McKenzie-McHarg and Secretary, Department of Health

McKenzie-McHarg and Secretary, Department of Health [2022] AATA 168 (7 February 2022)
Division:GENERAL DIVISION
File Number: 2019/7620
Re:Michael McKenzie-McHarg
APPLICANT

AndSecretary, Department of Health
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:7 February 2022
Place:Melbourne

The Tribunal sets aside the Decision Under Review and remits this matter to the Respondent for reconsideration with directions that the Respondent redetermine the value of the Applicant’s assets under s 44-26C(1) of the Aged Care Act 1997 (Cth) as of 13 February 2019, on the bases that:
1.s 44.26A of the Aged Care Act 1997 (Cth) did not apply as of 13 February 2019, and the Applicant’s principal home at Address A (see paragraph [1] of these Reasons for Decision), is not to be disregarded and is to be taken into account; and
2.the value of the Applicant’s principal home at Address A was $460,000 as of 13 February 2019, or the Applicant’s assets in general, will not be reduced by the value of an alleged loan Mr Andrew Young claims to have made to the Applicant in 2007 of $350,000, or alleged accrued interest of $166,691.75.

................ .....[sgd]...................................................
Member K. Parker
Catchwords
AGED CARE – determination of value of Applicant’s assets under s 44.26C of the Aged Care Act 1997 (Cth) for purpose of calculating means-tested care fees – whether Applicant’s principal residence should be disregarded – application of s 44.26A(6)(b) – whether carer occupied principal residence with Applicant during two-year period before Applicant entered residential aged care – whether alleged $350,000 loan made to Applicant as claimed by his representative and if so, whether claimed interest accrued on that alleged loan – insufficient verifiable and objective documentary evidence – false evidence given to Tribunal – credibility issues – Decision Under Review set aside and remitted with directions that Applicant’s principal home not to be disregarded when determining the value of his assets, and not to be reduced by the value of an alleged loan and alleged accrued interest because the Tribunal has found that the alleged loan was not made to the Applicant as claimed by his representative
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Aged Care Act 1997 (Cth)
Social Security Act 1991 (Cth)
Secondary Materials
Subsidy Principles 2014
Aged Care (Subsidy, Fees and Payments) Determination 2014
REASONS FOR DECISION
Member K. Parker
7 February 2022
INTRODUCTION

This application was lodged by Mr Andrew Young, on behalf of the Applicant,[1] seeking review of a decision by a Centrelink authorised review officer (ARO) made on 30 August 2019 (Decision Under Review).[2] The ARO varied a determination made by Centrelink on 26 August 2019 of the value of the Applicant’s assets under s 44.26C(1) of the Aged Care Act 1997 (Cth) (Aged Care Act).[3] The Applicant’s primary asset is a three-bedroom residential home situated in an outer suburb of Melbourne, Victoria, at Address A.[4] The value of a person’s assets is used to calculate their “care subsidy reduction,” “residential care subsidy”, and ultimately, their means-tested care fees, when they enter an aged care facility, as the Applicant did on 13 February 2019.
[1] Centrelink appointed Mr Young as the Applicant’s correspondence nominee as from 8 November 2019 – refer T-Documents T18/118 & 119. The T-Documents and ST-Documents are described in paragraph [21] of these Reasons for Decision.
[2] Refer T-Documents T2.
[3] Refer T-Documents T19/131-132.
[4] The Tribunal has included the full details of Address A in a Confidential Annexure to this Decision, due to Mr Young’s concerns about the details of his current place of residence being made publicly available.
The Tribunal’s jurisdiction to review this decision arises under s 85.8 of the Aged Care Act.
BACKGROUND
The Tribunal has before it an executed and witnessed Enduring Power of Attorney (Financial) dated 12 June 2012[5] and Enduring Power of Attorney (Medical) dated 4 March 2011.[6] Mr Young was appointed by the Applicant under those instruments as his Agent. Mr Young lodged this application for review on behalf of the Applicant and represented him in this proceeding. Mr Young informed the Tribunal that the Applicant suffers from dementia and entered residential aged care as a permanent resident on 13 February 2019 at Aged Care Facility A.[7]
[5] Refer T-Documents T4/16-21.
[6] Refer T-Documents T4/22.
[7] The Tribunal has omitted the address from these Reasons for Decision, due to Mr Young’s concerns about being able to be traced by third parties.
Landata title search records show that the Applicant wholly owns the residential property at Address A.[8]
[8] Refer Exhibit THD2.
Mr Young contends that the Applicant’s means-tested care fee should be recalculated as from 13 February 2019. The Tribunal understands the case that Mr Young is putting to the Tribunal as having two limbs:
(a)the first limb is that the residential property at Address A should be disregarded for the purpose of assessing the value of the Applicant’s assets, on the basis that subsection 44.26A(6)(b) of the Aged Care Act applies, because during the relevant two-year period preceding the Applicant’s entry into Aged Care Facility A, that is, from 13 February 2017 to 12 February 2019 (Two-Year Period), Mr Young claims that he occupied the residence at Address A, was the “carer” of the Applicant and was qualified to receive an “income support payment” at the time; and
(b)the second limb is that the assessed value of the Applicant’s home should be reduced by the value of a loan in the sum of $350,000 that Mr Young claims to have made to the Applicant in 2007 (Alleged Loan), plus interest of $166,691.75 which Mr Young claims has accrued on the Alleged Loan since 2007 (Alleged Interest).
