Act does not define the phrase ‘reasonable and necessary’. In McGarrigle v National Disability Insurance Agency (McGarrigle)[1], Mortimer J stated as follows:
[91] Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
[1] [2017] FCA 308 [91].
Further guidance with respect to the funding or provision of reasonable and necessary supports is found in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) which are made pursuant to subsection 35(1) of the NDIS Act which provides:
(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:
(g)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
(h)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(i)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.
By reference to section 209 of the NDIS Act, the Rules are a legislative instrument, thus binding the Tribunal. In this case the relevant rules include:
Value for money
3.1In deciding whether 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, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
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Reasonable family, carer and other support
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(b)for other participants:
(i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
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General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
There are also Operational Guidelines which constitute government policy. I am not bound by policy as set out in the Guide. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (Drake No 2)[2], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
[2](1979) 2 ALD 634.
Therefore unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they are relevant to consideration of what is a “reasonable and necessary support”. Both parties made submissions regarding the Operational Guidelines which will be dealt with in the consideration below.
ISSUE
The issue to be decided by the Tribunal is whether the replacement of the air-conditioning system in Mr McKenzie’s home is a reasonable and necessary support pursuant to section 34 of the NDIS Act.
BACKGROUND
Mr McKenzie was born in 1963. He was diagnosed with Multiple Sclerosis in 2003, after developing initial symptoms in 2002. Mr McKenzie retired from work in 2013 due to the impact of Multiple Sclerosis upon him.
Mr McKenzie lives with his wife in a house that they built in 2000 in a suburb of Mackay in Queensland. At the time of building the house, a ducted air-conditioning system was fitted to both lounge rooms, both dining rooms, the kitchen, all three bedrooms and the study. Air-conditioning was not fitted in the hallways, laundry, bathroom, ensuite and walk-in wardrobe.
Mr McKenzie describes the current air-conditioning in his house as follows (unedited):[3]
The system is undersized for its purpose (14Kw vs 18-22 kw), hence ineffective at cooling the whole house uniformly. The system operates on refrigerant gas. I have been informed by JM Air Conditioining that refrigerant gas is being phased out and is either is no longer available or extremely expensive. I have also been informed that retro-fitting the exisiting system is cost prohibitive and impractical. I have also been informed that spare parts for the exisiting system are no longer available.
[3] Exhibit 2, Applicant’s Statement dated 22 November 2018 [72].
Mr McKenzie’s evidence included that he has attempted to upgrade his air-conditioning system to the extent possible, with little effect.[4] A Statutory Declaration of Mr Dale O’Brien, air-conditioning expert, dated 20 March 2019[5], confirmed the state and age of Mr McKenzie’s existing air-conditioning as follows (unedited except as indicated):
[4] Exhibit 3, Applicant’s Statutory Declaration dated 5 March 2019 [35].
[5] Exhibit 18, Statutory Declaration of Mr Dale O’Brien with attachments dated 20 March 2019.
4I have over 17 years’ experience in the air-conditioning industry in field technician, design and mangement roles.
5I have attended Ian and Paula McKenzie’s home located at [address intentionally deleted by the Tribunal] (the home) on several occassions to assess the exisiting air conditioning system for repair and to proivde quotes for the installation of a new air conditioning system. Dates attended: 25/09/2017, 13/01/2017, 07/03/2017, 25/07/2016, 01/07/2015, 27/07/2015, 01/07/2015
6I understand that Mr Ian McKenzie (Ian) is the applicant in a matter before the Administrative Appeals Tribunal relating to supports being requested from the National Disability Insurance Scheme.
7I have provided an air conditiong reports and quotes to the Administrative Appeals Tribunal in Ian’s matter:
(a)Quote dated 06/07/2017 – Annexure “DO1”
(b)Report dated 27 June 2018 – Annexure “DO2”
(c)Email report dated 31 July 2018 – Annexure “DO3”.
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10Across the industry it is standard for an air conditioning unit to have an operating life of 7 to 12 years. It is also standard practice in the industry for system parts to stop being produced, for older models, after 10 years. Technological developments result new models becoming available and older models being superseded. This means that it becomes difficult to almost impossible to obtain parts to repair older superseded systems.
11The current air conditioner, in Ian’s home, is 14 kilowatts and is more than18 years old. My assessment is that it was undersized for the size of the home at the time of installation and a larger system should have been installed.
12As the current system is more than 18 years old, parts are no longer available. This makes servicing and repair very difficult.
13It is my assessment that the existing system has probably struggled to operate efficiently for several years. My understanding is that Ian is at home most of the time and is operating the system whilst he is in the house. Given the age of the existing system is not able to cope with current demands. Ian’s current system is not working efficiently and will fail in the near future.
14It is not possible to increase the number of vents for the existing air conditioning system in Ian’s home and it would in fact have a negative effect, due to:
·the unit being 18 years old,
·the unit is struggling to operate in summer climates;
·the unit struggles in periods of high humidity,
·by adding more vents the load on a unit is increased and the system was not designed to cope with the additional load additional vents would create load, and
·the system cannot handle any more load/demand.
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15The exisiting system requires to be replaced and a new system installed.
According to Mr McKenzie, he suffers from the following symptoms as a result of the impact of Multiple Sclerosis upon him:
·fatigue;
·nerve pain;
·sensitivity to hot and cold temperatures;
·loss of balance;
·blurred vision;
·loss of appetite;
·nausea;
·dizziness;
·loss of motor skills and weakness in the arms and legs;
·cognitive dysfunction, including difficulty processing information;
·lack of concentration;
·difficulties with problem solving, speech and communication;
·paraesthesia; and
·muscle spasms, tremors and cramps.
Mrs McKenzie, Mr McKenzie’s wife, gave evidence consistent with that of her husband regarding the history, symptoms and impact of Multiple Sclerosis upon Mr McKenzie including the difficulties he experiences with changes in temperature.[6]
[6] Exhibit 5, Statement of Ms Paula McKenzie; Transcript, page 18-23.
Mr McKenzie became a participant in the NDIS in 2016, pursuant to subsection 33(2) of the NDIS Act. His first plan commenced on 2 December 2016, and in November 2017 he commenced his second plan. Mr McKenzie’s second plan contained a number of goals which will be set out fully below, and a statement of participant supports which did not include funding for the cost of replacing the air-conditioning system in his home.
Mr McKenzie’s second plan lists the following goals:[7]
My First Goal is:
During this plan: To maintain and improve my physical strength and wellbeing with the assistance of various clinical therapies including but not limited to neurophysiotherapy.
My Second Goal is:
During this plan: To maintain my strength, coordination, balance, health and nutrition with the assistance of various therapies including but not limited to Physiotherapy.
My longer term goals and aspirations are:
Goal: Support in my daily life to improve and maintain my independence including but not limited to household and gardening assistance.
Relates to: Daily life
[7] Exhibit 1, T-Documents, T12, page 107.
On 21 February 2018, Mr McKenzie requested an internal review of the decision of the Respondent to approve the statement of supports contained in the second plan. His request for an internal review stated as follows (unedited):[8]
I first raised the issue of my need for replacement air conditioning at my initial planning meeting with the NDIA in 2016. I was told at that meeting that I would have to make this request separately from my Plan. In accordance with this advice my Occupational Therapist completed the NDIS “General Assistive Technology Assessment Template on 29 June 2017. [Attachment E] In August 2017 I submitted this to the NDIA and requested that my plan be reviewed to include provision for replacement air conditioning. The NDIA rejected this request. I lodged an application for Internal Review of this decision on 9 November 2017, which was rejected by the NDIA on 13 November 2017.
I then applied for an external review to the AAT.
As stated above a new plan issued on the 23 November 2017. This plan also did not include air conditioning (cost of replacing air conditioner/installation) in the participant supports.
I seek Review of participant support in the 2017/2018 plan to include the cost replacing the air conditioning system for my home.
[8] Exhibit 1, T-Documents, T7, page 29.
