Fullarton Lutheran Homes Inc and Department of Health and Aged Care - [2001] AATA 673

DECISION AND REASONS FOR DECISION [2001] AATA 673

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/260

GENERAL ADMINISTRATIVE DIVISION         )
           Re      FULLARTON LUTHERAN HOMES INC
  Applicant
           And    SECRETARY, DEPARTMENT OF HEALTH AND AGED CARE
  Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Date25 July 2001
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
AGED CARE ACT - whether the care recipient entered applicant's care on specified date - final date for appraisal - whether appraisal sent in sufficient time to be received by Secretary, in the ordinary course of events, within two months after the day on which provision of care began.

Aged Care Act 1997 s26-2

REASONS FOR DECISION

25 July 2001 Miss WJF Purcell (Senior Member)

During the course of a telephone Directions Hearing which took place on 6 July 2001, the parties requested that a decision be made by the Tribunal on the papers already before it; as the applicant acknowledged that the legislation did not provide to the Tribunal a discretion in relation to the date of effect of an appraisal. I agreed to provide the parties with brief reasons for decision.
This is an application for review of a decision of 18 May 2001, of a Delegate to the Secretary, Assistant State Manager, Aged and Community Care, to affirm a decision of 18 May 2001 of a delegate of the Secretary of the Department of Health and Aged Care (the Department) in relation to the date of effect of a late receipt of an appraisal for care recipient Mrs Gertrude E Williams (the recipient).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with the Department's Statement of Events/Decisions and submissions, and the parties' Statement of Agreed Facts. The applicant's Manager – High Care, Mrs Reeve, represented the applicant. The Department was represented by Mr Feneley, Senior Legal Officer, Legal Services Branch, who was assisted at the telephone Directions Hearing, by Mr Cheng of the Department's Policy Section.
Section 26-2 of the Aged Care Act 1997 (the Act) so far as is relevant for the purposes of this review, provides:
"26-2 Assessments not received within the appropriate period - care other than respite care
(1)       A classification of a care recipient (other than a classification in relation to care provided as *respite care) takes effect from the day an appraisal of the care recipient is received by the Secretary if the appraisal is received outside the period in paragraph 26-1(a) or (b) (whichever is applicable).
(2)       However, if the Secretary is satisfied that the appraisal was sent in sufficient time to be received by the Secretary, in the ordinary course of events, within that period, the classification is taken to have had effect from the day the care recipient began being provided with the level of care specified in the appraisal.
Note:   A decision that the Secretary is not satisfied an appraisal was sent in sufficient time is reviewable under Part 6.1.
(3)       In considering whether an appraisal received outside that period was sent in sufficient time, the Secretary may have regard to any information, relevant to that question, that the approved provider gives to the Secretary.
(4)       The Secretary must notify the approved provider, in writing, if the Secretary is not satisfied that the appraisal received outside that period was sent in sufficient time."
The relevant facts in this matter are set out in the Statement of Agreed Facts of 15 January 2000, in the following terms:-
"1.The Aged Care Act 1997 ("the Act") provides for the payment of subsidies by the Commonwealth to approved providers for the provision of aged care to care recipients.
2. The Applicant is an approved provider for the purposes of the Act.
3.Care recipients approved under Part 2.2 of the Act are classified according to the level of care they need. The classification may affect the amount of subsidy payable to the approved provider for providing care.
4.Section 25-1 of the Act provides that if the Secretary of the Department of Health and Aged Care receives an appraisal under section 25-3 of the Act the Secretary must classify the recipient according to the level of care the care recipient needs, relative to the needs of other care recipients. In classifying the care recipients the Secretary must take into account the appraisal made of the care recipient under section 25-3 of the Act.
5Section 25-3 of the Act provides that the appraisal of the care recipient must be made by the approved provider or by a person acting on the approved provider's behalf.