For the reasons set out below, the Tribunal sets aside the Decision Under Review and remits this matter to the Respondent for reconsideration with directions that the Respondent redetermine the value of the Applicant’s assets under s 44-26C(1) of the Aged Care Act 1997 (Cth) as of 13 February 2019, on the bases that:
(a)s 44.26A of the Aged Care Act 1997 (Cth) did not apply as of 13 February 2019, and the Applicant’s principal home at Address A (see paragraph [1] of these Reasons for Decision), is not to be disregarded and is to be taken into account; and
(b)the value of Applicant’s principal home at Address A was $460,000 as of 13 February 2019, or the Applicant’s assets in general, will not be reduced by the value of an alleged loan Mr Young claims to have made to the Applicant in 2007 of $350,000, or alleged accrued interest of $166,691.75.
It was not in dispute between the parties, and the Tribunal finds, that:
(a)the Applicant entered residential aged care at Aged Care Facility A on 13 February 2019;[9] and
(b)prior to 13 February 2019, the Applicant resided in a property, wholly owned by him, situated at Address A.[10]
[9] Refer T-Documents T9/32.
[10] Refer Transcript Day 2 at P-14 and P-15. A Landata title search result issued on 6 January 2022 verifies that the Applicant has been the sole registered proprietor of Address A since 5 September 1994.
However, the Respondent does not accept that Mr Young occupied the property at Address A during the Two-Year Period, or that there is sufficient evidence of the Alleged Loan. Mr Young claims that he had occupied the property at Address A for this period and indicated to the Tribunal during the hearing, that he still lived there.
On 5 June 2019, Centrelink wrote to the Applicant at Address A advising that his assets had been assessed at $175,174.20 and that his net fortnightly income was $875.95.[11] The Assets Summary Statement attached to this letter lists the Applicant’s “Net asset total” as $486,823 comprising:
(a)Your Principal Home - $480,000;
(b)Financial Accounts (e.g., bank accounts, term deposits, bonds, debentures, money on loan) - $823; and
(c)Other Assets (e.g., motor vehicles, life assurance policies, household furniture and personal effects) - $6,000.
[11] Refer T-Documents T14/101 &102.
The Applicant’s “assessed assets” totalling $175,174.20 included a note that provided that only part of the value of the Applicant’s principal home is included. The value of the Applicant’s principal home, for the purpose of calculation of the residential care subsidy, was capped at $168,351.20.
Interactions between Mr Young and Centrelink continued between June 2019 and August 2019. The Centrelink records show that Centrelink continued to request further supporting information from Mr Young about his residential circumstances, his income from Workcover and details of any mortgage or loan over the residence at Address A. It is evident from the Centrelink records of those communications, that there were difficulties with such information being provided by Mr Young. In a Centrelink entry on 20 August 2019, it notes that Mr Young had advised Centrelink that the loan of $350,000 was a “private loan and not a mortgage”.[12]
[12] Refer T-Documents T19/129.
On 26 August 2019, Centrelink decided that the Applicant’s principal residence at Address A would be taken into account in determining the value of his assets (Original Decision).[13] The Centrelink record on 26 August 2019 notes that:
(a)the documentation did not support a finding that Mr Young had been living at the residence at Address A;
(b)Mr Young had not been in receipt of income support payments since 2012, and was not eligible to receive such payments on the Applicant’s admission date; and
(c)the loan from Mr Young was not a loan that was taken out to purchase the property, and it could not be taken off the value of the property or the aged care assessment.
[13] Refer T-Documents T19/130.
Mr Young, on behalf of the Applicant, sought review of the Original Decision.
On 30 August 2019, an ARO decided to vary the Original Decision (Decision Under Review).[14]
[14] Refer T-Documents T1/5-7.
The ARO affirmed one aspect of the Original Decision, namely, the house at Address A was not to be disregarded for the purpose of assessing the value of the Applicant’s assets. The ARO did so on the basis that he considered that Mr Young was not qualified to receive an income support payment and did not meet the legislative requirements as a “protected person”. The ARO gave instructions to record the value of the home as $460,000.
However, the ARO was not satisfied that the Original Decision to count the full value of the residence at Address A was correct and, instead, decided that the Alleged Loan should be factored into the assessment of the value of the Applicant’s assets.[15] Instructions were given by the ARO to “amend record to show loan of $350,000 exists against principal home”.[16]
[15] Refer T-Documents T1/5.
[16] Refer T-Documents T19/137.
Mr Young, on behalf of the Applicant, sought review of the Decision Under Review by the Tribunal. Mr Young completed an Administrative Appeals Tribunal Application for Review form and lodged it with the Tribunal on 20 November 2019, stating the reason for why the Decision Under Review was not correct, as follows:[17]
The loan on the house of $350,000 plus Inter so there would not be any funds left so the house should be taken out of Michael McKenzie-McHarg asset. This has been going on since March.
[17] Refer T-Documents T1.
On 18 March 2020, Mr Young submitted a one-page document comprising Mr Young’s calculations of the Alleged Interest (Interest Calculations). In the Interest Calculations, Mr Young applied an interest rate of three percent per annum, calculated annually over a period of 13 years. Mr Young calculated that the total interest accrued to him under the Alleged Loan was $166,691.75 and that the total outstanding loan balance, as of 2019, was “$516,691.775” (sic). No explanation appeared in the Interest Calculations document for the basis upon which Mr Young claimed a right to receive interest from the Applicant under the Alleged Loan, or specifically, why the interest rate of three percent, calculated annually, was used by Mr Young in his calculations.
Mr Young sent a lengthy email submission to Centrelink and the Tribunal on 17 August 2020 stating that:
(a)Mr Young’s care for the Applicant would be ongoing, despite him now residing in a residential aged care facility;
(b)there are no loan documents pertaining to Mr Young’s “personal loaning of funds” to the Applicant because “he is considered to be family to me and all transactions were done personally”; and
(c)Mr Young had no record of personal or company banking transactions and many other personal documents from that period of time, due to his “ex-wife taking all of them”.
