ANTHONY O'CARROLL and SECRETARY, DEPARTMENT OF HEALTH AND AGEING
[2013] AATA 365
[2013] AATA 365
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4245
Re
ANTHONY O'CARROLL
APPLICANT
And
SECRETARY, DEPARTMENT OF HEALTH AND AGEING
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 31 May 2013 Place Brisbane The Tribunal affirms the decision under review.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
HEALTH AND AGEING – Aged care – Supported resident status – Assets – Date for determining value of assets – Exemption of home from value of assets – Carer – Not occupying home of applicant for two years prior to entering aged care – Decision under review affirmed
LEGISLATION
Aged Care Act 1997 (Cth) ss 42-1, 44-5B, 44-9, 44-10
Residential Care Subsidy Principles 1997 (Cth) s 21.15
Social Security Act 1991 (Cth) ss 23, 957
CASES
Hughes and Secretary, Department of Health and Ageing [2007] AATA 1558
SECONDARY MATERIALS
Aged Care Amendment (Transition Care and Assets Testing) Bill 2005, Explanatory Memorandum
Department of Health and Aging Schedule of Resident Fees and Charges
REASONS FOR DECISION
Mr P Wulf, Member
INTRODUCTION
On 11 April 2012, Mr Anthony O’Carroll, the applicant,[1] entered permanent residential aged care. On 1 June 2012, the respondent decided that Mr O’Carroll was not entitled to any government financial assistance for the costs of his accommodation at the aged care facility as his assets exceeded the allowable limit. On 14 August 2012, an authorised review officer affirmed the decision. Mr O’Carroll now seeks review of that decision by this tribunal.
[1] On 4 April 2012, the applicant appointed his son Mr John O’Carroll and his daughter Ms Annette O’Carroll as attorneys in regards to his financial and personal/health matters under an enduring power of attorney. Ms O’Carroll has been his representative in regards to all matters in this representation, including the hearing on 27 March 2013 and other contact with the respondent: see Exhibit 1, T-document 4, pp. 18-23.
BACKGROUND
Prior to 11 April 2012, when he entered aged care, Mr O’Carroll had been living in a unit at retirement village at Redcliffe. As a result of moving into permanent aged care, the respondent sent Mr O’Carroll a Request for an Assets Assessment form so it could determine whether or not he qualified as a “supported resident” for the purposes of aged care. Ms O’Carroll’s power of attorney returned the form to the respondent on 10 May 2012.[2] On 1 June 2012, after receiving additional information, the respondent valued Mr O’Carroll’s assets at $220,439, including a valuation of $135,000 for the retirement village unit (“the unit”) he resided in prior to entering aged care. As the value of the assets exceeded the maximum limit of $108,266, it was determined that Mr O’Carroll was not entitled to be classed as either a fully or partially supported aged care resident.[3]
[2] Exhibit 1, T-document 5, pp. 24-29.
[3] Exhibit 1, T-document 8, pp. 53-56.
LEGISLATION AND INSTRUMENTS
Residential care subsidies are provided for by Chapter 3.1 of the Aged Care Act 1997 (Cth) (“the Act”). Under the Act, any subsidy allocated for a resident is not paid to them personally but to the approved facility that is providing the care: see s 42-1.
The approved provider will be eligible for a subsidy in circumstances where the care recipient is classed as a “supported resident” under s 44-5B of the Act, which reads:
(1) A person is a supported resident on a particular day if:
(a) on that day, the person is being provided with residential care (other than *respite care) through a residential care service; and
(b) on that day, the person is a *post‑2008 reform resident; and
(c) the amount determined by the Secretary by legislative instrument in relation to that day for the purposes of this paragraph is equal to or more than the value of the person’s assets at the time at which the person *entered the residential care service or such other time specified in the Residential Care Subsidy Principles.
Under s 44-9 of the Act, a person cannot be considered to be a supported resident unless they have provided sufficient information so as the value of their assets can be determined.
Section 44-10 of the Act provides that the value of the person’s assets, for the purposes of determining a person’s supported resident eligibility, is to be determined in accordance with the Residential Care Subsidy Principles. Section 21.15 of the Residential Care Subsidy Principles 1997 (Cth) (“the Principles”) provides, relevantly in this case, that a person’s assets include the value of any real estate, bank accounts, shares and household furniture and personal effects. Relevantly, s 21.15A of the Principles provides that the time that the value of the assets is to be assessed is the day that the person first enters aged care.