On 27 March 2018, the Respondent wrote to Mr McKenzie affirming the original decision, insofar as it did not include funding for replacement of the air-conditioning system in Mr McKenzie’s home on the basis this was not a reasonable and necessary support because subparagraphs 34(1)(c)-(f) of the NDIS Act were not met (decision under review). Specifically, the internal review stated (unedited):[9]
The reasons the supports do not meet each criteria are as follows: See below:
34 1.c Support represent value for money – There is insufficient evidence provided of how the participant manages thermoregulation in other settings such as community activities and about the air conditioning/ambient temperatures in these locations therefore it is not possible to determine if the funding of air conditioning will substantially impove the participants quality of life. (Rule 3.1 (a).
34 1.d Effective and beneficial for the participant – There is no evidence supplied that the provision of air conditioning is the only strategy considered or trialled to manage and reduce fatigue due to the participant’s Multiple Sclerosis. Also, the evidence provided does not take into consideration the needs of the participant to manage the effects of Multiple Sclerosis when accessing the community and could be considered a deterrent to the participant engaging in community based activities and a demotivationing factor when considering activities of social inclusion outside of the home.
34 1.e Coordinate with but does not relace family, carer, community and informal support – As per the ABS Report Energy Use and Conservation, March 2014 73.7% of Queensland households have some form of air conditioning and is considered to be a day to day living expense incurred by the most Australians and as such, is not appropriately funded by the NDIS as per NDIS (Support for Participant) Rules 2013 5.1.d
34 1.f Most appropriately funded by the NDIS and not by other general system or service delivery – When considering appropriateness of funding the NDIS Operational Guidelines 4. Assistive Technology has been heavily weighted as the provision of air conditioning is not considered to be a piece of assistive technology that aids a disability support need.
[9] Exhibit 1, T-Documents, T2, page 4.
On 9 April 2018, Mr McKenzie lodged an application for review of that decision with the Tribunal.
On 26 November 2018, pursuant to section 26 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and with the consent of the parties, the Tribunal made orders as follows:
In accordance with section 26 of the Administrative Appeals Tribunal Act 1975, the Tribunal, with the consent of the parties, varies the decision dated 23 November 2017 as follows:
1The date by which the Respondent must review the plan under Division 4 of the National Disability Insurance Scheme Act 2013 is amended from 23 November 2018 to 23 May 2019;
2The funding for supports identified as reasonable and necessary under section 34 of the National Disability Insurance Scheme Act 2013 is increased as follows:
(a)The funding for improved life choices is increased from $1,177.44 to $1,766.16;
(b)The funding for improved daily living is increased from $5,456.53 to $8,184.80; and
(c)The funding for core supports is increased from $6,573.00 to $9,859.50.
The Tribunal notes:
A.The effect of this agreement is that the Respondent will build an interim plan on a 6 months pro-rata basis of the supports already funded in the plan commencing on 23 November 2017 and to be reviewed by 23 November 2018. The interim plan will be comprised of supports in the following amounts:
(a)The funding for improved life choices is $588.72;
(b)The funding for improved daily living is $2,728.27; and
(c)The funding for core supports is $3,286.50;
B.This agreement does not represent an agreement on the substantive issues before the Tribunal in this proceeding.
Further orders were made, with the consent of the parties, by the Tribunal on 17 May 2019, pursuant to section 26 of the AAT Act, as follows:
In accordance with section 26 of the Administrative Appeals Tribunal Act 1975, the Tribunal, with the consent of the parties, varies the Respondent’s decision dated 27 March 2018 as follows:
1The date by which the Respondent must review the plan under Division 4 of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”) is amended to the date 6 months after the day on which the supports under paragraph 2 are specified in the Applicant’s statement of participant supports;
2The funding for supports identified as reasonable and necessary under section 34 of the NDIS Act will remain as specified in the statement of participant supports that came into effect on 23 November 2017 on a further 6 month pro rata basis.
The Tribunal NOTES that:
A.This agreement is reached under section 26 of the Act to ensure the continued availability to the Applicant of funding for reasonable and necessary supports until such time as the Tribunal proceeding is finalised; and
B.This agreement does not represent an agreement on the substantive issues before the Tribunal in this proceeding.
A hearing took place on 18, 19, 20 and 28 March 2019. Evidence was given at the hearing by the following witnesses:
Name
Role
Party
Mr Ian McKenzie
Applicant
Applicant
Mrs Paula McKenzie
Applicant’s Wife
Applicant’s Lay Witness
Dr Nicole Grant
Occupational Therapist
Applicant’s Expert Witness
Dr Mike Boggild
Neurologist
Applicant’s Expert Witness
Dr Ollie Jay
Associate Professor
Applicant’s and Respondent’s Expert Witness
Dr Georgia Chaseling
Expert in Thermal Physiology
Applicant’s and Respondent’s Expert Witness
Mr Kim Wilson
Electrical Supervisor of McGuire Air
Respondent’s Expert Witness
Dr Janaka Seneviratne
Specialist Neurologist
Respondent’s Expert Witness
CONSIDERATION
Subparagraph 34(1)(a): Will the support assist Mr McKenzie to pursue the goals, objectives and aspirations included in his statement of goals and aspirations?
At the hearing it was acknowledged by the Respondent that the criteria in subparagraphs 34(1)(a) and (d) of the NDIS Act are met by Mr McKenzie. Having regard to Mr McKenzie’s goals and aspirations, and based upon the evidence before the Tribunal, I find those requirements to be met. At the hearing the Respondent also agreed that it is reasonable and necessary to fund the cost of installing reverse cycle set system air-conditioners in one bathroom and one room of Mr McKenzie’s choice.
Subparagraph 34(1)(b): Will the support assist Mr McKenzie to undertake activities, so as to facilitate his social and economic participation?
Overwhelmingly the expert evidence before me accepted that people with Multiple Sclerosis experience temporary worsening of symptoms when their core body temperature rises. Similarly, the experts generally accepted the desirability of Mr McKenzie having access to at least some air-conditioning. It is not as straightforward to form conclusions as to the other questions ventilated about the role of air-conditioning in relation to preventing the temporary worsening of Mr McKenzie’s symptoms. This is, in the main part, because of the fact that each individual with Multiple Sclerosis is impacted differently, and has a different response to a rise in their core temperature. While Doctors Jay and Chaseling, (expert witnesses for Mr McKenzie and the Respondent, and respectively a thermoregulatory physiologist and ergonomist and expert in thermal physiology, with a specific focus on people with Multiple Sclerosis) opined that a rise of 0.5° in core temperature would occur when undertaking light housework over three hours in an ambient temperature of more than 22.4°C,[10] it was unclear precisely what would constitute “light housework”.[11] Dr Seneviratne, specialist neurologist and expert witness for the Respondent, states in his report:
In my opinion, it would be safe to assume that the most appropriate and safest ambient temperature for someone with Mr McKenzie’s diagnosis would range between 22 degrees to 28 degrees centigrade. However, as mentioned previously, depending on the individual, the most appropriate and safest ambient temperatures could fluctuate.[12]
[10] Exhibit 9, Report of Dr Jay and Dr Chaseling titled ‘National Disability Insurance Agency: Air conditioning for people with multiple sclerosis – Is it reasonable and necessary support under the NDIS?’, page 2.
[11] Transcript, page 57.
[12] Exhibit 22, Medico-Legal Report of Dr Senevirantne dated 31 August 2018, page 5.
Mr McKenzie reports that the current air-conditioning system in his home does not prevent temporary worsening of his symptoms.[13] Further, Mr McKenzie reports that he experiences worsening symptoms when moving from one room to another.[14] Mr McKenzie also reports that only a small change in temperature affects him, at least on a cumulative basis.[15] He also states that he needs a constant temperature throughout his environment and that he needs to be able to change the temperature of rooms within his house to maintain his independence, undertake activities of daily living and feel that he is contributing to his household.[16] Mr McKenzie also gave evidence that his worsening symptoms resulting from temperature change persisted well beyond the duration of the transient phenomenon suggested by Dr Boggild.[17]
[13] Transcript, page 10; Exhibit 2, Applicant’s Statement dated 22 November 2018 [71] & [76].