The Tribunal has also considered:
(a)an email sent by Mr Young to the Tribunal on 21 April 2021, containing further submissions and raising a number of concerns; and
(b)other written submissions by Mr Young pre-dating this application for review, as contained in the documents lodged by the Respondent with the Tribunal.
The Respondent lodged with the Tribunal:
(a)the Respondent’s Statement of Facts, Issues and Contentions dated 16 December 2020 (Respondent’s SFIC);
(b)two further supplementary submissions both dated 29 April 2021 – one relating to the property search documents (Respondent’s First Supplementary Submission) and the second relating to the Alleged Loan (Respondent’s Second Supplementary Submission);
(c)further supplementary submissions dated 25 January 2022 in relation to the rental history of the property at Address A (Respondent’s Third Supplementary Submissions);
(d)a set of documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents); and
(e)a further set of documents under s 38AA (Supplementary T-Documents).
This proceeding was adjourned a few times following adjournment requests made by Mr Young on the basis of Mr Young’s report to the Tribunal that he suffered from post-traumatic stress disorder and that he would be attempting to secure legal representation. Mr Young said he had tried to secure legal representation for the Applicant, which included an application to Legal Aid, but without success. Mrs Kate Young (nee Ms Kate Biznieks) had been with Mr Young “throughout this whole process”, because Mr Young does “not read and write very well” and has been dyslexic since he was a young person.[18] Mrs Young also informed the Tribunal that Mr Young does not “process appropriate emotions most of the time” and “does get very heated very quickly”, which she said was “part of this disorder”.[19]
[18] Ibid at P-9, P-10.
[19] Ibid at P-10.
The Tribunal indicated to the parties that this application had been lodged in 2019, mindful of its obligations under s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) to deal with applications before it in a timely manner. The Tribunal informed the parties that it was content for Mr Young to be assisted in this proceeding by Mrs Young. At the time of the hearing, Mrs Young was engaged to Mr Young. Mrs Young is now Mr Young’s wife, consistent with an indication by Mrs Young on the first day of the hearing they were due to be married in April 2021.[20]
[20] Refer Day 1 Transcript at P-3.
The hearing of this application took place over two days with a lengthy adjournment in between the two hearing days (Hearing Adjournment). The Hearing Adjournment took place to allow an opportunity for Mr Young to make any requests for summonses to be issued to third parties, requesting that they provide certain supporting documentation. The Tribunal placed Mr Young on notice on the first day of the hearing that it considered the existing documentation lodged by Mr Young in support of the Applicant’s case was deficient, and that the Hearing Adjournment would provide him with an opportunity to fill the apparent evidentiary gaps.
The Applicant was not in attendance at the hearing, nor was he called as a witness. Mr Young confirmed that the Applicant was living at Aged Care Facility A.[21] Mr Young told the Tribunal that he had made this application to represent his “friend”, the Applicant.[22] Mr Young said the Applicant was “not in a fit state to know what is going on”.[23] Mrs Young also addressed the Tribunal on the first day of the hearing. She explained that she was an allied health professional, diversional therapist and worked in aged care. She said that based on her assessment and that of the treating hospital, the Applicant was assessed to go into a home with advanced dementia.
[21] The Tribunal has omitted the name of the aged care facility given Mr Young’s concerns about his residential address being publicly available.
[22] Refer Day 1 Transcript at P-5.
[23] Ibid.
LEGISLATIVE FRAMEWORK
The Aged Care Act governs the level of contribution made by the Commonwealth Government to a person’s residential aged care fees, known as the means-tested care fee. A “residential care subsidy” is determined for eligible residents under Division 43 of the Aged Care Act.
The residential care subsidy for a care recipient is calculated using the residential care subsidy calculator set out in s44.2 of the Aged Care Act. The residential care subsidy for a care recipient is worked out using the following method:
Residential care subsidy calculator
Step 1.            Work out the basic subsidy amount using Subdivision 44-B.
Step 2.        Add to this amount the amounts of any primary supplements worked out using Subdivision 44-C.
Step 3.         Subtract the amounts of any reductions in subsidy worked out using Subdivision 44-D.
Step 4.         Add the amounts of any other supplements worked out using Subdivision 44-F.
The result is the amount of residential care subsidy for the care recipient in respect of the payment period.
The basic subsidy amount is determined by legislative instrument depending on the level and type of care being provided and based on an appraisal of the resident’s care needs – see s 44.3 of the Aged Care Act. The primary supplements are also determined by the Minister by legislative instrument – see s 44.4 of the Aged Care Act.
The sum of the basic subsidy and any primary supplements is reduced by the “reductions in subsidy” and they are worked out in accordance with s 44-D of the Aged Care Act. One such reduction in subsidy is the “care subsidy reduction” which is calculated in accordance with ss 44.21 and 44.23 of the Aged Care Act.
Section 44.21 provides that the care subsidy reduction for the care recipient is the sum of “all the care subsidy reductions” on the days the recipient is provided with residential care and is worked out using the “care subsidy reduction calculator” in subsection 44.21(2) as follows:
Care subsidy reduction calculator
Step 1.        Work out the means tested amount for the care recipient (see section 44-22).
Step 2.         Subtract the maximum accommodation supplement amount for the day (see subsection (6)) from the means tested amount.
Step 3.         If the amount worked out under step 2 does not exceed zero, the care subsidy reduction is zero.
Step 4.        If the amount worked out under step 2 exceeds zero but not the sum of the following, the care subsidy reduction is the amount worked out under step 2:
(a)     the basic subsidy amount for the care recipient;
(b)     all primary supplement amounts for the care recipient.
Step 5.        If the amount worked out under step 2 exceeds the sum of the following, the care subsidy reduction is that sum:
(a)     the basic subsidy amount for the care recipient;
(b)     all primary supplement amounts for the care recipient.
