ERMELINDA SCHIAVELLO and SECRETARY, DEPARTMENT OF HEALTH AND AGEING
[2012] AATA 538
[2012] AATA 538
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5513
Re
ERMELINDA SCHIAVELLO
APPLICANT
And
SECRETARY, DEPARTMENT OF HEALTH AND AGEING
RESPONDENT
DECISION
Tribunal Mr. C. Ermert, Member
Date 17 August 2012 Place Melbourne The Tribunal affirms the decision under review.
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Mr. C. Ermert, Member
CATCHWORDS
Health and Ageing - nursing home accommodation charges - assets assessment - value of home may be exempted - whether carer occupied the home for two years
LEGISLATION
Aged Care Act 1997 section 44.10 (2)
REASONS FOR DECISION
Mr C. Ermert, Member
17 August 2012
INTRODUCTION
On 1 July 2011 Mrs Ermelinda Schiavello, the applicant, was admitted to the Andrina Private Nursing Home (the nursing home). Prior to that admission, Mrs Schiavello resided at 32 Lambeth Avenue, Armadale (the Armadale property). On 12 August 2011 Ms Catena Schiavello, the applicant’s daughter, completed and lodged with Centrelink, the service provider for the respondent, a Request for an Assets Assessment form on behalf of her mother. On the form, Ms Schiavello stated that her mother had a 50 per cent share in the Armadale property and estimated the market value of the property as $1,090,000.
On 19 August 2011 a Centrelink delegate of the respondent advised Ms Schiavello that her mother was eligible to pay an accommodation charge of up to $30.55 per day whilst residing at the nursing home. The accommodation charge was determined on the value of her mother’s assets, which included the Armadale property.
Ms Schiavello requested a review of the Centrelink delegate’s decision. She submitted that Centrelink should treat the Armadale property as an exempt asset because she had been caring for her mother at that property for at least two years prior to her mother’s admission to the nursing home. On 1 December 2011 an Authorised Review Officer (ARO) advised Ms Schiavello that he had affirmed the earlier decision. Ms Schiavello lodged an application with this Tribunal for review of the ARO’s decision.
THE HEARING
Ms Schiavello appeared on behalf of her mother and gave evidence. Mr Rocco Antonio Lomacchio and Mr Gaetano Angelo Lomacchio, both sons of Ms Schiavello, also gave evidence. Ms Cherie Canning of Australian Government Solicitor appeared on behalf of the respondent.
I had before me the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents, pages 1 to 187) and (the Supplementary T-Documents, pages 188 to 202). I took into evidence Statutory Declarations made by Mr Rocco Lomacchio (undated), Mr Gaetano Lomacchio (undated) and Ms Schiavello (dated 8 May 2012).
THE LEGISLATION
Section 44.10(2) of the Aged Care Act 1997 (the Act) determines when the value of a home may be exempted from an assets assessment. It provides that:
(2)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:
(a)the partner or a dependent child of the person; or
(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;
THE ISSUE
In this case, there is no dispute that Ms Schiavello, who was the carer of her mother, was eligible to receive a carer allowance from Centrelink at the time. The only issue to be determined is whether Ms Schiavello had occupied the Armadale property for two years prior to her mother’s admission to the nursing home.
THE EVIDENCE
Ms Schiavello
Ms Schiavello gave her evidence under affirmation. She said that her mother was 86 years old. She said that her mother had a fall in 2009. After her fall, it was no longer possible to look after her mother at the Armadale property. Therefore, Ms Schiavello arranged to have her mother admitted to a nursing home. Ms Schiavello testified that she continued to stay at the Armadale property. However, she did not notify Centrelink of her change of address to the Armadale property as she did not think it mattered. Ms Schiavello referred to the Statutory Declaration dated 28 November 2011, signed by her mother, that stated ... My daughter: Catena Schiavello has lived and looked after me from 2009 till July 2011: and is still living in my home at: 32 Lambeth Ave, Armadale, 3143.
Under cross-examination, Ms Canning referred to a Rent Certificate dated 9 December 2009 and asked Ms Schiavello why the document showed her address as Apt 26/76 East Boundary Road, Bentleigh East (the Bentleigh East property). Ms Schiavello stated that she was not living at that property at the time, and that she was living with her mother at the Armadale property. She said that a Centrelink officer told her to leave the address of the Bentleigh East property on the form. When questioned why the Bentleigh East property address also showed on a Centrelink Statement dated 10 December 2009, Ms Schiavello said that a Centrelink officer advised her that the address did not matter.