[14] Exhibit 2, Applicant’s Statement dated 22 November 2018 [62].
[15] Exhibit 2, Applicant’s Statement dated 22 November 2018 [63].
[16] Exhibit 2, Applicant’s Statement dated 22 November 2018 [74]–[75].
[17] Exhibit 3, Applicant’s Statutory Declaration dated 5 March 2019 [39].
Dr Jay’s evidence in this regard was that higher levels of fatigue (as a result of temperature change) were a symptom which could persist for an “extended period”, which he qualified to “mean hours, not days”.[18] Apropos of this issue, (and as already referred to), Dr Seneviratne in his report of 31 August 2018,[19] was asked a number of questions, including at 1a, ‘What is the most appropriate and safest ambient temperature range for someone with Mr McKenzie’s diagnosis?’, to which he responded:[20]
… the most appropriate and safest temperature range for patients with neurological diseases (which includes MS) varies depending on the individual. In my experience, most patients with neurological diseases would have difficulty in warmer climates when the temperature is in the high range. In my opinion, it would be safe to assume that the most appropriate and safest ambient temperature for someone with Mr McKenzie’s diagnosis would range between 22 degrees to 28 degrees centigrade. However, as mentioned previously, depending on the individual, the most appropriate and safest ambient temperatures could fluctuate.
[18] Transcript, page 60.
[19] Exhibit 22, Medico-Legal Report of Dr Senevirantne dated 31 August 2018.
[20] Exhibit 22, Medico-Legal Report of Dr Senevirantne dated 31 August 2018, page 5.
At Question 1d, Dr Seneviratne was asked ‘If that person was in an air-conditioned building where the air temperature varied across different areas within a small range, what would the safe range of temperature be?’, to which he responded:[21]
Again, this would depend on the patient’s neurological deficits and their tolerance to heat and ability to respond to fluctuations in temperatures. I am not an expert in the ambient air temperatures and how a person’s body could react to fluctuations in air temperatures. However, in my opinion, it would be reasonable to assume that a patient with MS would be able to cope with ambient air temperature ranges of two to three degrees.
[21] Exhibit 22, Medico-Legal Report of Dr Senevirantne dated 31 August 2018, page 6.
At Question 4d, Dr Seneviratne was asked (unedited) ‘For a person with the Applicant’s thermoregulation needs, what are your recommendations for that person in the following circumstances: when they experience difference temperatures in their home?,’ to which he responded:[22]
It would be appropriate to keep the temperatures in their house at an optimal level to maintain the core temperature of the body constant. It would be appropriate to adjust the room temperatures to give a constant temperature inside the house to prevent fluctuations of core body temperatures.
[22] Exhibit 22, Medico-Legal Report of Dr Senevirantne dated 31 August 2018, page 8.
Under cross examination, Dr Boggild’s evidence was that a person impacted by Multiple Sclerosis would be unlikely to experience worsening symptoms as a result of moving between rooms of say 25° to 27°. He went on to say: [23]
I think it’s fair to say, you wouldn’t notice that in a very immediate term. It’s more significant fluctuations in temperature. I certainly from the description, I couldn’t quote from any scientific literature, I’d have to say this is really based on patient’s description of the circumstances. Certainly, my practice previously was previously in the UK as you can probably tell, the difference being the 12° in Liverpool and 30° in North Queensland is certainly notable and patients are more aware of it in this neck of the woods”.
[23] Transcript, page 43.
Dr Grant, Mr McKenzie’s occupational therapist, accepted that minor fluctuations in temperature could temporarily worsen Mr McKenzie’s symptoms,[24] and, in that regard, relied on literature which she had read to assist in the preparation of her report.[25] Ultimately I did not find the literature to which she referred helpful with respect to this question.
[24] Exhibit 6, Report of Dr Nicole Grant dated 28 June 2017, page 3.
[25] Exhibit 14, email containing Dr Nicole Grant’s list of literature and materials considered dated 19 March 2019.
The expert witnesses were asked about alternative strategies Mr McKenzie might be able to adopt, such as performing work or exercise outside during early morning or late evening, using cooling packs, drinking cold drinks, having cold showers, and using cooling garments and cooling scarves and towels. Mr McKenzie’s evidence was that he was already implementing a number of those strategies including going outside in the early morning or late evening,[26] and using cooling scarves and towels and drinking cooled water.[27] Dr Grant’s view was that a number of those strategies were impractical.[28] Drs Jay and Chaseling’s report acknowledged some possible utility in some of these strategies.[29] I have formed the view that, to the extent possible, Mr McKenzie is utilising many different strategies to manage the temperature impacting him in his home environment, but that ultimately there is insufficient evidence to support any of those other strategies alone, or together, as being adequate to manage Mr McKenzie’s core temperature in his particular circumstances, including if he were to have reverse cycle set air-conditioning systems in one room of his choice and/or bathroom, as proposed by the Respondent.
[26] Exhibit 2, Applicant’s Statement dated 22 November 2018 [45].
[27] Exhibit 2, Applicant’s Statement dated 22 November 2018 [73].
[28] Transcript, page 33.
[29] Exhibit 9, Report of Dr Jay and Dr Chaseling titled ‘National Disabiity Insurance Agency: Air conditioning for people with multiple sclerosis – Is it reasonable and necessary support under the NDIS?’, pages 8-10.
Mr McKenzie’s evidence was that, when undertaking activities, his functional capacity is noticeably improved in air-conditioned surrounds and compromised when not.[30] Dr Boggild’s evidence was that there is “minimal scientific literature” supporting the proposition that cooling devices improve the functional capacity of people with Multiple Sclerosis,[31] and Dr Seneviratne broadly agreed with that view but noted that people with Multiple Sclerosis:[32]
describe significant difficulties when they are exposed to warm temperatures (more than 28°C) and they describe the transient decrease in their functional status and extreme fatigue when exposed to these temperatures. In my experience, patients with MS and some patients with neurological diseases also describe extreme fatigue and tiredness when exposed to higher temperatures and they do significantly better and function better to a significant degree when performing day to day activities or their work activities in an air conditioned environment. I would agree that an able bodied person would also prefer similar working environments (i.e. working or performing day to day activities in an air conditioned environment) rather than being exposed to warmer temperature. However, the difference would be that an able bodied person without a significant neurological condition (such as MS) would not have long lasting effects (such as fatigue, weakness, impairment of cognitive function) as experienced by a patient with a neurological disorder such as MS. An able bodied person would experience some discomfort in a warmer environment without air conditioning, but is unlikely to have the above-stated symptoms that would last for prolonged periods of time as opposed to a patient with MS. As mentioned previously, a patient with MS would likely experience adverse effects (in a situation such as being exposed to warmer climate without air conditioning facilities) that would be more severe and last for a longer period of time, although unlikely to experience permanent deficits related to these adverse conditions.
[30] Transcript, page 9; Exhibit 2, Applicant’s statement dated 22 November 2018, [59]-[65]; Exhibit 3, Applicant’s Statutory Declaration dated 5 March 2019 [37]-[38].
[31] Exhibit 8, Dr Mike Boggild’s Letter dated 30 July 2018.
[32] Exhibit 22, Medico-legal report for Mr Ian McKenzie, pages 8-9.
Drs Jay and Chaseling disagreed with Dr Boggild on the question of the impact of cooling on the functional ability of persons with Multiple Sclerosis, or their capacity to undertake activities of daily living. Evidence of Dr Boggild, Mr McKenzie’s expert witness, was put to Drs Jay and Chaseling as experts for Mr McKenzie and the Respondent as follows:[33]
15. Dr Boggild in his report dated 30 July 2018 stated:
‘the provision of an ambient atmospheric temperature has no impact on the underlying disease or its long-term natural history’ and There is, I’m afraid, minimal scientific literature to allow any specific comment on whether cooling devices of any form improve patients’ functional abilities or activities of daily living. Nevertheless, individual patients with MS clearly describe being able to participate and engage both socially and, in their ADLs, better in more ambient temperatures dependent obviously on factors such as availability of air-conditioning or indeed time of year.’