Annual and lifetime caps apply to the care subsidy reduction and those amounts are prescribed by legislative instrument – see subsections 44.21(7) and (8) of the Aged Care Act.

The “means tested amount” for a care recipient will be the amount worked out in accordance with s 44.22(1) of the Aged Care Act and constitutes the sum of the “income tested amount” and the “per day asset tested amount”.
The first step of working out the ‘“per day asset tested amount” is to work out the value of the care recipient’s assets using s 44.26A of the Aged Care Act.[24]
[24] Refer Step 5 of the “means tested income calculator” in subsection 44.22(1) of the Aged Care Act.
Subsection 44.26A(1) of the Aged Care Act provides that the value of a care recipient’s assets is to be worked out in accordance with the “Subsidy Principles”. The Subsidy Principles are contained in a legislative instrument made by the Minister entitled Subsidy Principles 2014 – see Item 22A in s 96.1 of the Aged Care Act.
Of particular relevance to this application, subsection 44.26A(6) of the Aged Care Act establishes an exemption in certain circumstances whereby a care recipient’s home will not be counted. This subsection provides as follows (bold emphasis added):
(6) In working out the value at a particular time of the assets of a person who is or was a * homeowner, 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; or
(c) a * close relation of the person who:
(i) had occupied the home for the past 5 years; and
(ii) was eligible to receive an *income support payment at the time.
Section 47.1 of the Subsidy Principles 2014 (Subsidy Principles), and s 44.26A of the Aged Care Act, provide that the value of a person’s assets is the value worked out in accordance with Division 1 of Part 3.12 (Pension Rate Calculator A) of the Social Security Act 1991 (Cth) (SS Act). Module G, contained within the rate calculator, sets out the assets test. The first step involves working out the value of a person’s assets.
The term “assets” is defined by s 11 of the SS Act. Subsection (2) provides that
Step 1. Work out the value of the person's assets.
Note 1:…
Note 2:For the assets that are to be disregarded in valuing a person's assets see section 1118.
Note 3:For the valuation of an asset that is subject to a charge or encumbrance see section 1121.
However, subsection 47(2)(a) of the Subsidy Principles provide that certain sections of the SS Act do not apply, including s 1118(1)(a) of the SS Act which provides as follows:
(1) In calculating the value of a person’s assets for the purposes of this Act …, disregard the following:
(a) if the person is not a member of a couple - the value of any right or interest of the person in the person’s principal home that is a right or interest that gives the person reasonable security of tenure in the home…
Subsection 44.26A(7) of the Aged Care Act caps the value of a home when it is counted as an asset, as follows:
(7)In working out the value at a particular time of the assets of a person who is or was a *homeowner, disregard the value of a home to the extent that it exceeded the *maximum home value in force at that time.[25]
[25] Subsection 44.26B(1) of the Act relevantly states:
homeowner has the meaning given by the Subsidy Principles.
maximum home value means the amount determined by the Minister by legislative instrument.
Clause 1 of Schedule 1 to the Aged Care Act defines the terms homeowner and maximum
home value as follows:
SFIC
homeowner has the meaning given in section 44-26B.
maximum home value has the meaning given by section 44-26B
Subsection 47(3) of the Subsidy Principles states:
(3) For subsection 44-26A(7) of the Act, the value of a home is the value worked out after applying this section.
Subsection 48(1) of the Subsidy Principles relevantly states:
(1) For the definition of homeowner in subsection 44-26B(1) of the Act:
(a) a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person’s principal home; and
(ii) the person’s right or interest in the person’s principal home gives the person reasonable security of tenure in the home;
Section 4 of the Subsidy Principles defines the term principal home as follows:
principal home has the meaning given by section 11A of the Social Security Act other than subsections 11A(8) and (9) (which deal with the effect of absences from the principal home).
Subsections 11A(1) and (9) of the SS Act provide as follows:
(1) A reference in this Act to the principal home of a person includes a reference to:
(a) if the principal home is a dwelling-house - the land adjacent to the dwelling-house to the extent that…
(9) A residence of a person is to be taken to continue to be the person’s principal home during:
(a) any period (not exceeding 12 months or any longer period determined under subsection (9A)) during which the person is temporarily absent from the residence; and
(b) if the person is in a care situation or residential care - the period of 2 years beginning when the person started to be in a care situation or residential care; and
(c) any period during which:
(i) the person is in a care situation or residential care…
The Aged Care (Subsidy, Fees and Payments) Determination 2014 as of 1 June 2019, prescribed the amount of the maximum home value for a care recipient’s principal home as being $168.351.20. This prescribed amount will vary from time to time. As of 20 September 2021, the prescribed cap was increased to $175,239.20.
ISSUES
The primary issue that arises in this application is upon what bases, the value of the Applicant’s assets should be determined under s 44.26C of the Aged Care Act.
The sub issues arising for determination in the circumstances of this application are:
(a)whether s 44.26A(6) of the Aged Care Act applied to the Applicant as of 13 February 2019 and whether his principal home at Address A is to be disregarded when determining the value of the Applicant’s assets. This will require the Tribunal to make findings about whether the Tribunal is satisfied that Mr Andrew Young:
(i)was a “carer” of the Applicant during the Two-Year Period;
(ii)if so, whether he occupied the residence at Address A during the Two-Year Period; and
(iii)if so, whether he was eligible to receive an “income support payment” at this time; and
(b)if the Tribunal finds that the home is not to be disregarded under s 44.26A(6) when working out the value of the Applicant’s assets, whether the value of the Applicant’s home, or his assets in general, should be reduced by the sum of the Alleged Loan, plus the Alleged Interest. This will require the Tribunal to make findings about whether the Alleged Loan was made to the Applicant and if so, whether interest accrued on the Alleged Loan at the rate of three percent, calculated annually, as claimed by Mr Young.
