McKenzie and National Disability Insurance Agency

Case [2019] AATA 3275

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.

...............[SGD]................................
Senior Member F Meagher

Catchwords

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

  1. 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”).

  2. 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

  3. 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:

    …

    (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…

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AGLC
McKenzie and National Disability Insurance Agency [2019] AATA 3275
Case
[2019] AATA 3275
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr McKenzie for the National Disability Insurance Agency (NDIA) to fund the replacement of the air-conditioning system in his home. Mr McKenzie, who was diagnosed with Multiple Sclerosis in 2003, argued that the existing system was undersized, beyond its operational life, and that parts were no longer available, making it ineffective and prone to failure. The NDIA had refused to fund the replacement, deeming it a day-to-day living cost and not a reasonable and necessary support under the National Disability Insurance Scheme (NDIS) Act 2013. The Administrative Appeals Tribunal (AAT) was required to determine whether the replacement of the air-conditioning system constituted a reasonable and necessary support.

The Tribunal was tasked with considering whether the replacement of the air-conditioning system met the criteria for reasonable and necessary supports as defined by section 34 of the NDIS Act. This involved assessing whether the support represented value for money, was effective and beneficial, coordinated with other supports without replacing them, and was most appropriately funded by the NDIS rather than other systems. The Tribunal also had to consider the NDIA's Operational Guidelines, particularly those relating to home modifications and assistive technology, and whether the proposed support was a day-to-day living cost.

In its reasoning, the Tribunal found that the Explanatory Statement for the NDIS Act contemplated the installation of air-conditioning as a reasonable and necessary support for individuals with Multiple Sclerosis, particularly in relation to managing electricity costs. The Tribunal distinguished the replacement of an air-conditioning system from ordinary day-to-day living costs, such as rent or groceries, noting it was a significant, infrequent expense. The Tribunal accepted that the need for a functional air-conditioning system was directly related to Mr McKenzie's disability and his ability to manage his body temperature, maintain independence, and undertake daily living activities within his home. Furthermore, the Tribunal considered that the existing system's failure had a significant adverse impact on Mr McKenzie's living arrangements and his ability to manage his condition, and that a suitably qualified occupational therapist had recommended the replacement.

The Tribunal concluded that the replacement of the ducted air-conditioning system in Mr McKenzie's home met the requirements of a reasonable and necessary support under the NDIS Act. Consequently, the decision under review was set aside, and the matter was remitted to the NDIA with a direction to include sufficient funding in Mr McKenzie's plan for the replacement of the air-conditioning system, as quoted by an expert, and to set the plan review date at 12 months from the date of the decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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, 01/07/20156I 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”.…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.·15The exisiting system requires to be replaced and a new system installed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.d34 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.

Ratio Decidendi

Legal Principle Established

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 GuidelinesWith 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 modificationsHome 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 mattersFor 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]..........................................AssociateDated: 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 ASection J: Outdoor and Indoor Ambient Temperature and Humidity1. 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 C Living room WBGT: 24.3°C Air speed: 0 m/s Humidity: 58.2% Ambient: 30.1°C Radiant: 30.0°C Bedroom WBGT: 24.2°C Air speed: 0 m/s Humidity: 59.8% Ambient: 29.7°C Radiant: 29.5°C En 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°C Living room WBGT: 19.4°C Air speed: 0 m/s Humidity: 49.5% Ambient: 26.4°C Radiant: 26.3°C Bedroom WBGT: 19.9°C Air speed: 0 m/s Humidity: 50% Ambient: 27.3°C Radiant: 27.6°C En suite WBGT: 20.0°C Air speed: 0 m/s Humidity: 50.8% Ambient: 27.3°C Radiant: 27.1°C Laundry WBGT: 20.0°C Air speed:0 m/s Humidity: 49.7% Ambient: 26.8°C Radiant: 27.0°C Gym room 1 WBGT: 20.2°C Air speed:0 m/s Humidity: 47.2% Ambient: 27.6°C Radiant: 27.0°C Dining room WBGT: 19.6°C Airspeed: 0 m/s Radiant: 25.9°C Ambient: 25.9°C Humidity: 50.8°C Study WBGT: 20.7°C Ambient: 26.7°C Air speed: 0 m/s Humidity: 47.9% Radiant: 26.5°C Bathroom (used when exercising) WBGT: 20.4°C Air speed: 0 m/s Humidity: 46.7% Ambient: 27.8°C Radiant: 28°C Outdoors (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