May and Secretary, Department of Health

This matter concerned an appeal by Mr May, a residential aged care recipient, against a decision by the Aged Care Resolution Officer (ARO) regarding the assessment of his assets for the purpose of calculating his fees and charges. The dispute centred on whether Mr May's interest in a property, held as a joint tenant, should be treated as an assessable asset, despite his lack of financial contribution to its acquisition.

The primary legal issue before the Tribunal was to determine whether Mr May's registered legal interest as a joint tenant in the property constituted an assessable asset for the purposes of calculating his aged care fees. This involved considering the application of provisions within the *Aged Care Act 1997* and related principles, particularly concerning the treatment of jointly owned property and the exclusion of a principal home from asset assessments in certain circumstances. The Tribunal also considered an additional issue raised post-hearing regarding whether a legal interest in a property is always considered an asset if beneficial ownership is not held.

The Tribunal reasoned that in South Australia, the Certificate of Title is proof of a person's interest in property, and as Mr May was registered as a joint tenant, he held an equal interest with the other joint tenants. Evidence indicated an intention that Mr May would have both a legal and beneficial interest in the property, particularly as a provision for his parents in the event of the death of the other joint owners. While acknowledging a hardship determination had been made for a period due to the property being an unrealisable asset, the Tribunal found that Mr May's status as a joint tenant gave him a one-third interest in the property following his wife's death. The Tribunal noted that the exclusion provisions for a principal home did not apply as the other residents were not eligible for income support payments.

The Tribunal varied the decision under review. It found that Mr May's interest in the property was to be treated as an assessable asset. However, the Tribunal noted that the value of this interest for the period after the hardship determination had become moot and would be subject to a separate determination by the Department. The Tribunal also raised a significant issue regarding Mr May's actual legal entitlement to the proceeds of the property sale, given his lack of contributions and the existing understanding.