In regards to real estate, this being real property, s 44-10(2) of the Act relevantly provides:
In working out the value at a particular time of the assets of a person who is or was a *homeowner then, disregard the value of a home that, at the time, was occupied by:
…
(b) a carer of the person who:
(i) had occupied the home for the past 2 years; and
(ii) was eligible to receive an *income support payment at the time; or
…
The Department of Health and Ageing release, every six months, an updated Schedule of Resident Fees and Charges which provides the assets cut-off level for supported residents in aged care. The relevant schedule is that which was effective from 20 March 2012. The Schedule states that the assets cut-off level for a fully supported resident at that time was $40,500 and, for a partially supported resident, $108,266.40.[4]
[4] See Exhibit 1, T-document 3, p. 16-17.
ISSUE
The issue for determination in this case is whether the value of Mr O’Carroll’s assets precludes him from being considered a “supported resident” for the purposes of aged care under the Act.
EVIDENCE
The evidence before the Tribunal comprised:
(a)Exhibit 1: the "T Documents" (T1-15: pp. 1-95) lodged by the Secretary, Department of Health and Ageing in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
(b)Exhibit 2: applicant’s bundle of documents including a statement from Ms Parsons dated 9 February 2013;
(c)Exhibit 3: Respondent’s Statement of Facts and Contentions dated 20 March 2013; and
(d)the oral evidence of the applicant’s representative.
In the Request for an Assets Assessment form, completed by Ms O’Carroll and returned to the respondent on 10 May 2012, Mr O’Carroll’s assets are listed as being $75,829 in various bank accounts; $500 in household and personal effects; and 1000 shares in a listed company (valued at $3,610 on 11 April 2012).[5]
[5] Exhibit 1, T-document 5, pp. 24-49.
The major asset listed in the form is the unit that Mr O’Carroll lived in prior to entering aged care. The form states that the amount that will be paid to Mr O’Carroll when it is sold will be $150,000. In hand written notes, presumably by Ms O’Carroll, it states that this amount will be “less agent commission” and that selling the unit has been difficult.[6]
[6] Exhibit 1, T-document 5. pp. 34-35.
The form also asks for information as to any other people that were living in the unit. It states, relevently, that there was no one living in the unit that was caring for Mr O’Carroll who was “eligible to receive an income support payment from Centrelink”. However, again in a handwritten note in the document, it also stated “but did have a carer living with dad”.[7]
[7] Exhibit 1, T-document 5, p. 36.
On 11 May 2012, the respondent wrote to Mr O’Carroll requesting that he provide a letter from the retirement village indicating the amount of refund that he was entitled to now that he had left the village. On 24 May 2012, the managers of the retirement village wrote to the respondent informing them that the unit was held freehold by Mr O’Carroll and that it was at the discretion of him or his family to sell the unit if they wished. The managers also stated that it was presently for sale at $150,000 although they believed it was more realistically valued at $135,000.[8]
[8] Exhibit 1, T-document 7, p. 52.
On 14 June 2012, the respondent was contacted, presumably by one of Mr O’Carroll’s powers of attorney, enquiring as to why the unit had been assessed as an asset when he had had a carer living with him for the two years prior to moving into aged care. The respondent advised that if there had been a carer then they would have to complete a form verifying this same and submit that to the respondent.
On 24 June 2012, Ms O’Carroll forwarded, enclosed in a letter, an updated portion of the Request for an Assets Assessment form concerning other people who lived at the unit.[9] Therein, the updated version states that Mr O’Carroll had a carer living with him for the past two years and it is signed by Ms Gillian Parsons. However, Ms Parsons also indicates on the form that her “relationship to the applicant” was “Carer June 2009 July 2011”. In addition, a file note made by the authorised review officer on 14 August 2012, indicates that Ms Parsons was contacted directly and she informed them that she had moved out of the unit in July 2011.[10]
[9] Exhibit 1, T-document 10, pp. 57-59.
[10] Exhibit 1, T-document 14, p. 87.
