Multiple Sclerosis and funding for air conditioning - McKenzie and NDIA

Key Points

• In McKenzie and NDIA [2019] AATA 3275 [opens in new window] the Tribunal determined that replacement of a home air conditioning system was a reasonable and necessary support for a person whose multiple sclerosis (MS) worsened in high temperatures or when the temperature changed.
• This is a useful decision because it emphasises that social and economic participation for the purposes of s 34 of the NDIS Act can still take place even in one's own home. 
• The decision also emphasises that whether something represents day-to-day spending that the NDIS will not cover, or a disability support that the NDIS will cover depends on the nature of the disability and its effects on the person. What is a discretionary item for a person without a disability may not be a discretionary item for a person with disability.

Facts

Mr McKenzie lives in far north Queensland. He has MS. The symptoms of his conditions worsen when his core body temperature rises and when he is exposed to changes in temperature.

Mr McKenzie sought funding under the NDIS for replacement of the air conditioning system in his home. The existing air conditioning system was 18 years old, replacement parts were no longer available and it was undersized for the home. 

The NDIA refused his application on the basis that it was not a reasonable and necessary support as required by s 34 of the NDIS Act [opens in new window]. Specifically, the NDIA decided that there was insufficient evidence about how Mr McKenzie regulated his temperature in community settings. Also, the NDIA observed that many homes in Queensland had some form of air conditioning at home and therefore it was considered to be a day to day living expense and thus not appropriately funded by the NDIS. The NDIA's decision was confirmed on internal review. Mr McKenzie sought review of the decision in the Tribunal.

The Tribunal received expert evidence that people with MS experience temporary worsening of symptoms when their core body temperature rises. It also received evidence from Mr McKenzie that he experienced worsening symptoms when he moved from one room in his home to another. He used a number of other strategies to reduce his core temperature, including drinking cold drinks, using cooling packs, taking cold showers and going outside in the early morning and evening. 

Decision

There was no dispute that a new air conditioning system would assist Mr McKenzie to pursue the goals in his statement of goals and aspirations, and therefore s 34(a) of the NDIS Act [opens in new window] was satisfied.

The next issue was whether new air conditioning would assist him to undertake activities so as to facilitate his social and economic participation - see s 34(b) of the NDIS Act [opens in new window]. Mr McKenzie had been unable to work since 2013 because of his MS and there were no other ways in which he engaged in economic participation. However, the Tribunal followed the decision in Pavilupillai v NDIA (discussed in the blog here - opens in new window) and emphasised that social participation can include activities directed to maintaining health or domestic arrangements. At [48] of the decision [opens in new window] the Tribunal stated 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." It found that air-conditioning was a support that will assist him to undertake those activities. 

The Tribunal then considered the evidence about whether the air conditioning represented value for money. After hearing from experts about the effect of higher temperatures on people with MS, as well as the evidence from Mr McKenzie himself, the Tribunal concluded at [56] of its decision [opens in new window] that there were no comparable supports that would achieve the same outcome for Mr McKenzie at a substantially lower cost. The Tribunal noted that he intended to continue to live in his current home, and the life-span of the new system meant that air conditioning would be of long term benefit to him. Therefore, s 34(c) of the NDIS Act [opens in new window] was satisfied.

There was no dispute that air conditioning was likely to be effective and beneficial to Mr McKenzie having regard to current good practice and therefore s 34(d) of the NDIS Act [opens in new window] was satisfied.

In relation to the requirement that the funding or support take into account what it is reasonable to expect families, carers, informal networks and the community to provide, the NDIA argued that air conditioning was something that Mr McKenzie and his wife had always had (including prior to Mr McKenzie's diagnosis of MS), that it is an everyday household item in Queensland that requires routine upgrades and maintenance and therefore it is reasonable for the new air conditioning system to be paid for by Mr McKenzie and his family.

The Tribunal rejected the NDIA's argument. It referred to McGarrigle v NDIA [2017] FCA 308 [opens in new window] where Mortimer J stated at [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. [emphasis added]

The Tribunal found that therefore the NDIS rules did not contemplate Ms McKenzie having to pay for the air conditioning. Therefore, s 34(e) of the NDIS Act [opens in new window] was satisfied.

The Tribunal also found that there was nothing to suggest that the support is more appropriately funded by a body other than the NDIS and therefore s 34(f) of the NDIS Act [opens in new window] was satisfied.

The Tribunal also considered the NDIS Rules [opens in new window], in particular rules 5.1 and 5.2. Rule 5.1 stated that a support will not be provided or funded under the NDIS if "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". The NDIA argued that air conditioning was a day-to-day living cost. At [69] of its decision [opens in new window] the Tribunal rejected that argument. It found that the replacement of an air conditioning system was a one-off or at most several times in a lifetime cost, not a day-to-day expense. 

The fact that many homes in far north Queensland had air conditioning did not make it a day to day expense or an expense unrelated to Mr McKenzie's disability. The Tribunal followed the decision of Milburn v NDIA [2018] AATA 4928, [73] [opens in new window] and stated: 

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.

The Tribunal noted that it could not predict whether Mr and Mrs McKenzie would still have replaced their air conditioning system even if Mr McKenzie did not have MS. 

Accordingly, the Tribunal set aside the NDIA's decision and allowed for funding for replacement of the air conditioning system.

Discussion

This case makes two useful points for NDIS participants and their supporters. The first is that social participation does not necessarily need to take place in the community. Mr McKenzie described himself as a bit of a hermit (and this was true prior to his MS preventing him from working) and that he preferred to spend time at home. The Tribunal found that Mr McKenzie's activities at home, including using his home gym and doing light housework still constituted social participation. This decision re-emphasises the broad nature of social and economic participation. 

Second the case is an interesting application of the principle that the difference between something that is a disability support (which the NDIS will fund) and something that is an expense of daily living (which the NDIS will not fund) depends on the nature of the disability and its effect on a person. Mr McKenzie had a particular need for air conditioning beyond that of an ordinary person living in North Queensland. The consequences of him getting hot were far more severe than that of an ordinary person. Accordingly, air conditioning that might be seen as a day-to-day expense for someone who was not in Mr McKenzie's position was found to be non-discretionary spending related to his disability. Participants and supporters will find this to be a useful decision if the NDIA declines funding on the basis that something is a day-to-day expense.