Degiorgio and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by the applicant, Ms Degiorgio, against the cancellation of her age pension by the Secretary of the Department of Social Services. The cancellation was based on the applicant's principal place of residence no longer being exempt from the assets test, as her fees for accommodation at Lavender House were not payable under the *Aged Care Act 1997* (Cth). The applicant had been admitted to Lavender House, a ward within a public psychiatric hospital, due to her deteriorating mental health and cognitive impairment, requiring a higher level of care than previously provided in aged care facilities.

The primary legal issue before the court was whether the applicant's principal place of residence remained an exempt asset for the purposes of the age pension assets test, despite her admission to a facility that was not an approved provider under the *Aged Care Act*. This turned on whether the fees paid for her accommodation and care at Lavender House were considered to be rendered under that Act, or under state health legislation. The court also considered whether, in the circumstances, the cancellation of the pension was appropriate, or if suspension would have been a more suitable course of action.

The court found that Lavender House, being a ward of a public psychiatric hospital funded by NSW Health, was not an approved provider under the *Aged Care Act*. Consequently, the fees paid by the applicant, although for accommodation, meals, and care, were gazetted under the *Health Services Act 1997* (NSW) and not the *Aged Care Act*. The court accepted evidence that the care provided was akin to that in other aged care facilities, and the move was necessitated by the applicant's need for a higher level of psychiatric care. Despite the applicant's frail condition and ongoing need for 24-hour nursing care, the court noted that once the principal place of residence exemption was lost, it could not be re-established. However, given the applicant was in a "care situation" and the circumstances of her admission to Lavender House, the court considered suspension of the pension to be a more appropriate alternative to cancellation for the period of her stay there.

The decision under review was set aside, and the matter was remitted to the Respondent for reconsideration. The court directed that the Respondent consider suspending the applicant's age pension for the period between 22 May 2017 and 8 March 2018, as an alternative to cancellation. The question of whether the exemption for her principal place of residence might apply after this suspension period was left for the Secretary to determine.