Anthony Hadjiantoniou and Secretary, Department of Health and Ageing

[2013] AATA 289

[2013] AATA 289

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4773
Re	Anthony Hadjiantoniou
APPLICANT
And	Secretary, Department of Health and Ageing
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	23 April 2013
Date of written reasons	10 May 2013
Place	Melbourne

The Tribunal affirms the decision under review.

...........................[sgd].............................................

G. D. Friedman, Senior Member

HEALTH AND AGEING - Aged Care Act 1997 - Care Recipient - Hardship Supplement - No Financial Hardship – Decision under review Affirmed

Aged Care Act 1997 (Cth)

REASONS FOR DECISION

G. D. Friedman, Senior Member

10 May 2013

EXTRACT OF TRANSCRIPT PROCEEDINGS  

1. The decision under review is a decision by the Secretary of the Department of Health and Ageing in respect of Anthony Hadjiantoniou.  That decision was made on 27 September 2012.  He is a person approved as a care recipient under the Aged Care Act 1997 (The Act).  In its decision the respondent decided under subsection 44-22 (2) to refuse to determine that the daily income tested reduction is zero; and under subsection 44-31 (1) to refuse to determine that Mr Hadjiantoniou is eligible for a hardship supplement on the basis that paying the maximum daily amount of residence fees would cause financial hardship. It also decided under subsection 57A-9 (1) to refuse to determine that Mr Hadjiantoniou not be charged an accommodation charge or an accommodation charge of more than a specified amount as the charge would cause financial hardship. 

2. Mr Hadjiantoniou entered aged care on 23 December 2005 and prior to this, on 7 November 2005 Centrelink assessed his assets for aged care purposes at $725,227.  Under subsection 58-3 of the Act, care recipients pay from their pension a standard resident contribution which, for Mr Hadjiantoniou, is 85 per cent of the basic age pension amount.

3. In addition, subsection 44-22 provides for the daily income tested amount for a care recipient be reduced to zero in some circumstances.  As far as the hardship supplement is concerned, the maximum daily amount of resident fees payable by a care recipient is reduced if the Secretary determines that the person is eligible for a hardship supplement under subsection 44-31. The Secretary must have regard to a number of matters, including the care recipient’s income, financial arrangements and whether the care recipient has significant assets.

4. As far as the accommodation charge is concerned, subsection 57A-2 sets out the basic rules relating to the payment of an accommodation charge.  In January 2012 Mr Hadjiantoniou applied for an asset assessment under subsection 44-8AB and the Secretary delegated the assessment to Centrelink.  The assessment shows that as at December 2005 Mr Hadjiantoniou’s relevant assets totalled $1,135,404.  In regards to the financial hardship determination, if a care recipient has been required to pay an accommodation charge but the person no longer has the financial capacity to do so, the person can apply for a financial hardship determination.

5. The legislation provides that the Secretary may determine whether the accommodation charge would cause a person financial hardship, and that takes into account a number of factors, including the value of the person’s assets other than unrealisable assets.  It also includes the question of whether the person has recently gifted any assets.  On the information provided to me, I find that, as at November 2012, Mr Hadjiantoniou received an assessable income of $1,218.31 per fortnight from age pension, allocated pension and rental income.

6. I also find that his essential fortnightly care expenses total $753.67 per fortnight.  This means that he retains $464.64 per fortnight, which is more than 16 per cent of the maximum single rate pension per fortnight (the benchmark applied at the time of the original assessment).  I also find that Mr Hadjiantoniou gifted real estate assets of $311,000 in March 2004, and as he had been approved for respite aged care in 2002, it was not unforeseen in March 2004 that he was in need of residential care.  He gifted real estate assets of $132,500 in August 2006 and $40,000 in December 2006.

7. In December 2011, Centrelink was advised that the profits Mr Hadjiantoniou received from the sale of the property in Watts Road was $30,000, but this was spent on a holiday, with $5,815 remaining.  Documents provided by the Commonwealth Bank show that Mr Hadjiantoniou had $77,749 in his allocated pension as at January 2012.  His income stream gains $30,000 per year, which, after a deductible amount, has an assessable amount of $14,312.45 per year.  He also owns a property at 15 Repton Road, Malvern East, which is currently rented, and he receives, after deductions, $8,932 per year.  This is sufficient to cover the costs of his accommodation charge.

8. I am satisfied from the material available to me that as at 23 December 2005 Mr Hadjiantoniou had an interest in eight properties.  An asset assessment was completed by Centrelink on 13 February 2012 with a date of effect 23 December 2005.  This assessment lists total assets of $1,135,404, comprising a bank account of $306,385, income stream $222,855 and real estate of $604,164 with his former family home being exempt.

9. Financial hardship assistance is available to those who find themselves in circumstances outside the control of the aged care recipient or that person’s representative.  This applies rather than when a choice has been made that results in financial difficulty.  I understand Ms Hadjiantoniou is telling me that Mr Hadjiantoniou should not be paying asset values because he does not have any assets.  However, I find that he has sufficient income and assets to cover the costs of his fees and charges under the Act.

10. Mr Hadjiantoniou incurs a cost of private health insurance, but this is not an essential expense because he has access to Medicare.  Therefore, the premiums are not relevant in respect of the basic daily fee and the income tested fee.  Similarly, Mr Hadjiantoniou incurs expenses from his rental property at Malvern East, but he has made the choice to use this property for rent, so the rental expenses are not to be considered in respect of the basic daily fee and income tested fee.  Therefore, in respect of assistance with the income tested and basic daily fee, Mr Hadjiantoniou retained significantly greater than 15 per cent of the maximum single age pension.  Therefore, he is not entitled to assistance with the income tested and basic daily fee.

11. With regard to assistance with the accommodation charge, Mr Hadjiantoniou holds assets significantly greater than the minimum threshold available to his date of entry to care, and he receives sufficient rental income from his asset to meet the cost of the accommodation charge.  For those reasons, I find that the payment of aged care fees and charges will not cause Mr Hadjiantoniou financial hardship.  I therefore affirm the decision under review.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

.................................[sgd].......................................

Associate

Dated 10 May 2013

Date of hearing	23 April 2013
Advocate for the applicant	Mrs Hadjiantoniou
Advocate for the respondent	Ms Kim Robbins