Ms Canning asked why Ms Schiavello wrote the address of the Bentleigh East property in the permanent address section of a Claim for Carer Payment form dated 8 April 2010. Ms Schiavello said that she used that address for postal purposes. She also said that she was receiving Rental Assistance for that address. She added that she was following the advice of a Centrelink officer. Ms Schiavello denied receiving any correspondence from Centrelink during 2009 and 2010.
Ms Canning asked Ms Schiavello about her answer to Question 14 in a Carer Allowance Questionnaire dated 21 April 2010. Question 14 had asked Ms Schiavello how many hours did she spend each week helping her mother with mobility. In response, Ms Schiavello had written (1 hr per day) but most of the time there every day. Ms Schiavello said that, at the time she filled out the form, she was hoping that her sister would take over some of the caring-load. However, that did not eventuate. In answer to Question 19 of the same form, regarding hours spent helping with safety and behaviour, Ms Schiavello had written (1 hr per day) Some Sundays won’t go down but have my mum come to my place or make sure she’s ok.... In explanation, Ms Schiavello said that she would go back to the Bentleigh East property for a break away from the Armadale property, to pick up the mail and to pick up things.
Ms Canning referred Ms Schiavello to the following letters from Centrelink (contained in the T-Documents, pages 114 to 119):
·A letter dated 2 December 2010 sent to the Bentleigh East property address
·A letter dated 1 January 2011 sent to the Bentleigh East property address
·A letter dated 3 February 2011 sent to the Bentleigh East property address
The letters contained instructions that Ms Schiavello must advise Centrelink of changes to her postal address. Ms Schiavello stated that a Centrelink officer had told her that she did not need to do so and that she could have a postal address anywhere. She said that if the Centrelink officer had told her that not changing the postal address would have an impact on her mother’s benefits, then she would have changed the address from the Bentleigh East property to the Armadale property.
I asked Ms Schiavello when she moved to the Armadale property on a full-time basis. She answered February 2010. Later she changed that answer to September 2009, saying by way of explanation that she was confused when she gave the first answer.
Mr G. Lomacchio
Mr G Lomacchio affirmed the correctness of the information in his Statutory Declaration. There were no questions asked of him.
Mr R Lomacchio
Mr R Lomacchio affirmed the correctness of the information in his Statutory Declaration. He testified that his mother, Ms Schiavello, helped him pay the bills and the mortgage for his property, the Bentleigh East property. He said that she moved out to her mother’s house (the Armadale property) on the 7th or 8th September 2009. He related the date to the events of his brother’s wedding. He also said that Ms Schiavello still comes over to his place three to five times a week to help and to cook. He stated that she does not stay at his place as there are no facilities for her to stay.
CONSIDERATION
Most of Ms Schiavello’s evidence related to addresses she had written on Centrelink forms and other documents. These addresses related to properties other than the Armadale property. The issue is not what Ms Schiavello wrote on forms or why, but where she was actually living. In answer to the direct question of when she started to live in the Armadale property, Ms Schiavello first said February 2010. She later amended this to September 2009, saying that she had been confused when giving her earlier answer.
In his evidence, Mr Gaetano Lomacchio gave a very considered answer to the question of when his mother moved out of his property to the Armadale property. He related the date on which his mother moved out to the occasion of his brother’s wedding. He stated that Ms Schiavello moved to the Armadale property on the 7th or 8th September 2009. I note this matches well with Ms Schiavello’s amended answer.
From that evidence I am satisfied that Ms Schiavello did not occupy the Armadale property until 7 September 2009. This date is not two years prior to the applicant’s admission to the nursing home. Accordingly, I am satisfied that Ms Schiavello did not occupy her mother’s home for the required two years. I find that Ms Schiavello does not satisfy the provisions of section 44.10(2) of the Act. Consequently, the value of the Armadale property may not be exempted from an assessment of the applicant’s assets. Therefore Ms Schiavello’s application must fail.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr. C. Ermert, Member.
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Associate
Dated 17 August 2012
Date(s) of hearing 30 July 2012 Advocate for the Applicant Ms Catena Schiavello, daughter Advocate for the Respondent Ms Cherie Canning, Australian Government Solicitor
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