Ms Parsons provided a statement dated 9 February 2013.[11] In her statement she says that she was Mr O’Carroll’s “companion/carer” from June 2009 to late June 2011. Ms Parsons states that she “ceased caring” for Mr O’Carroll in late June 2011 as she became ill herself and that this “forced [her] to leave the unit fully in July 2011”. She says after that she would visit Mr O’Carroll, staying for the day when she was well enough, with her daughter picking her up in the afternoon.
[11] Exhibit 2.
SUBMISSIONS
At the hearing on 27 March 2007, the Tribunal adjourned the matter and directed that the application would be listed for a further hearing if the applicant wished to have Ms Parsons attend and give oral evidence. The applicant was to advise the Tribunal and respondent by 5 April 2013. On 4 April 2013, Ms O’Carroll, on behalf of the applicant, advised by email that while she would prefer to have Ms Parsons give evidence at the Tribunal, this was not possible due to her ill health.[12]
[12] See email dated 3 April 2013 and filed in the Tribunal on 4 April 2013.
Ms O’Carroll, in her email of 3 April 2013, submitted that Mr O’Carroll’s unit should be exempt from the assets assessment as Ms Parsons was his carer and she satisfied the requirement that she was living there in the two years prior to him entering aged care. She submitted that as Ms Parsons was unable to care for Mr O’Carroll from July 2011, he should have moved into an aged care facility at that time and it follows that Ms Parsons would have then satisfied the two year requirement. In the alternative, Ms O’Carroll submitted that Ms Parsons should be considered to have been given 6 months leave from her carer duties while she recuperated from her own illness; this would mean leave until to the end of December 2011, and, as Mr O’Carroll was hospitalised for the entire period from 30 December 2011 until his admission into aged care, the two year period of living at the unit would effectively remain unbroken. Ms O’Carroll submitted that other government “documents/policies” provided for up to 128 days leave for carers due to illness or respite.
The respondent submitted that the date for determining the value of Mr O’Carroll’s assets is 11 April 2012, the day he entered aged care and that he cannot be considered a fully supported resident or partially supported resident as the value of his assets on that day exceeded the allowable limits of $40,500 and $108,266.40, respectively.
The respondent submitted that the unit previously occupied by Mr O’Carroll is to be considered part of his assets for assessment, with a value of $135,000. The respondent says that while Ms Parsons may have lived at the unit as Mr O’Carroll’s carer for a period of two years previously, it is clear from both Ms Parsons’ statement and her comments to the respondent that she fully moved out of the unit in July 2011. Therefore, the value of the unit cannot be exempted from the total value of his assets under s 44‑10(2) of the Act as Ms Parsons cannot be considered to have been living there as a carer for a period of two years prior to Mr O’Carroll moving into aged care on 11 April 2012. In regards to the value of Mr O’Carroll’s household and personal effects, the respondent submitted that they should be given a reasonable value of $5,000-$6,000 in light of s 21.15(5) of the Principles which requires that a value of $5,000 be placed on these assets if no evidence of another value is provided.
CONSIDERATION
The major issue to consider in this matter is whether the value of Mr O’Carroll’s unit at the retirement village should be considered an asset or be exempted from the assessment due to having a carer living there during the two years prior to him moving into aged care.
I accept the respondent’s submissions that under the statutory arrangement, the proper date for determining the value of Mr O’Carroll’s assets is 11 April 2012, the day he first entered into aged care. I also accept that the value of the unit at the retirement village is that provided by the management of the village, being $135,000, which is more favourable to the applicant than if I valued the unit at $150,000.
For the value of the unit to be exempted, s 44-10(2)(b) of the Act must be satisfied and the only way this would occur would be if Ms Parsons was a carer who was eligible to receive an income support payment and had resided at the unit for a period of two years prior to the day Mr O’Carroll entered aged care.
The applicant’s representative, Ms O’Carroll, disputed that Ms Parsons fully left the unit in July 2011 after she became ill and needed to live with her daughter so she could receive care herself and that it remained her permanent home as she continued to care for her father through visits and continued to receive mail at the unit after that time. Ms O’Carroll also submitted that many of Ms Parsons’ personal items were still in the unit and therefore this was her primary home. Section 44-10(2) states that the value of the home can only be disregarded if “at the time” the carer “occupied” the home for the past two years. The Explanatory Memorandum to the Bill[13] which introduced the provision makes it clear that the circumstances of occupancy are to be considered “at the time of valuing the assets”.