CONSIDERATION
Does s 44.26A(6) of the Aged Care Act apply as of 13 February 2019?
Was Mr Young a “carer” of the Applicant?
Mr Young gave evidence that he has been the Applicant’s “carer” on a longstanding basis, including during the Two-Year Period.
Before the second day of the hearing closed, Mrs Young told the Tribunal that she had been witness to the care that Mr Young had provided to the Applicant. Mrs Young said it was “only upon her professional opinion and advice”, and in recognition of the Applicant’s failing mental and physical health, that the Applicant was placed in full-time care.[26] Mrs Young said she had been “instrumental” in the Applicant’s care, and advice to Mr Young to move forward with the Applicant’s care and admission to a full-time care facility.[27] Mrs Young disclosed for the first time that she was employed by Aged Care Facility A, being the same facility at which the Applicant was residing.[28] Mrs Young stated this was why the Applicant was placed at Aged Care Facility A, so that she could “supervise and monitor” the Applicant’s care and “to continue his care outside of the facility”.[29]
[26] Refer Day 2 Transcript at P-32.
[27] Ibid.
[28] Ibid.
[29] Ibid.
During the Hearing Adjournment, Mr Young lodged a handwritten witness statement signed on 12 April 2021 by Ms Rebecca Saaghy (Ms Saaghy’s Statement) who made statements about the care Mr Young had provided for the Applicant. It is not clear on the face of Ms Saaghy’s Statement when she first met Mr Young, except that she states she has known him “for a number of years”. For this reason, it is not clear from Ms Saaghy’s Statement that she was a direct witness to the extent to which Mr Young cared for the Applicant during the Two-Year Period, which concluded on 12 February 2019. Ms Saaghy was not called as a witness at the hearing. The Tribunal does not consider Ms Saaghy’s evidence to be probative in relation to the question of whether Mr Young was a “carer” of the Applicant during the Two-Year Period or any other factual issue before the Tribunal for determination. For this reason, it has been disregarded.
Mr Young told the Tribunal that the Applicant was “like a second father” to him, and that he continued to take clothes to the Applicant, pay his bills, take him to medical appointments and had taken the Applicant to his sister’s funeral in late-2020.[30] Mr Young said that the Applicant did not have any children and treated him like a son, and Mr Young’s adult daughter “like a granddaughter”.[31]
[30] Refer Day 1 Transcript at P-3.
[31] Ibid.
In the Respondent’s SFIC, the Respondent contends that it is open to the Tribunal to find that Mr Young was the “carer” of the Applicant as at the date of the Applicant’s admission to Aged Care Facility A on 13 February 2019. The Tribunal finds that Mr Young was the Applicant’s “carer” at that time and during the Two-Year Period.
Did Mr Young “occupy” the residence at Address A during the Two-Year Period?
The Respondent contends that when deciding whether Mr Young occupied the property at Address A during the Two-Year Period, the Tribunal should consider whether Mr Young was living in that residence for most of the time. The Tribunal agrees with this interpretation of subsection 44.26A(6)(b)(i) of the Aged Care Act.
The Respondent contends that Mr Young has not provided “objective, verifiable, third party records (such as bank statements, Australian Taxation Office assessments, or otherwise)” to demonstrate that he occupied the residence at Address A in the Relevant Period.[32]
[32] Refer Respondent’s SFIC at [56].
The Respondent bases its contention that Mr Young did not occupy the residence at Address A during the Two-Year Period, on the following evidence:[33]
[33] Refer Respondent’s SFIC at [55].
(a)Centrelink’s “address history” records Mr Young’s address as:[34]
[34] Refer T-Documents T20/145.
(i)Address C until 15 November 2017;
(ii)Address B from 16 November 2017 to 27 February 2019; and
(iii)Address A from 28 February 2019;
(b)a Centrelink “Accommodation history” showing that Mr Young was paid rent assistance in the following periods:[35]
(i)9 February 2017 to 27 December 2017; and
(ii)28 June 2018 to 31 December 2018;
(c)Mr Young’s ANZ Access Advantage bank statement for the period 21 December 2018 to 22 February 2019 listing Mr Young’s address as Address C;[36]
(d)a letter from X-changing to Mr Young dated 4 February 2019 listing Mr Young’s address as Address C;[37] and
(e)Mr Young’s DSP claim form dated 25 January 2019 listing Mr Young’s address as Address B since 17 November 2017.[38]
[35] Refer ST-Documents ST7.
[36] Refer ST-Documents ST9.
[37] Refer ST-Documents ST9.
[38] Refer ST-Documents ST10.
Further to paragraph [55(b)] above, the Tribunal further notes that “Accommodation History” generated on 1 December 2020 relating to Mr Young records that:[39]
[39] Refer first page of ST-Document ST7.
(a)as from 23 October 2013, Mr Young paid weekly rent of $200 for “BOA”, which Mr Noonan informed the Tribunal stands for board and lodging with a recorded sharer status of “LWP”, which stands for living with parents. This record was marked as “VER”, which means verified with a rent certificate;
(b)as from 21 November 2013, Mr Young paid weekly rent of $250 for board and lodging while living with parents, which was marked as not verified;
(c)as from 5 May 2014, Mr Young paid weekly rent of $250 for board and lodging while living with parents, which was verified with a rent certificate;
(d)as from 19 April 2017, Mr Young paid weekly rent of $550 for a private rental with a recorded sharer status of “lives in shared accommodation”, which was not verified with a rent certificate;
(e)as from 16 November 2017, Mr Young paid weekly rent of $250 for board and lodging while living with parents with a recorded sharer status of “change address/change circumstances”;
(f)as from 15 December 2017, Mr Young paid weekly rent of $250 for board and lodging while living with parents, which was not verified by a rent certificate;
(g)as from 2 July 2018, Mr Young paid weekly rent of $250 for board and lodging while living with parents, which was verified by a rent certificate;
(h)as from 2 July 2018, Mr Young paid weekly rent of $250 for board and lodging while sharing accommodation with a homeowner, which was verified with rent certificate; and
(i)as from 28 February 2019, Mr Young is recorded as paying no rent and his status is recorded as not living in shared accommodation.
