Hudson and Secretary, Department of Health and Aged Care - [2025] ARTA 178

Hudson and Secretary, Department of Health and Aged Care [2025] ARTA 178 (4 March 2025)
Applicant/s:  Henry Hudson
Respondent:  Secretary, Department of Health and Aged Care
Tribunal Number:                2022/9361

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:4 March 2025

Decision:The Tribunal affirms the decision under review.
.....................................[sgnd]...................................

Senior Member N Manetta

Catchwords
AGED CARE – care subsidy reductions under Aged Care Act 1997 (Cth) – applicant claiming that decision made by respondent was not timely – applicant claiming that in this circumstance he was deemed by Act to be entitled to a zero care subsidy reduction – applicant claiming letter informing him of proper assessment received more than six months after he began home care package – respondent accepting that if this were the case, care subsidy reduction should be set at zero but submits an earlier letter satisfies regulatory criterion of a letter informing applicant of his care subsidy reduction – this submission accepted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Aged Care Act 1997 (Cth)
Cases
Secondary Materials
Subsidy Principles 2014, made under section 96-1 of the Aged Care Act 1997 (Cth) (Compilation dated 1.1.23)
Statement of Reasons

The applicant, Mr Henry Hudson, has sought a review of the respondent’s decision concerning the level of Government assistance to which he is entitled under the Aged Care Act 1997 (Cth) (‘the Act’) in respect of fees associated with his home care package.
Mr Hudson accepts that the assistance he seeks is not consistent with his level of assets and income. He maintains, however, that under the Act he is deemed to be entitled to what is known as a ‘zero care subsidy reduction’ during a defined period because the respondent did not process his application in a timely way. The respondent has rejected this contention. I shall set out the facts in greater detail in due course.
PROCEDURAL BACKGROUND
As a background matter, I note that Mr Hudson’s application was first listed before a former member of the Administrative Appeals Tribunal under the then applicable Administrative Appeals Tribunal Act 1975 (Cth). The hearing was adjourned when the member asked the respondent to consider certain matters. I need not set out these matters.
The member resigned before completing the hearing. I was appointed by the President to take over the hearing.[1] The Administrative Appeals Tribunal Act 1975 (Cth) was subsequently repealed and superseded by the Administrative Review Tribunal Act, 2024, and the matter is now being finalised under this Act.[2]
[1] Under s 19D(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
[2] Under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Schedule 16, Item 24.
STATEMENT OF CONCLUSION
I have decided to affirm the decision under review. I set out below the background facts and then my reasons for this conclusion.
FACTS
Mr Hudson was born in 1936 and was 84 years of age at the date of the resumed hearing before me. Both he and his wife had purchased home care packages from a provider called ‘Avivo’. Mr Hudson applied for Government assistance in relation to his package, which I understand to be provided in the form of a subsidy. Assistance from the Government is both asset-tested and income-tested. Mr Hudson filled out and lodged the requisite form (numbered SA456) although he omitted to sign it.[3] The Government file suggests that this document was received on 7 April 2020.[4] From 2 June 2020, Mr Hudson began receiving a home-care package from Avivo.
[3] Ex 2, 287ff.
[4] Ex 2, 262.
The Department requested further information from Mr Hudson concerning his level of income. This letter was dated 8 June 2020.[5] On 9 June 2020, Mr Hudson submitted a further form with supporting documents. I assume these two letters crossed in the post. Further letters requesting additional information were sent by the Department to Mr Hudson on 29 June 2020[6] and on 13 August 2020.[7]
[5] Ex 3, 1-2.
[6] Ex 3, 3.
[7] Ex 2, 476.
The respondent maintained before me that the Department did not receive formal written answers to this correspondence before it made its decision on 16 October 2020 (as to which, see [10] below). I accept that this view was genuinely held. That does not mean, however, that Mr Hudson was somehow at fault. He rightly maintains that he has been diligent in all his communications; and in particular, he maintains that he rang the Department and believed he had provided all necessary information as a result of that inquiry. I accept this evidence. I also accept his evidence that he did not receive the letter of 13 August 2020, but I also accept the respondent’s contention that the letter was posted to Mr Hudson by the Department.
At this point, I need only say that the facts reveal an administrative mix-up. In my opinion, however, it is not necessary for me to assign or apportion responsibility for the mix-up.
Eventually, the Department decided that in the absence of information it needed from Mr Hudson to finalise his application – or at any rate in what it took to be an absence – it should set his fees at the maximum amount for his level of care. He was notified of this outcome by letter dated 16 October 2020.[8] Mr Hudson accepts that he received this letter. The critical part of the letter advises Mr Hudson that the Department had not received his income details, and that as a result the Department was not able to work out his home care fees, and would, therefore, allow fees to be charged to him by his provider at the maximum level. The dollar amounts are specified in the letter.
[8] Ex 3, 5.
It is agreed that Mr Hudson did provide further relevant information on 4 December 2020, and it would appear Mr Hudson provided the income details that may have been missing. Mr Hudson was then notified of a further decision having regard to this information. This information did not lead to any reduction in his fees, and he was assessed again at the maximum rate by letter dated 23 March 2021.[9] Mr Hudson received this correspondence.