What is your opinion in relation to these statements? In your answer, please comment on what you consider would be the likely response of a person who does not have MS in the same situation.
We agree with the first part of this statement. High ambient temperatures do not impact the underlying disease or the natural history of MS. However, we disagree that there is minimal scientific literature of whether cooling per se (if sufficient) improves functional ability [24, 37-39]. In fact, there is a growing body of data that supports the use of cooling to improve daily functioning, increase exercise tolerance and reduce the severity of symptoms. With that said, many of the moderate cooling strategies advocated by MS organisations are not necessarily supported by scientific studies. It is also well documented that while an ambient temperature reduces the function and temporarily worsens symptoms of a person with MS, subsequent decreases in ambient temperatures very quickly reverse these effects and restores full functionality [21].
[33] Exhibit 7, Report of Mike Boggild dated 29 September 2019, pages 10-11.
I conclude that the science is emerging in this field, and that even amongst experts there are different views. I accept that every individual with Multiple Sclerosis is impacted differently. I also accept that Mr McKenzie’s symptoms worsen in warmer temperatures, that he feels the effect of moving between rooms of differing temperatures further worsens his symptoms, and that he has fewer symptoms of Multiple Sclerosis in an environment with a constant temperature.
The Respondent, in post hearing submissions, and with respect to subparagraph 34(1)(c) of the NDIS Act, noted that the temperatures taken by Dr Chaseling for the purposes of preparing her report with Dr Jay were recorded in summer. Those temperatures are set out in Sections J1 andJ2 attached to the report which is Exhibit 22. The relevant ambient temperatures are extracted and set out in Attachment A to this Decision.
Attached as Appendix 3 to Dr Grant’s report is a report from the Bureau of Meteorology entitled ‘Mackay Climate’.[34] It includes “maximum daytime temperatures are typically 29 – 30° during the summer/wet months and 21 – 25° during the winter/dry months. Minimum overnight temperatures are typically around 23° during the summer/wet months and 13 – 14° during the winter/dry months”.
[34] Exhibit 6, Report of Dr Nicole Grant dated 28 June 2018.
Dr Boggild, in cross examination, agreed “that some of the research shows that persons (with Multiple Sclerosis) in Australia suffer from heat sensitivity at much higher rates than people in an area of Europe, say Sweden”.[35] Drs Jay and Chaseling state in their report (unedited):[36]
The applicant currently lives in North Queensland where the climate is warm and humid. It is evident that the applicant has adopted many measures to keep the ‘heat’ out of the house, such as tinted windows and the use of shade sails around the exterior of the house (Appendix 1, Section I). However, without air-conditioning, these structures do not prevent his house from warming up beyond a critical point for this symptoms during the day. Indeed, upon visiting the Applicant, it was evident that most rooms in his house were only ~1°C cooler than the outside air temperature when the air-conditioning was turned off (Appendix 1, Section I). However, even with the Applicant’s current air-conditioning turned on, the interior of the house will only cool down to ~27°C, which is ~4°C above the upper temperature threshold calculated in response Question 2 (Appendix 1, Section J).
[35] Transcript, page 43.
[36] Exhibit 9, Report of Dr Jay and Dr Chaseling titled ‘National Disabiity Insurance Agency: Air conditioning for people with multiple sclerosis – Is it reasonable and necessary support under the NDIS?’, page 12.
As to the question of whether “the support will assist the participant to undertake activities so as to facilitate the participant’s social and economic participation” (emphasis added), Counsel for Mr McKenzie submitted that social and economic participation cannot in all cases extend to economic participation. In Mr McKenzie’s case, he has been unable to work due to the impact of Multiple Sclerosis upon him since 2013 and there is no suggestion he is undertaking any other activities of economic participation, save with respect to online banking. However, Counsel for Mr McKenzie referred the Tribunal to the decision of Pavilupillai v National Disability Insurance Agency[37], and in particular the statements of Deputy President Forgie set out below, with which I respectfully agree:[38]
Section 34(1)(b) is about a support that will assist a participant to undertake activities that have a certain outcome. That outcome is the facilitation of the participant’s social and economic participation. The word “facilitation” means “... to make something easy or easier to do or achieve ...” The nature of the activities that may facilitate that participation will depend on the participant’s particular circumstances. What may be regarded as social or economic participation will be similarly dependent on particular circumstances. The word “social” connotes activities that brings a person together with others in the community and as part of the community. They may be activities that are regarded as those interactions with other people that are directed to maintaining health or domestic arrangements and extend through to the myriad of activities, be they sporting or recreational, organised or not organised and so on, in which a person may engage as a member of the community. The reference to economic participation might be thought to be limited to activities that facilitate a person’s employment. That is the word used in s 4(11)(c) but the use of the word “economic” in s 34(1)(b) would suggest that the activities to facilitate a participant’s economic participation might extend beyond employment to other activities that might be directed to the generation of an income be it in, for example, business or industry. That is not a matter that it is relevant to decide in this case.
[37] [2018] AATA 4641.
[38] Ibid [71].
Mr McKenzie gave evidence that he has a strict and disciplined routine to balance optimising rest and physical therapy, and to maintain his physical and mental well-being in undertaking light housework to contribute to the household.[39] The goals in Mr McKenzie’s plan are as set out in paragraph 23 of these Reasons.
[39] Exhibit 2, Applicant’s Statement dated 22 November 2018 [21]-[22], [30].
Dr Grant’s report also refers to Mr McKenzie’s attitude towards his home and being at home. She states (unedited):[40]
Mr McKenzie reports that his hobbies include using his home gym and exercising. He has apparently always enjoyed exercise; however, he notes that the purpose of exercise now is therapeutic moreso than developing his physique. He is currently completing a home-based program designed for improving/maintaining his strength, endurance, balance and neurological function. The program was prescribed and is monitored by an exercise physiologist and neuro-physiotherapist.
Mr McKenzie says that he is very disciplined with regards to maintaining his health and exercise. He tends to stick to his routine quite strictly between Monday and Friday. He reported that he requires his routine to be rigid to maintain his health.
In his leisure time Mr McKenzie will meet friends for coffee, and will go and see “shows”. He describes himself as a “bit of a hermit by nature” and always has been. He feels that his lack of interest in spending time out of the house is typical of his personality and he finds enjoyment in home-based activities.
Mr McKenzie enjoys having the radio on and listening to different music. He enjoys reading about health and nutrition and researching MS-related topics. He meets his MS support group once per month.
Mr McKenzie states “the fact that I have an incurable, debilitating disease that has taken away my ability to work and to some degree rendered me at times house bound, does not mean that I need to start participating in community type activities to fulfil myself. I am perfectly content with being at home and with my own company. I believe I have worked hard to achieve a fine balance in my life that works optimally for me and I do notice that when I deviate from my routine, namely on weekends to either socialise or shop it is extremely energy consuming and can be stressful”.
[40] Exhibit 6, Report of Dr Nicole Grant dated 28 June 2017, pages 24–25.
I consider that Mr McKenzie’s social participation occurs at least substantially within his domestic life whilst at home including undertaking light housework, the activities of daily living and exercise. Given the role that air-conditioning plays in obviating the worsening of Mr McKenzie’s symptoms whilst undertaking those activities, I consider it to be a support that will assist Mr McKenzie to undertake activities to facilitate his social participation. Accordingly, I consider that the requirements of subparagraph 34(1)(b) of the NDIS Act are met.
Subparagraph 34(1)(c): does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support?
The relevant rules are contained in Part 3 of the Rules, which are set out at paragraph 12 of these Reasons. The Respondent’s submission is that air-conditioning should only be provided to the extent needed to prevent an exacerbation of Mr McKenzie’s symptoms and that that is limited to the areas in which he exercises for a period of time. Beyond that, the Respondent contends that Mr McKenzie’s symptoms can be managed by limiting the time he spends in hotter parts of the house and taking other steps such as drinking cool water. I note that Dr Grant did not accept that the alternative measures suggested to keep cool, including staying in cooler rooms and drinking water, were entirely practical.[41] The Respondent also submitted that the Tribunal should rely on the evidence of Dr Chaseling[42] that at rest “most temperatures under 30°C are ‘compensable’”.