On 18 February 2019, Mr Young, on behalf of the Applicant, completed a Centrelink form entitled “Permanent Residential Aged Care Request for a Combined Assets and Income Assessment”.[40] Mr Young lists his residential address as Address A, and signed this form on 18 February 2019.
[40] Refer T-Documents T9. It is apparent this assets and income information was not submitted to Centrelink until a later date, based on the letter at T-Document T13 chasing up this information from the Applicant.
The Tribunal notes that a Department of Human Services form entitled “Aged Care Means Test Assessment Carer/Close Relation’s Questionnaire” was completed and signed by Mr Young on 17 June 2019. [41] On this form, question 3 asks, “What is your CURRENT address?”. Mr Young recorded the full details of Address A. Question 4 asks, “How long have you been residing at this address?”. Mr Young answered “2013”.
[41] Refer T-Documents T15.
At the hearing, Mr Young gave evidence about his occupation of the property at Address A as follows:
(a)on the first day of the hearing, the following exchanges took place (emphasis added in bold):[42]
[42] Refer Day 1 Transcript at P-5, P-7.
MR YOUNG: … [The Applicant’s] never married so he’s never had children so he treats me like one of his own son and treats my daughter like his granddaughter. (Indistinct).
MEMBER: Yes, I saw that in the paperwork. Yes.
MR YOUNG: I’m still living in the house that, you know, that I’ve renovated and fixed up for him over the years and all that type of thing.
…
MR NOONAN: … In particular, you’ll note that there seems to be documentation which suggests that you’re not living at [Address A] for the two-year period prior to February 2019 given (indistinct).
MR YOUNG: I’ve been through this before. You’re aware of why my address changed. I’ve always been there. My address changed because Victorian Police were after me. I’m not on the - if you check the Electoral Rolls, I’m anonymity on the Electoral Rolls. Katie is here she can speak on my behalf as well. But you’re well aware of that and this is why I don’t understand why you keep bringing it up. (Indistinct).
(b)on the second day of the hearing, the following further exchanges took place:[43]
MR NOONAN: Yes. So Mr Young, are you saying that from 2010 through to at least February 2019, you lived at that [Address A] for the whole time?
MR YOUNG: Yes, I did.
…
MR NOONAN: … Mr Young, I am reading from a document entitled carer/close relation questionnaire. That’s a document which you signed on 17 June 2019. And in response to the question as to – you’ve said in response to question three, what is your current address? And you said [Address A]. And in response to question four, you say how long have you been residing at this address? And you said 2013. So is it more correct to say that you started living at [Address A], in 2013 rather than 2011?
MR YOUNG: No, I moved in there after I split up with my wife, my daughter and myself moved in there. So exact date I couldn’t tell you off the top of my head, but what’s your point please?
[43] Refer Day 2 Transcript P-16, P-19 & P-20.
Mr Young contacted Centrelink on 3 June 2019 and on this date, the Centrelink representative recorded that:[44]
(a)the Applicant’s home was valued at $480,000 and that this estimate was accepted based on an “online house value site”; and
(b)Mr Young was the Applicant’s carer, however, the “home exemption criteria’” had not been satisfied because Mr Young “only resided with customer since 28/02/2019”.
[44] Refer T-Documents T19/122.
A Centrelink record lodged with the Tribunal dated 19 June 2019 notes that Mr Young advised there had been issues in the past with him recording his home address with Centrelink, and that he was (emphasis in bold added), “happy to provide documents to show he has lived there since 2013”.[45]
[45] Refer T-Documents T19/126.
During the Hearing Adjournment, the Respondent lodged Supplementary T-Documents containing property search documents issued by Landata. Landata is a public land search service offered by Land Use Victoria. At the commencement of the second day of the hearing, Mr Young raised an objection, claiming that Mr Noonan had no right to access those documents and that it was inappropriate for him to do so.
The Tribunal does not accept that it was inappropriate for Mr Noonan to have accessed those documents. They constitute part of a public register relating to property ownership and dealings maintained by the Victorian Government, which is accessible by any member of the public upon payment of a search fee.
Mr Young also contends that the property documents obtained by Mr Noonan are irrelevant to this application. Mr Noonan submits that this information relates to the contentions at paragraph [55] of the Respondent’s SFIC referring to properties for which Mr Young had claimed, and was paid, rental assistance at Address B and Address C.[46] Mr Noonan conceded that the Landata title search for Address C shows that it is owned by two persons (who were third parties unrelated to Mr Young) and as such, is not relevant to this application.[47] Mr Noonan confirmed that the Respondent did not seek to rely upon this document. Accordingly, the Tribunal will disregard the Landata title search document in respect of Address C.
[46] The Tribunal has omitted the addresses of Address B and Address C due to Mr Young’s concerns about being pursued by third parties. Address B is the same address as Address B referred to in paragraph [‎14] of these Reasons for Decision, being the address that Mrs Young resides at.
[47] Refer Day 2 Transcript at P-10.
Regarding Address B, Mr Noonan explained to the Tribunal that this property was the subject of submissions made in paragraph [9] of the Respondent’s SFIC, relating to a caveat lodged by Mr Young over that property (Caveat).[48] Mr Noonan suggests that by Mr Young lodging the Caveat, he was “claiming an interest of some description” over Address B.[49]
[48] Ibid and refer Supplementary T-Document ST12.