[13] Aged Care Amendment (Transition Care and Assets Testing) Bill 2005.
As I have already indicated, “the particular time” for working out the value of the assets was 11 April 2012. It follows that for the exemption to apply, then “at the time” Ms Parsons must have “occupied” the unit. It is clear from Ms Parsons’ statements that she did not.
The Act provides no guidance on what is meant by “occupied”. The circumstances of “occupied the home” for the purposes of s 44-10(2) was considered in Hughes and Secretary, Department of Health and Ageing.[14] In that case, the applicant’s daughter, who was also her carer, “spent significant amounts of time at the house, although never as much as half a given year, and generally between one and four months” before the applicant went into aged care. However, the Tribunal held, at [30], that in the absence of some propriety right to the property, the applicant’s daughter would have to demonstrate that the house was her “principal place of residence”. Even with the amount of time she did spend at the house, this could not be demonstrated in that case.
[14] [2007] AATA 1558.
In her statement of 9 February 2013,[15] Ms Parson says that she cared for Mr O’Carroll at the unit from June 2009 to June 2011 and that she “had moved some of [her] belongings” into the unit. However, Ms Parson’s also states that her illness “forced her to leave the unit fully in July 2011” (my emphasis added). Also, prior to her statement, she had informed the authorised review officer that she had moved out in July 2011. It is clear from Ms Parson’s statements that, at the very least, the unit could not be considered to be her principal place of residence after July 2011. Therefore, she was not “occupying” the house for a period of two years prior to Mr O’Carroll entering aged care on 11 April 2012.
[15] Exhibit 2.
In the alternative, Ms O’Carroll submits that the period between Ms Parsons leaving in July 2011 and Mr O’Carroll entering hospital at the end of December 2011 should be considered carer leave, in line with other government “documents/policies”. Ms O’Carroll does not specifically nominate what these documents/policies are. I note that under s 957 of the Social Security Act 1991 (Cth) (“the SS Act”), a person who is in receipt of “carer allowance” may have their allowance continued if the care temporarily ceases, but only up to a maximum of 63 days in a calendar year; however, this is much less than the six months advocated by Ms O’Carroll. In any event, another condition for Ms Parson’s to have met for the unit to be exempted was that she was caring for Mr O’Carroll and that, at the time, she was eligible to receive an “income support payment”. The Act provides that the definition for an income support payment is that given in s 23(1) of the SS Act; carer allowance is not included as an income support payment under that section. While no evidence was presented as to what type of income support payment Ms Parsons was receiving, it follows that if she were only eligible for carer allowance then she would be excluded from the meaning of s 44-10(2)(b) of the Act and no exemption of the unit from the assets assessment would then arise.
Ms O’Carroll also opined that if Mr O’Carroll had first entered aged care when Ms Parsons became ill in June 2011, then she would have been considered to have been occupying the unit for the required two year period. While this may be true, it is, unfortunately for Mr O’Carroll, only conjecture with no factual basis and, therefore, it cannot be considered in the context of whether the exemption in s 44-10(2) of the Act should apply.
In regards to the other assets, the respondent valued the household and personal effects at $6,000 while the applicant’s power of attorney valued these at $500 in the Request for an Assets Assessment form. The applicant’s representative does not appear to have provided any other evidence to support this value and, therefore, they should be assigned a value of $5,000 in line with s 21.15(5) of the Principles. I accept that the value of Mr O’Carroll’s bank accounts and shares at the time were $75,829 and $3,610 respectively.
CONCLUSION
The Tribunal considers that the total value of Mr Parson’s assets on 11 April 2012 was $219,439. The value of Mr O’Carroll’s assets therefore exceeds the asset cut-off levels for both fully supported and partially supported resident status under the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.
.......................[Sgd].................................................
Associate
Dated 31 May 2013
Date of hearing 27 March 2013 Date final submissions received 4 April 2013 Advocate for the Applicant Ms Annette O'Carroll Solicitor for the Respondent Mr Tim Ffrench, Departmental Advocate
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