[9] Ex 3, 8. The fees had edged up in line with a cost-of-living adjustment by this time.
REASONS
Mr Hudson was not legally represented, and I shall state my reasons as concisely and plainly as I can.
The legal framework is relevantly as follows. Section 48-8 of the Act provides that a care subsidy reduction is ‘taken to be’ zero during a ‘payment period’ if the care recipient falls within a class of people specified in what are called the ‘Subsidy Principles’.[10] The only relevant class of recipient appears in section 88(1)(b) of the Principles. This class comprises ‘care recipients who are not, within six months of receiving home care, informed of the care recipient’s care subsidy reduction’. This category of recipient automatically receives a zero reduction in their care subsidy from the Commonwealth (because the assessment has not taken place within the stipulated six-month period).
[10] Subsidy Principles 2014 made by legislative instrument under s 96-1 of the Act.
Mr Hudson accepted before me that the level of his income and assets meant that the Department’s assessment in its letter of 16 October 2020 by letter was correct.[11] As I understood his argument to me, he maintains, however, that the Department did not reach and communicate an informed[12] decision on his entitlement until 23 March 2021. In this circumstance, the Act (read in conjunction with section 88(1)(b) of the Subsidy Principles) deemed him to be entitled to a ‘zero care subsidy reduction’, which means that he should receive the maximum subsidy. This entitlement continued, in accordance with section 88(2) of the Subsidy Principles, until the date he was notified of the subsidy reduction by letter dated 23 March 2021.
[11] See, for example, Ex 4, 7 and 12.
[12] The decision communicated by the letter of 16 October 2020 was not an informed decision because it was not based on an assessment of Mr Hudson’s actual income.
The respondent submits that the Department made a decision by its letter of 16 October 2020, which is less than six months after Mr Hudson began receiving his home care package on 2 June 2020. The respondent concedes that this decision was made without necessary information. Nevertheless, the respondent submits that the Department informed Mr Hudson of a care subsidy reduction by this letter and that is sufficient for the purposes of applying section 88(1)(b) of the Subsidy Principles. Moreover, the conclusion reached in the departmental assessment was in fact appropriate, even if fortuitously so. The respondent submits, therefore, that section 88(1)(b) of the Subsidy Principles does not apply.
I accept the respondent’s submission. If the Department had not advised its decision by 1 December 2020,[13] Mr Hudson would be correct in his contention. That is not the case, however. Mr Hudson’s submission that the departmental assessment was made without full information is correct. The Department indicated expressly in its letter of 16 October 2020 that it had made its decision on the basis of incomplete information. But it had made a decision, and, to the extent it is relevant, the Department had made the correct decision. By that, I mean the Department made the decision that it ought to have made had it had in its possession all necessary information.
[13] 1 December 2020 is the last day at the end of six months following the commencement of Mr Hudson’s home care package on 2 June 2020.
The respondent accepts that, by way of contrast, Mr Hudson’s spouse’s care subsidy reduction was advised to her by letter dated 20 December 2020, which was more than six months after the date she first received began receiving a care package. She is accepted to have fallen within section 88(1)(b) of the Subsidy Principles. I accept the respondent’s submission, however, that the couple’s two packages were assessed separately; and that Mr Hudson’s entitlement to Commonwealth financial assistance was, in fact, assessed by letter dated 16 October 2020.
Finally, I have stepped back from the technicalities of this appeal and asked myself whether there has been an injustice to Mr Hudson in substance. I accept that Mr Hudson genuinely feels that the process of applying for Commonwealth assistance is unnecessarily burdensome and that the form-filling was extremely onerous. He has found interactions with the Department cumbersome. He maintains that there is a degree of bureaucratic insensitivity in the way the Department interacts with older Australians who are trying bona fide to negotiate the complexities of the Commonwealth system while facing considerable health challenges. He has also found the Department dilatory. I accept the force of much of what Mr Hudson has put to me in this regard.
In my opinion, however, it cannot be said that Mr Hudson has suffered any financial injustice. On the information before me, and leaving aside the question of whether an assessment was made within six months of his having begun the Avivo home care package, Mr Hudson was never entitled to a zero care subsidy reduction, nor was his wife. Their level of income and assets was simply too high. So there is no financial injustice that Mr Hudson can point to in this regard. He is, of course, entitled to what the Act (when read with the Subsidy Principles) allows a person when the Department fails to make an assessment within the stipulated timeframe; but in Mr Hudson’s case, that failure did not occur.
FORMAL DECISION
My formal decision will be to affirm the decision under review.
NUMBERING OF EXHIBITS
I have numbered the exhibits in this matter as follows:
Respondent’s Statement of Facts, Issues and Contentions  Ex. 1
‘T’ Documents  Ex. 2
Supplementary ‘T’ Documents  Ex. 3
Applicant’s Reply  Ex. 4
Applicant’s Letter dated 9.10.23 with enclosures  Ex. 5
Respondent’s submissions via email dated 9.10.23 Ex. 6
Respondent’s further submissions via email dated 18.10.23 Ex. 7
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta.
……………..[sgnd]…………….
Associate
Dated: 4 March 2025
Date of Resumed Hearing: 23 October 2024

Applicant’s Representative

Self-Represented

Respondent’s Representative

D Jones-Bolla

Sparke Helmore