[49] Refer Day 2 Transcript at P-10.
The Caveat records that it was lodged by Dingley Conveyancing Services Pty Ltd on behalf of Mr Young on 27 February 2017, on the basis of an agreement between Mr Young and the registered proprietor of Address B dated 31 January 2017.[50] This land title record for Address B records that the registered proprietor is Ms Jacinta McBride.[51]
[50] Refer Supplementary T-Documents ST12.
[51] Ibid.

Mr Young confirmed that Ms McBride is his ex-partner. Mr Young was asked about the Caveat and he said that he had lent some money to his ex-partner “for a property”, at the time the property was purchased.[52] Mr Young confirmed that he had registered a caveat over the property, and that “it’s in a legal process at the moment”.[53] Mr Noonan highlighted that electronic records held by Centrelink list Mr Young as having resided at Address B from 16 November 2017 to 27 February 2019.[54] The Tribunal considers that the Caveat is relevant and has accepted it into evidence in this proceeding.
[52] Ibid at P-18.
[53] Ibid.
[54] Refer Transcript Day 2 at P-10.
The Tribunal invited Mr Young and Mrs Young (during the Hearing Adjournment) to obtain any documents, such as bills, that would show that Mr Young has previously lived at Address A with the Applicant. Mrs Young reiterated that the difficulty was that Mr Young had never registered Address A for his bills “and things like that”, for his “self-protection”, because he did not want to be traced to his place of residence.[55]
[55] Ibid at P-12.
Mr Young lodged the following documents with the Tribunal recording Mr Young’s address as Address A:
(a)a WorkSafe Certificate of Capacity form signed by Mr Young on 7 December 2020; and
(b)letter of referral from Mr Young’s general practitioner to Peninsula Health dated 20 October 2020.
This evidence is not probative in terms of showing that the Applicant occupied the house at Address A in the Two-Year Period, because both of those documents post-dated the date upon which the Applicant entered residential care. Also, of note, those documents record Mr Young’s address to be Address A on dates upon which it was later revealed (that is, after Mr Young lodged those documents), that Address A was leased to third parties (see paragraphs [80] to [82] below).
Mr Young was given an opportunity at the hearing to explain the inconsistent references to his residential address recorded in a number of Centrelink documents and, in particular, why his listed addresses were different from Address A during the period of time he claimed to be living at this address. Mr Young gave evidence to the Tribunal that he “had to” give different addresses for himself, because Victoria Police “were after” him.[56] Mr Young claims he was assaulted in his home by out-of-uniform police officers. Mr Young said he was also “anonymous” on the electoral rolls and produced an undated record to confirm that this was the case.[57]
[56] Refer Day 1 Transcript at P-7.
[57] Ibid.
During cross-examination, the Respondent’s legal representative, Mr Tim Noonan, took Mr Young to a disability support pension (DSP) claim form completed by Mr Young and dated 4 June 2019, which records his home address as being at Address B and the reference on that form to Mr Young having commenced living there on 16 November 2017. Mr Young said he did not start living at that address. Mr Noonan took Mr Young to another answer given by Mr Young on that form indicating that he lived with his daughter and the Applicant at the residence at Address B. Mr Young reiterated that he lived at the residence at Address A.
Mr Noonan put to Mr Young at the hearing that the electronic file held by Centrelink recorded the following:
(a)that from February 2017 to 15 November 2017, Mr Young had an address at Address C; and
(b)from 15 November 2017 to 27 February 2019, he had an address at Address B.
Mr Young said that this is incorrect.
Mr Noonan put to Mr Young that the electronic files held by Centrelink, record that Mr Young was paid rental assistance in respect of the residence at Address C, from the periods 9 February 2017 to 27 December 2018, and in respect of the residence at Address B, from 28 June 2018 to 31 December 2018. Mr Young responded, “Whatever it says, I wasn’t living at that address, I was collecting whatever means I could get to support my daughter and myself and Michael”.[58]
[58] Refer Transcript Day 2 at P-25.
When Mr Young was asked during cross-examination, why a letter from “X-changing” dated 4 February 2019 had been addressed to Mr Young at Address C, rather than at Address A, Mr Young said, “…2C and my legal team didn’t want anyone knowing where I was actually living”.[59]
[59] Ibid.
On the first day of the hearing, Mrs Young said the only reason Mr Young needed to change his residential address ”more than once”, and to have his address listed as “anonymous on the electoral role”, was due to the alleged victimisation he had suffered at the hands of Victoria Police.[60] The Tribunal referred Mrs Young to the address listed by Mr Young on his DSP claim form marked “Completed on 04 June 2019”.[61] In answer to a question by the Tribunal, Mrs Young confirmed that she lived at Address B.[62]
[60] Refer Day1 Transcript at P-10.
[61] The DSP Claim Form is at Supplementary T-Documents ST10.
[62] Refer Day 1 Transcript at P-10 and P-11.
Mrs Young informed the Tribunal that she had commenced a relationship with Mr Young in August 2018.[63] On the first day of the hearing, Mrs Young told the Tribunal that she does not live with Mr Young. She said that Mr Young spends a couple of nights a week at her residence, although this frequency varied from time to time.[64] She explained that Mr Young has a “lot of respite up at a farm facility” owned by a “good friend” of Mr Young’s.[65] Mrs Young explained that Mr Young does “not stay in one place for any length of time”.[66] Mrs Young said it also depends on whether her children are with her.
[63] Ibid at P-11.
[64] Ibid.
[65] Ibid.
[66] Ibid.