[41] Transcript, page 33.
[42] Transcript, page 70, line 10, Dr Chaseling’s Cross Examination: ‘Yes, this is correct. Anything in the 20’s – yes, it’s likely that that would be a very compensable environment.’
Closing submissions on behalf of Mr McKenzie focused on the evidence of Dr Seneviratne that:[43]
The most appropriate and safest temperature range for patients with neurological diseases (which includes MS) varies depending on the individual. In my experience, most patients with neurological diseases would have difficulty in warmer climates when the temperature is in the high range. In my opinion, it would be safe to assume that the most appropriate and safest ambient temperature for someone with Mr McKenzie’s diagnosis would range between 22 degrees to 28 degrees centigrade. However, as mentioned previously, depending on the individual, the most appropriate and safest ambient temperatures could fluctuate.
[43] Exhibit 22, Medico-Legal Report of Dr Senevirantne dated 31 August 2018, page 5.
Counsel for Mr McKenzie also referred the Tribunal to the report prepared by Drs Jay and Chaseling and in particular their response to the question posed at “2. What is the most appropriate and safest ambient temperature range for the Applicant? How does this differ to what you expect for a person who does not have MS?”, as follows (unedited):
Detailed below is the output of a simple human heat balance calculation that estimates the upper temperature limit required to prevent a 0.5°C rise in core temperature, which is known to elicit MS symptom worsening. The upper limit for this rise in core temperature is theoretically similar for a person who does not have MS. However, crucially, nothing adverse happens when core temperature rises by 0.5°C in a person without MS, whereas rapid symptom worsening occurs on a person has MS.
For a 75 kg, 1.8 m male wearing light summer clothing (shorts and T-shirt; Appendix 1 Section I) with a slightly elevated metabolic rate (150 W) from rest (very light household activities) with a wind speed of 0.2 m/s and a relative humidity of 45%, a rise in core temperature of 0.5°C within 3 hours would occur above an air temperature of 22.4°C.[44]
[44] Exhibit 9, Report of Dr Jay and Dr Chaseling titled ‘National Disabiity Insurance Agency: Air conditioning for people with multiple sclerosis – Is it reasonable and necessary support under the NDIS?’, page 2.
The submissions of Counsel for Mr McKenzie included that the conclusions reached by Drs Jay and Chaseling that “even with the Applicant’s current air-conditioning turned on, the interior of the house will only cool down to ~27°C, which is ~4°C above the upper temperature threshold calculated in response [sic] Question 2 (Appendix 1, Section J)” and “overall, we feel that ducted air-conditioning within the most commonly used rooms within the house would greatly benefit the Applicant”.[45]
[45] Exhibit 9, Report of Dr Jay and Dr Chaseling titled ‘National Disability Insurance Agency: Air conditioning for people with multiple sclerosis – Is it reasonable and necessary support under the NDIS?’, page 12.
Mr McKenzie’s evidence about the impact upon him in moving between rooms in his house with the current air-conditioning system, is set out in Mr McKenzie’s statement of 22 November 2018 at paragraphs 62 and 63 as follows (unedited):
[62]I am susceptible to heat and changes in temperature within the home. Moving around the house carrying out daily routine responsibilities are impacted as I feel variances in temperature from room to room. This creates what I call the ripple effect (the more frequent the ripples the greater the impact) and increases fatigue, which in turn leads to a worsening of my symptoms.
[63]Exposure to heat and varying degrees thereof impact me. A small change in temperature within the home or a shopping centre whilst not critical, has a accumulative effect e.g. shopping, move from air conditioning to the car to undercover carpark then into air conditioned shops impacts upon me and has accumulative effect leading to the symptoms described in paragraph 11 of this statement.
The Tribunal heard expert evidence about the extent to which Mr McKenzie’s proposition outlined at paragraph 53 of these reasons is supported, and accepts that the expert evidence at its highest, is that the fatigue symptoms could last for hours.[46] However, notwithstanding ongoing research into Multiple Sclerosis and the evolving science that is emerging, what is agreed amongst the experts is that Multiple Sclerosis affects different people in different ways and that air-conditioning is a widely accepted way of managing the environment of those with Multiple Sclerosis.
[46] Transcript, page 60, lines 18 to 22.
Insofar as the Respondent relies on the contention that temperatures below 30°C are compensable at rest, and Mr McKenzie relies on the evidence of Drs Jay and Chaseling referred to in paragraph 31 of these Reasons, I note that the evidence was ultimately unclear as to precisely whether Mr McKenzie’s light housework was exactly the same as that which is envisaged by Drs Jay and Chaseling in their report, in terms of whether it encompassed the same activities and/or the same frequency of those activities.[47] Mr McKenzie’s evidence is that he moves around his house using most of the rooms, and undertakes light housework including spot cleaning, laundry and food preparation.[48] The further evidence is that many of the measures which are said to assist in managing thermoregulation in people impacted by Multiple Sclerosis have already been adopted by Mr McKenzie.[49] For completeness, there was also evidence about whether the existing air-conditioning system could be repaired and upgraded and whether there are other forms of air-conditioning which would be cheaper to install, for example box systems, split systems and cooling only systems. I accept that, for various reasons as canvassed by Mr O’Brien in his statutory declaration of 20 March 2019, that none of those options are suitable.[50]
[47] Transcript, page 57.
[48] Exhibit 2, Applicant’s Statement dated 22 November 2018 [22].
[49] Exhibit 2, Applicant’s Statement dated 22 November 2018 [73].
[50] Exhibit 2, Applicant’s Statement dated 22 November 2018 [71]-[83]; Exhibit 18, Statutory Declaration of Mr Dale O’Brien with attachments dated 20 March 2019.
It would therefore appear that there are no comparable supports which would achieve the same outcome for Mr McKenzie at a substantially lower cost. Based on the evidence, I find that Mr McKenzie intends to continue to live in his current house,[51] and that the proposed air-conditioning system will have a life, on average, of 12 years, such that the support will substantially improve the life outcomes for, and be of long-term benefit for, Mr McKenzie. In my view, air-conditioning will be of long-term benefit to Mr McKenzie as it will minimise temperature fluctuations in his home environment and therefore reduce the severity of symptoms caused by temperature fluctuations. There is no evidence that replacing the air-conditioning system in Mr McKenzie’s home is likely to reduce the cost of funding of supports for him in the future. There is evidence from Mr O’Brien that leasing is unlikely to be an option with respect to air-conditioning.[52] There was no evidence before the Tribunal as to whether there are expected changes to technology or Mr McKenzie’s circumstances such as to render it inappropriate to fund air-conditioning. There was also no evidence before me as to whether the cost of the support is comparable to the cost of supports of the same kind provided in the area in which Mr McKenzie resides. Finally, Mr McKenzie’s evidence is that replacing the air-conditioning system within his home will increase his independence,[53] although there is no evidence before me that as a result of replacing the air-conditioning system in Mr McKenzie’s home his needs for other supports will be reduced in the long-term.
[51] Exhibit 2, Applicant’s Statement dated 22 November 2018 [5]; Exhibit 3, Applicant’s Statutory Declaration dated 5 March 2019.
[52] Exhibit 18, Statutory Declaration of Mr Dale O’Brien with attachments dated 20 March 2019 [48]-[51].
[53] Exhibit 2, Applicant’s Statement dated 22 November 2018 [75].
Weighing all of the evidence, I find that replacing the air-conditioning system throughout Mr McKenzie’s house will enable him to undertake activities of daily living and light housework in all of the rooms in his house, which are benefits that go directly to his independence and to his sense of self-worth, in terms of his ability to contribute to the household. The alternative, proposed by the Respondent, namely that air-conditioning be provided in a room of Mr McKenzie’s choice, and a bathroom, would not achieve the same benefits with respect to the activities of daily living or undertaking light housework, nor facilitate the use of all of his house by Mr McKenzie. Accordingly, I find that the support represents value for money in that the costs are reasonable, relative to both the benefits achieved and the cost of alternative support.