6.Under section 26-1 of the Act the classification of a care recipient is taken to have had effect from the day on which the provision of the level of care specified in the appraisal to the care recipient began, if the appraisal is received by the Secretary within two months after the day on which provision of the care to the care recipient began.
7.Subsection 26-2(1) provides that a classification of a care recipient takes effect from the day an appraisal of the care recipient is received by the Secretary if the appraisal is received outside the two month period specified in section 26-1.
8.Subsection 26-2(2) provides that where the Secretary is satisfied that the appraisal was sent in sufficient time to be received by the Secretary, in the ordinary course of events, within the specified two month period, the classification is taken to have had effect from the day that the care recipient began being provided with the level of care specified in the appraisal. In considering whether the appraisal was sent in sufficient time the Secretary may have regard to any relevant information supplied by the approved provider.
9.Section 22 Acts Interpretation Act 1901 provides that in any Act unless the contrary intention appears the word 'month' shall mean calendar month. 'Calendar month' is in turn defined as meaning a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month. (There is no contrary intention to be found as to the meaning of 'month' in section 26-1 of the Act).
10.On 27 April 2000, the Applicant lodged an Application for Classification form in respect of the initial appraisal of Mrs Gertrude Emilie Williams ("the recipient") together with a letter outlining reasons for late lodgement. The Application form was signed and dated 27 April 2000 and was date stamped as being received by the Department on that day. The Application form stated that the recipient entered care on 25 February 2000.
11.As the Applicant commenced providing care to the recipient on 25 February 2000 the latest day for the appraisal to be received by the Secretary for the purposes of section 26-1 of the Act was 25 April 2000. However as this was a public holiday (ANZAC Day) section 36 of the Acts Interpretation Act 1901 provides that the Applicant could be given to the next day to lodge the appraisal with the Secretary. Therefore in this case the last day for the Secretary to receive the appraisal was 26 April 2000.
12.The Secretary was not satisfied for the purpose of subsection 26-2(2) of the Act that the appraisal was sent in sufficient time to be received by the Secretary, in the ordinary course of events by 26 April 2000."
The matter came on for Hearing on 15 January 2001, when Deputy President Burns raised the question of jurisdiction, as to the date of the original decision, and the notification of the decision required by the legislation. The Department, on 19 February 2001, lodged a Statement of Events/Decisions, and on 18 May 2001, a fresh decision was made by the Department, and the applicant amended its application dated 5 July 2001. The telephone Directions Hearing referred to in paragraph 1 of these Reasons for Decision, was listed then for 6 July 2001.
Section 26-1 of the Act provides that the classification of a care recipient is to take effect from the day on which the provision of the level of care specified in an appraisal to the care recipient began, if such appraisal was received by the Secretary within two months after the day on which the provision of the level of care specified in the appraisal began.
In this matter, it is agreed between the parties that the recipient entered care on 25 February 2000. The latest date, therefore, for receipt of the appraisal was 26 April 2000 (25 April 2000 being ANZAC day). The Application for Classification was signed and dated 27 April 2000, and stamped as received at the Department's South Australian office on 27 April 2000.
In my view, the exemptions available under s26-2(2) of the Act clearly do not apply in this matter. That subsection provides that if the appraisal was sent in sufficient time to be received by the Secretary in the ordinary course of events, within that period, the classification is taken to have had effect from the day the care recipient began to be provided with the level of care specified in the appraisal. In this matter, the appraisal was sent on 27 April 2000, one day after the two-month period had expired.
I am satisfied that there is no other provision of the legislation which provides a discretion to the decision maker, and hence to this Tribunal, to grant an exemption for the late lodgement of the appraisal.
For these reasons the Tribunal affirms the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed: (F M Boekamp) Personal Assistant

Date/s of Hearing  6 July 2001
Date of Decision  25 July 2001
Counsel for the Applicant        Mrs Reeve
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Feneley
Solicitor for the Respondent    Legal Services Branch