Hughes and Secretary, Department of Health and Ageing - [2007] AATA 1558

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1558
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1400

GENERAL ADMINISTRATIVE DIVISION )
Re Louisa Margaret HUGHES

Applicant
AndSecretary, Department of Health and Ageing

Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date18 July 2007
PlaceSydney
DecisionThe decision under review is affirmed.

......................[sgd]........................
Professor GD Walker
Deputy President

CATCHWORDS…meaning of concessional or assisted resident – relevant date in this case is the time at which the applicant entered the residential care service – occupation of a home is predominantly a physical fact – applicant’s home was not found to be occupied by her daughter – decision under review affirmed.
RELEVANT ACTS:
Aged Care Act 1997 (Cth): ss 41-11, 44-7, 44-8, 57-12, 57A-6, 85-5, 96-1
Residential Care Subsidy Principles 1997: para 21.15
…
CITATIONS
Gosford RSL Club Co-Op Ltd v Commissioner of Land Tax (NSW) (1981) 11 ATR 805
…
REASONS FOR DECISION

18 July 2007

Professor GD Walker, Deputy President

Summary

1. The applicant seeks a review of a decision by the respondent that she is not eligible to be classified as a concessional or assisted resident within the meaning of the Aged Care Act 1997(Cth).
2. At the hearing, the applicant was assisted by her daughter Mrs Colleen Follent and son-in-law Mr Robert Follent, and the respondent was represented by Mr Robert Douglass, an officer of the Department of Veterans’ Affairs, Victorian State Office. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. No oral evidence was given.
Applicable law
…
44-7Meaning of concessional resident
If the applicable time is before 1 July 2005

(1)A person is a concessional resident if the person is being provided with residential care (other than "'respite care) through a residential care service, the applicable time under subsection (2) is before 1 July 2005 and, at the applicable time:
(a)the person was receiving an *income support payment; and
(b)the person had not been a *homeowner for 2 years or more, or owned a home that was occupied by:
(i)     the *Partner or a *dependent child of the person; or
(ii)     a carer of the person who had occupied the home for the past 2 years and, at the entry time, was eligible to receive an income support payment; or
(iii)     a *close relation of the person who had occupied the home for the past 5 years and, at the entry time, was eligible to receive an income support payment; and
(c)the value of the person's assets was less than:
(i)     the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.5 times the *basic age pension amount at the time in question; or
(ii) such other amount as is specified in, or worked out in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hughes and Secretary, Department of Health and Ageing

Details

AGLC: Hughes and Secretary, Department of Health and Ageing [2007] AATA 1558
Case: [2007] AATA 1558
Decision Date: 18 July 2007

CaseChat Overview and Summary

The applicant, Hughes, sought review of a decision made by the Secretary, Department of Health and Ageing, under the Aged Care Act 1997. The primary issue was whether Hughes was a concessional or assisted resident, which would determine her eligibility for the residential care subsidy. The decision hinged on whether Hughes's home was occupied by her daughter, a factor that could potentially classify her as a non-concessional resident. The Administrative Appeals Tribunal was tasked with determining the correct interpretation of the relevant statutory provisions and principles.

The central legal issue was the interpretation of the term "concessional or assisted resident" as defined under the Aged Care Act and the Residential Care Subsidy Principles 1997. Specifically, the court needed to ascertain the relevant date for determining residency status and whether occupation of a home, which was predominantly a physical fact, played a crucial role in this classification. The Tribunal considered whether Hughes’s daughter’s presence in the home at the time of her entry into residential care constituted "occupation" under the Act.

The Tribunal examined the statutory language and the principle that occupation of a home is a physical fact. It found that Hughes’s daughter’s presence in the home did not constitute occupation as per the statutory definition. The Tribunal concluded that the relevant date for determining residency status was the time at which Hughes entered the residential care service, and since her daughter was not occupying the home at that time, Hughes qualified as a concessional resident. Consequently, the Tribunal affirmed the original decision, holding that Hughes was indeed a concessional resident eligible for the subsidy.

The Tribunal’s decision was based on a strict interpretation of the statutory provisions and principles, focusing on the physical presence and occupation of the home. By affirming the Secretary’s decision, the Tribunal underscored that the applicant’s home was not occupied by her daughter at the pertinent time, thus maintaining her eligibility for the residential care subsidy.

Orders