Subparagraph 34(1)(d): will the support be, or likely to be, effective and beneficial having regard to current good practice?
The Respondent accepts that subparagraph 34(1)(d) of the NDIS Act is met. The evidence overwhelmingly supports that replacing the air-conditioning system in Mr McKenzie’s home will be, or is likely to be, effective and beneficial for him, having regard to current good practice. Accordingly I find that subparagraph 34(1)(d) is met.
Subparagraph 34(1)(e): does the funding take account of what it is reasonable to expect families, carers, informal networks and the community to provide?
The relevant rule is 3.4(b) which states:
Reasonable family, carer and other support
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
…
(b)for other participants:
(i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
A. the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
B. the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
C. the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
The Respondent, in its submission, agrees that subparagraph 34(1)(e) of the NDIS Act is not addressed to “contributions” or funding of supports. The Respondent acknowledges that it is not appropriate that Mr McKenzie’s wife should pay for something which is “otherwise, a reasonable and necessary support”. Nor is there a suggestion of it being reasonable to expect informal networks or community to provide the support. However, the Respondent’s position, in this case, is that replacement of the air-conditioning system is unrelated to Mr McKenzie’s disability, that air-conditioning is something that he and his wife have always had and arises as a result of ownership of their home as an everyday household item in Queensland, which requires routine upgrades and maintenance, and that it is therefore reasonable that it be paid for by Mr McKenzie’s family. I note that the Respondent in its closing submissions accepts that it is reasonable and necessary for Mr McKenzie to have air-conditioning provided pursuant to the National Disability Insurance Scheme in one room and one bathroom.
According to Mr McKenzie, his main carer is his wife and they have no children. Subparagraph 34(1)(e) of the NDIS Act makes no mention of Mr McKenzie making a provision with respect to the support. The question in this case therefore is whether subparagraph 34(1)(e) of the NDIS Act is directed at asking the decision-maker to consider whether the funding or provision of the support takes account of what it is reasonable to expect Mr McKenzie’s family to provide. I respectfully adopt the reasoning of Mortimer J in McGarrigle:[54]
[95]The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded. There are no references in these provisions to “contributions” from the participant, the participants’ family or carers. I have explained, in my opinion, how s 34(1)(e) is intended to operate: that is, it is intended to operate at the stage of the CEO (or the delegate or Tribunal) forming a state of satisfaction about what are “reasonable and necessary supports”. It is not intended to ask the decision-maker to assess whether any of the persons in para (e) are capable, or willing, to make a financial contribution towards the proposed support. That is made especially clear by the inclusion in the list in para (e) of the “the community”. Parliament did not intend the decision-maker to ask, in forming a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan.On that basis I conclude that the wording of rule 3.4(b) does not contemplate payment for the support by Mr McKenzie’s wife.
[54] McGarrigle v National Disability Insurance Agency [2017] FCA 308 [95].
Subparagraph 34(1)(f): is the support appropriately funded through the NDIS?
There is nothing before me to suggest that the support is more appropriately funded or provided by other than the NDIS. In this case, if the support is reasonably necessary, the NDIS is the proper funder of the support.
Subparagraph 34(2): the Rules
Part 5 of the Rules includes general criteria for supports, and specifies which supports will not be funded or provided. Relevantly, rules 5.1 and 5.2 provide as follows:
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Mortimer J in McGarrigle, with respect to the Rules, states as follows:[55]
[43] The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (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.
[55] McGarrigle v National Disability Insurance Agency [2017] FCA 308 [43].
In relation to the Rules, Counsel for Mr McKenzie highlighted rules 5.1(d) and 5.2(a) and (b) as being particularly relevant. The Respondent drew my attention to the Operational Guidelines with respect to Planning at 10.1 and in particular:
the support is not related to the participant’s disability, for example it is expected the NDIA will generally not fund household items not related to a participant’s functional limitations and would normally be purchased by any person, i.e. general household furniture or appliances.
I note in this regard that the Operational Guidelines duplicate the Rules. The Respondent submitted that that is the nature of the expense sought to be funded in this case, as replacing an out of date air-conditioning system is a cost that anyone in Mr McKenzie’s position would incur. It is the Respondent’s submission that in this case replacement of air-conditioning is analogous with the replacement of a fridge or similar appliance or furniture, and that is particularly the case given Mr McKenzie’s house was originally constructed with an air-conditioning system. The Respondent goes on to submit that replacement of the air-conditioning system in Mr McKenzie’s home is of the nature of a repair, does not relate to Mr McKenzie’s disability and therefore is not a necessary and reasonable support pursuant to rule 5.1(b) of the Rules, and is, in any event, a day-to-day cost of living and therefore not covered pursuant to rule 5.1(d) of the Rules.
With respect to rule 5.2 of the Rules, Counsel for Mr McKenzie referred me to the Explanatory Statement issued by the authority of the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform. In this context, the Explanatory Statement states that certain day-to-day living costs may be funded as a reasonable and necessary funded support if:
…
The cost is ancillary to another support that is funded or provided under a participant’s plan and which the participant would not otherwise incur;
for example: DisabilityCare Australia[56] has approved as reasonable and necessary for a participant who has Multiple Sclerosis the installation of an air conditioner, DisabilityCare Australia may fund the additional cost of electricity incurred in running that air-conditioner.
[56] For a time in 2013 the NDIS was named ‘DisabilityCare Australia’. After the Federal election on 7 September 2013, the incoming Government changed the name back to the National Disability Insurance Scheme. The agency responsible for delivering the scheme is known as the National Disability Insurance Agency. >
While the Explanatory Statement deals specifically with the additional cost of electricity incurred in running an air-conditioner, it also clearly contemplates the installation of an air-conditioner as reasonable and necessary for participants impacted by Multiple Sclerosis. In my view it is therefore difficult to accept the Respondent’s argument to the contrary. The Respondent made submissions regarding common and well accepted principles of statutory interpretation under the heading of “Purposive approach”. Those principles only support such a conclusion. I have also had regard to the statement of the High Court in Sovar v Henry Lane Pty Ltd (1967)[57] that:
The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation… It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in light of all of its surrounding circumstances.
[57] Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, 405 per Kitto J, approved in: Singh v Commonwealth (2004) 222 CLR 32, 335-6 [19] Gleeson CJ; H v Minister for Immigration and Citizenship (2010) 188 FCR 393, 407 [51].
As to the argument posed by the Respondent that the replacement of air-conditioning is a “day-to-day living cost”, I consider the examples given in rule 5.1(d) of rent, groceries and utility fees, suggest regular and ongoing outgoings of the type incurred by all householders. I do not therefore consider the replacement of an air-conditioning system, which has the nature of a one-off, or at most, several times in a lifetime, cost to be in the same category. To the extent to which air-conditioning is, as submitted by the Respondent in their written submissions, “an ordinary cost of Mr McKenzie and his wife of owning the home” and “ubiquitous in modern houses in Queensland, especially Far North Queensland”, I do not accept that it flows from that that air-conditioning is a day-to-day living cost. In this regard I respectfully agree with the reasoning of Deputy President Constance in Milburn v National Disability Insurance Agency[58] when considering gym membership. In that case the Deputy President said “In my view, it is in the nature of discretionary spending for those who do not suffer from a disability. On the basis of Ms Curdie-Evans’ evidence, I am satisfied that, in Ms Milburn’s case, it is attributable to her support needs.” Likewise, in this case, I am of the view that air-conditioning ‘is in the nature of discretionary spending for those who do not suffer from a disability’. However, in Mr McKenzie’s case I am satisfied that the replacement of the air-conditioning system in his home relates to Mr McKenzie’s need for support.
[58] [2018] AATA 4928 [73].
