ANTHONY O'CARROLL and SECRETARY, DEPARTMENT OF HEALTH AND AGEING

Case [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

  1. 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

  2. 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

  3. 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…

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ANTHONY O'CARROLL and SECRETARY, DEPARTMENT OF HEALTH AND AGEING [2013] AATA 365
Case
[2013] AATA 365
Decision Date

CaseChat Overview and Summary

In the matter of Anthony O'Carroll and the Secretary, Department of Health and Ageing, the primary issue at hand was whether the applicant was eligible for government financial assistance for the costs of his accommodation at an aged care facility. The applicant, Mr Anthony O'Carroll, entered permanent residential aged care on 11 April 2012, and on 1 June 2012, the respondent determined that he was not entitled to any government financial assistance for his accommodation costs as his assets exceeded the allowable limit. The applicant sought review of that decision by the tribunal. The legal issues before the court were whether the value of Mr O'Carroll's assets, including his unit at a retirement village, precluded him from being considered a "supported resident" for the purposes of aged care under the Act, and whether the value of the unit should be exempted from the assessment due to having a carer living there during the two years prior to him moving into aged care.

The court considered the statutory arrangement and determined that the proper date for determining the value of Mr O'Carroll's assets was 11 April 2012, the day he first entered into aged care. The court also accepted that the value of the unit at the retirement village was that provided by the management of the village, being $135,000, which was more favourable to the applicant than if the court valued the unit at $150,000. For the value of the unit to be exempted, section 44-10(2)(b) of the Act must be satisfied, which would occur if Ms Parsons, who was a carer, 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 submitted that Ms Parsons did not fully leave the unit in July 2011 and continued to care for her father through visits and receive mail at the unit. However, the court found that the circumstances of occupancy were to be considered "at the time of valuing the assets," and it was clear from Ms Parsons' statements that she did not occupy the unit at the time.

Based on the evidence and legal considerations, the court affirmed the decision under review. The court found that the total value of Mr O'Carroll's assets on 11 April 2012 was $219,439, which exceeded the asset cut-off levels for both fully supported and partially supported resident status under the Act. As a result, Mr O'Carroll was not eligible for government financial assistance for the costs of his accommodation at the aged care facility.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.