The Respondent, in its closing submissions, also noted that Mr and Mrs McKenzie had always lived in houses with air-conditioning and stated that “it is the applicant’s position that the system needs to be wholly replaced and upgraded due to age”, and that “the replacement of the air-conditioning system” is “an ordinary cost of Mr McKenzie and his wife of owning the home”. The Respondent further submits that the need for replacement of Mr McKenzie’s air-conditioning system arises, not as a result of his disability, other than with respect to “the installation of an additional register and a bathroom”, but as “an ordinary cost of living”.
Whilst there is evidence of Australian Bureau of Statistics data on air-conditioning (undated)[59] before me regarding the number of dwellings in Queensland with air-conditioning, I do not agree that the logical conclusion which follows from the matters set out in paragraph 70 of these Reasons is that Mr (and Mrs) McKenzie should or would have replaced the air-conditioning themselves as an ordinary cost of living. It is impossible to predict what Mr (and Mrs) McKenzie would have done in the event that Mr McKenzie had not been diagnosed with Multiple Sclerosis. No evidence was before me in that regard. What was before me was Mr McKenzie’s evidence that he retired from work in 2013 due to the impact of Multiple Sclerosis on him.[60] As a result Mr McKenzie spends more time at home during the day which led to him realising that the air-conditioning was not meeting his needs, given the impact of Multiple Sclerosis upon him.[61] Accordingly, and consistent with my conclusions in paragraph 69 of these Reasons, I consider that the necessity to replace the air-conditioning system in Mr McKenzie’s home is directly related to, and arises from, the impact of Multiple Sclerosis upon him rather than it being an “ordinary cost of living”.
[59] Exhibit 1, T-Documents, T9, page 88.
[60] Exhibit 2, Applicant’s Statement dated 22 November 2018 [3].
[61] Exhibit 3, Applicant’s Statutory Declaration dated 5 March 2019 [30] – [34].
Operational Guidelines
With respect to the Operational Guidelines, Counsel for Mr McKenzie suggested that the guideline referred to above was quoted from the Assistive Technology chapter of the Operational Guidelines and that the more appropriate chapter to consider is that relating to Home Modifications. I accept that the words in the Operational Guideline “that are not related to the participant’s functional limitations”, appear in both the Planning chapter and the Assistive Technology chapter, but consider little turns on this as in any case the passage referred to from the Operational Guidelines is consistent with the Rules, which must be considered as a result of their incorporation by way of legislative instrument. As to which Operational Guidelines apply in this case, in my view it is those which apply to Home Modifications.
Counsel for Mr McKenzie pointed out, in oral submissions, by reference to Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (Drake (No 2)[62], that the Operational Guidelines, as policy, ought not be taken into account to the extent that they are inconsistent with the Rules or the NDIS Act. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency in decision making under the NDIS Act, considered that this policy should be applied.
[62] [1979] AATA 179; 2 ALD 634.
Counsel for the Respondent referred me to the Operational Guidelines as they relate to Home Modifications which will not be funded, and in particular to the extract as follows:
ongoing repairs and maintenance to non-specialised structures, fixtures or fittings in the home even when these form part of modification work, so for instance repainting a modified bathroom or maintaining plumbing.
To the extent that they are not inconsistent with the Rules or the NDIS Act, the Operational Guidelines need to be considered in their entirety. The Home Modification chapter of the Operational Guidelines include a number of guidelines which are relevant as follows:
5. Home modifications
Home modifications are changes to the structure, layout or fittings of the participant’s home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability.
It is expected that a home modification would only be considered where the home to be modified is the participant’s primary residence and the participant intends to remain living at the residence. If the property is a rental property, then the written agreement of the owner of the property will be required before any modifications take place.
There are a number of laws and regulatory frameworks, for example Building Codes and Australian Standards which regulate home modifications. The NDIA is unable to fund home modifications which, if provided, would be contrary to a law of the Commonwealth, state or territory (see which supports will not be funded or provided under the NDIS.
Therefore, the NDIA must be satisfied that there are no laws, regulations or other planning restrictions which would prevent the home modifications being undertaken.
In addition, the NDIA must also be satisfied, amongst other matters, that the home modification being considered 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 (section 34(1)(c)).
When determining whether home modifications represent value for money, the NDIA will specifically consider:
·whether the proposed home modification represents value for money when compared to the cost of other lower cost alternatives, for example less costly home modifications which reasonably achieve the same intended benefits or outcomes, or assistive technology;
·whether the proposed home modification is cost effective when compared to the cost of other supports such as assistance with the cost of moving to accessible premises; and
·the expected length of tenure for participants and whether this is commensurate to the cost of the home modifications.
The NDIA must also be satisfied that the provision of the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (section 34(1)(d)).
Therefore, before including home modifications in a participant’s plan, the NDIA will also consider whether the home is suitable to be modified, including having consideration to:
·any structural constraints such as size, surrounding terrain, or the condition of the building; and
·whether the home owner, and where applicable, any body-corporate, agrees and gives their permission for modifications to be made.
When complex and extensive home modifications are being considered, the NDIA may also fund oversight by a project manager or independent building certifier to ensure compliance of the modification and a qualified and experienced Occupational Therapist to certify the effectiveness of the modification to meet the participant’s goals and likely future needs.
Generally, the NDIA will fund reasonable and necessary home modifications:
·to the participant’s primary residence where, due to the impact of the participant’s disability, the participant or their carers are unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings;
·when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements; and
·where a suitably qualified Occupational Therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.
Turning to the extract of the Operational Guidelines with respect to what reasonable and necessary home modifications will generally be funded relating to “modifications to the participant’s primary residence where, due to the impact of the participant’s disability, the participant or the carers are unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings”, Mr McKenzie providing evidence in his statement dated 22 November 2019 as follows:[63]
Short of staying in one room all day where the temperature is constant, without ducted air-conditioning I would be restricted and unable to move between different rooms and maintain my independence and undertake activities of daily living and feel I am contributing to my own household.
[63] Exhibit 2, Applicant’s Statement dated 22 November 2018 [75].
The Operational Guidelines also contemplate generally that the NDIA will fund reasonable and necessary home modifications “when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements”. In this regard, Mr McKenzie providing evidence in his statement dated 22 November 2019 as follows (unedited):[64]
[64] Exhibit 2, Applicant’s Statement dated 22 November 2018 [71]-[78].
71My air-conditioning system is no longer working well enough to enable me to properly regulate my body temperature in the extremes of winter and summer.
72The system is undersized for its purpose (14Kw vs 18-22 kw), hence ineffective at cooling the whole house uniformly. The system operates on refrigerant gas. I have been informed by JM Air Conditioning that refrigerant gas is being phased out and is either is no longer available or extremely expensive. I have also been informed that retro-fitting the existing system is cost prohibitive and impractical. I have also been informed that spare parts for the existing system are no longer available.
73I have undertaken the following low-cost steps to try and overcome the inefficiency of my air conditioning system and prevent myself from overheating by:
·installing additional insulation to my ceiling in addition to existing under roof insulation,
·tinting north facing windows,
·installing window and shade covering to 70% of the home
·installing draft suppressors to all external doors,
·installing more powerful ceiling fans,
·purchasing floor tower fans for living areas and bedroom,
·purchasing and using cooling towels/scarfs
·drinking cooled water.
74Because of MS I need to be in an environment where there is a constant temperature. If there is only one temperature change within the home per day, my symptoms generally may take half an hour or longer to rectify. If there are more frequent changes the symptoms are worse and the time to recover can extend over a couple of days.
75Short of staying in one room all day where the temperature is constant, without ducted air conditioning I would be restricted and unable to move between different rooms and maintain my independence and undertake activities of daily living and feel I am contributing to my own household.
76Despite these efforts on my part my current air conditioning system is failing to provide me with consistent temperature and therefore needs replacement.
77My current system also does not provide a heating function. I am affected by temperature fluctuations both upwards and downwards.
78Despite living in North Queensland, my MS means that in winter I currently need to wear multiple layers of clothing to keep warm.
The Operational Guidelines also state that “Generally the NDIA will fund reasonable and necessary home modifications… where a suitably qualified occupational therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.” In this regard, Dr Grant has provided a report which considers Mr McKenzie’s situation and answers a number of questions posed by the Respondent. That report considers a wide range of alternatives, which in my view, are the appropriate possible alternatives to consider, in the circumstances, and concludes as follows:[65]
It is my opinion that funding of a replacement air conditioning system is solely and directly related to his disability. The frequency and severity of his symptoms are clearly worse when he is unable to manage his core internal body temperature, as evidenced using examples within this report. While Mr McKenzie cannot control the temperature outside of his home, the majority of activities considered by him to be meaningful and relevant to his goals and aspirations are conducted within the home. Funding for the replacement of a suitable air conditioning system is therefore considered to be integrally linked to the care and support he requires to participate in activities of daily living at least within the home environment.
[65] Exhibit 6, Report of Dr Nicole Grant dated 28 June 2017, page 13.
Mr McKenzie has also provided evidence regarding his “expected length of tenure” within his existing house. In his statutory declaration of 5 March 2019, he explains that this house has already been modified, for another purpose, to accommodate disability, including for example by having wider hallways and wider shower openings. He expressly states:[66]
I do not intend to move, given the features already built into the house. I envisage that the only further features needed will be grab rails in the bathroom and toilet and some small ramps to enable wheelchair access over doorsteps at various entry points to the house.
[66] Exhibit 3, Applicant’s Statutory Declaration dated 5 March 2019 [19].
Turning to those things “The NDIS will generally not fund” and specifically “ongoing repairs and maintenance to nonspecialised structures, fixtures or fittings of the home even when these form part of the modification work” as referred to me by the Respondent, I consider that on a plain English construction, “replacement” of an air-conditioning system (which is the support sought to be funded here) is not the same as ongoing repairs and maintenance. In this regard, the Macquarie Dictionary defines ‘replacement’ as ‘the act of replacing’. Taking into consideration all of the matters canvassed above, I do not consider the Operational Guidelines to which reference has been made, to be inconsistent with the Rules or the NDIS Act.
Other matters
For completeness, I mention subparagraph 3(3)(b) of the NDIS Act which requires regard to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme. In addition, subparagraph 4(17)(b) sets out:
17It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO 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.
There was no evidence before me and no submissions were made regarding the financial sustainability of the National Disability Insurance Scheme.
CONCLUSION
For the reasons set out above, I am satisfied that replacement of the ducted air-conditioning system in Mr McKenzie’s home meets the requirements of a reasonable and necessary support as defined in the NDIS Act.
DECISION
The decision under review is set aside.
The matter is remitted to the Respondent with the direction that the “statement of participant supports” in the plan dated 23 November 2017 is to include sufficient funding to enable the replacement of the ducted air-conditioning system in the Applicant’s home, as quoted by Mr Dale O’Brien, and the plan review date is to be fixed at 12 months from the date of this decision.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Meagher
......................[SGD]..........................................
Associate
Dated: 5 September 2019
Dates of hearing: 18, 19, 20 & 28 March 2019 Counsel for Applicant: Mr Phil Nolan Solicitors for Applicant: Legal Aid Queensland Disability Advocate for Applicant: Independent Advocacy NQ Advocate for the Respondent: Ms Elizabeth Ruddle Solicitors for the Respondent: National Disability Insurance Agency Attachment A
Section J: Outdoor and Indoor Ambient Temperature and Humidity
1. What Is the temperature indoors without air-conditioning (11:30am)
Temperature was measured in all rooms throughout the house by G. Chaseling (7/11/18; 11:30am) using a Kestrel 5400 heat stress meter (Kestrel Australia, Victoria, Melbourne).
Kitchen
WBGT: 23.5°C
Air speed: 0.4 m/s
Humidity: 57.2%
Ambient: 30.1°C
Radiant: 30.2 CLiving room
WBGT: 24.3°C
Air speed: 0 m/s
Humidity: 58.2%
Ambient: 30.1°C
Radiant: 30.0°CBedroom
WBGT: 24.2°C
Air speed: 0 m/s
Humidity: 59.8%
Ambient: 29.7°C
Radiant: 29.5°CEn suite
Laundry
Gym room 1
En suite Laundry Gym room 1 WBGT: 24.4°C WBGT: 24.2°C WBGT: 23.8°C Air speed: 0 m/s Air speed: 0 m/s Air speed: 0 m/s Humidity: 59.9% Humidity: 57.1% Humidity: 59.9% Ambient: 29.7°C Ambient: 30.3°C Ambient: 29.5°C Radiant: 29.3°C
Radiant: 30.4°C
Radiant: 29.5°C
Dining Room
Gym room 2
Study
Dining Room Gym room 2 Study WBGT: 23.4°C WBGT: 24.9°C WBGT: 24.2°C Air speed: 0.5 m/s Air speed: 0 m/s Air speed :0.4-0.6 m/s Humidity: 56.4% Humidity: 57.5% Humidity: 59.6% Ambient: 30.4°C Ambient: 30.1°C Ambient: 29.8°C Radiant: 30.2°C
Radiant: 29.0°C
Radiant: 29.9°C
Outdoors (shade)
Outdoors (sun)
Hallway
WBGT: 24.6°C WBGT: 26.7°C WBGT: 24.1°C Air speed: 0-0.5 m/s Air speed: 0.7 — 2.2 m/s Air speed: 0 m/s Humidity: 55.4% Humidity: 57.0% Humidity: 59.5% Ambient: 31.1°C Ambient: 31.4°C Ambient: 29.7°C Radiant: 31.8°C
Radiant: 43.2°C
Radiant: 29.3°C
Bathroom (used when exercising)
Spare room (used when the cleaner is there)
WBGT: 24.2 °C
WBGT: 24.6°C
Air speed: 0 m/s
Air speed: 0 m/s
Humidity: 59.1%
Humidity: 59.9%
Ambient: 29.9°C
Ambient: 29.8°C
Radiant: 29.9°C
Radiant: 29.7°C
2. What is the temperature indoors with air-conditioning (2:30pm - after 2 hours of the air-conditioning being on)
Temperature was measured in all rooms throughout the house by G. Chaseling (7/11/18; 2:30pm) using a Kestrel 5400 heat stress meter (Kestrel Australia, Victoria, Melbourne).
Kitchen
WBGT: 19.6°C
Air speed: 0 m/s
Humidity: 49.9%
Ambient: 26.3°C
Radiant: 25.7°CLiving room
WBGT: 19.4°C
Air speed: 0 m/s
Humidity: 49.5%
Ambient: 26.4°C
Radiant: 26.3°CBedroom
WBGT: 19.9°C
Air speed: 0 m/s
Humidity: 50%
Ambient: 27.3°C
Radiant: 27.6°CEn suite
WBGT: 20.0°C
Air speed: 0 m/s
Humidity: 50.8%
Ambient: 27.3°C
Radiant: 27.1°CLaundry
WBGT: 20.0°C
Air speed:0 m/s
Humidity: 49.7%
Ambient: 26.8°C
Radiant: 27.0°CGym room 1
WBGT: 20.2°C
Air speed:0 m/s
Humidity: 47.2%
Ambient: 27.6°C
Radiant: 27.0°CDining room
WBGT: 19.6°C
Airspeed: 0 m/s
Radiant: 25.9°C
Ambient: 25.9°C
Humidity: 50.8°CStudy
WBGT: 20.7°C
Ambient: 26.7°C
Air speed: 0 m/s
Humidity: 47.9%
Radiant: 26.5°CBathroom (used when exercising)
WBGT: 20.4°C
Air speed: 0 m/s
Humidity: 46.7%
Ambient: 27.8°C
Radiant: 28°COutdoors (shade) WBGT: 24.6°C Air speed: 0-0.5 m/s Humidity: 55.4% Ambient: 31.1°C Radiant: 31.8°C
Outdoors (sun) WBGT: 26.7°C Air speed: 0.7 - 2.2 m/s Humidity: 57.0% Ambient: 31.4°C Radiant: 43.2°C
5
7
0