Mrs Young informed the Tribunal that Mr Young’s daughter was 20 years old. Mr Young told the Tribunal that he had lived with his daughter for the past 11 years.[67] Mrs Young explained that Mr Young was “given full custody of his daughter when the marriage had broken down”.[68] The Tribunal asked Mr Young whether he had registered his daughter at her school and whether the student records for her would show that her place of residence was at Address A. Mr Young said that this was “probably not the case”, because his daughter’s mother “had access”.[69] Mrs Young explained that because Mr Young’s daughter’s mother had access to the information at the school, this would be the reason why Mr Young would not have listed his address on the paperwork. She said that the situation between Mr Young and his ex-wife was “very complicated”.[70]
[67] Ibid.
[68] Ibid.
[69] Ibid.
[70] Ibid.
The Tribunal requested that property website searches of the sales and rental history of Address A be undertaken by the Respondent and provided to the Tribunal. A webpage from domain.com.au was provided to the Tribunal on 10 January 2022 showing that the property at Address A had been rented out by Botany Park Real Estate for $370 per week in September 2019, and again in May 2020 for $370 per week. The Tribunal issued a summons to obtain the relevant lease documents from Botany Park Real Estate to understand more about those leasing arrangements, given that Mr Young has previously represented to the Tribunal that he was still living at the property at Address A.
On 18 January 2022, Botany Park Real Estate produced the following documents in respect of Address A:
(a)“exclusive leasing and managing authority” executed by Mr Young on 29 August 2019;
(b)fixed term “residential tenancy agreement”, within which Mr Young is described as the “Landlord”, executed on 21 May 2021. The fixed term of the lease is 22 June 2021 to 21 June 2022.
Botany Park Real Estate informed the Tribunal that documents in relation to the past tenancy were in an out of office archive file. Botany Park Real Estate explained why they only partially complied with the summons, citing reasons which included staffing shortages and the personal circumstances of the rental manager. Instead, Botany Park Real Estate informed the Tribunal that the property at Address A was leased to two persons from 12 October 2019 to 21 May 2020 (October 2019 Lease); and to a different (single) person from 22 May 2020 until the current time with the lease due to expire on 21 June 2002 (May 2020 Lease).
Upon receipt of the information and documents from Botany Park Real Estate, the Tribunal invited the parties to make further submissions about this new evidence, in light of Mr Young’s previous representations that he was still living at Address A. The parties were given the option of a resumed hearing to address the new evidence at their election. Neither party requested a resumed hearing. Instead, the Respondent lodged a further written submission on 25 January 2022,[71] and Mr Young lodged further evidence in the form of a witness statement by Mr Greg Kirby, as described below.
[71] Refer Respondent’s Third Supplementary Submissions.
In the Respondent’s Third Supplementary Submission, the Respondent contends that if the Tribunal determines that section 44-26A (6)(b) of the Aged Care Act is satisfied, the determination could only have effect until the date that Mr Young ceased to occupy the property.[72] The Respondent noted that that date is unclear with Mr Young having signed the lease authority for Address A on 29 August 2019 and the date of commencement of the first lease was recorded as 12 October 2019. The Respondent suggests the occupancy cessation date would seem to fall in the period 29 August 2019 to 11 October 2019 (Occupancy Cessation Date). The Respondent further contends that:[73]
4. The exemption afforded by section 44-26A(6)(b) of the Act is worked out ‘at a particular time’ and requires a carer of the person ‘at the time’ of the assessment to occupy the home and to have done so for the past two years.
5. Section 44-26C(4) of the Act provides that the Secretary may, by written instrument revoke the determination if he or she is satisfied that it is incorrect. If so, the determination ceases to be in force on a day specified in the instrument (which may be before the instrument is made).
6. As at the occupancy cessation date, it would be incorrect to disregard the value of the property given Mr Young no longer occupied it.
[72] Ibid.
[73] Ibid.
As mentioned, Mr Young was given an opportunity to respond to this new evidence from Botany Park Real Estate. There was no denial put forward by him or Mrs Young, on his behalf, that the property at Address A had been leased to third parties as from 10 October 2019 up until the present time and due to continue until June 2022. Instead, and seemingly in an attempt to explain matters, Mr Young lodged a witness statement by Mr Greg Kirby dated 17 January 2022 (Mr Kirby’s Statement).
Mr Kirby’s Statement shows a signature by Mr Greg Kirby and provides his residential address at Town A based in the Gippsland area, but does not provide a contact telephone number or email address for Mr Kirby. Mr Kirby states as follows:
(a)Mr Kirby has known Mr Young for 30 years and there are good friends;
(b)Mr Kirby’s rural property in Town A has been Mr Young’s “safe haven and place of peace and recovery, where he spends much of his time intermittently over the last several years”; and
(c)Mr Kirby has known Mr Young’s residential address to be Address A and he had visited him there “numerous times over the years” and he had met the Applicant there on a number of his visits.
Mr Kirby also makes the following statement:
…However, during Covid lockdowns it became more difficult for Andrew to return to suburban Melbourne and back to my property without border complications and although it was hard for Andrew to stay rural for longer periods because of the hesitance to leave the “Address A” address empty and his longer periods of absence from his fiancée Kate, Andrew and his treating psychologist felt it was important for him to not be trapped within the suburban environment and aggravate his anxiety, arrangements were made for Kate to be able to visit when she was able and since Michael’s admission to [Aged Care Facility A] things were much more settled and easier for Andrew to come and go. To prevent an extended period of absence from his property known as [Address A] and having the property remain empty and uncared for, a temporary tenant arrangement was put in place BUT this property is Andrew’s home where he is known to reside and intends to reside. Andrew is now married to Kate and stays with her and her children a few nights per week in between his visits her(sic) to [Town A], since the tenancy arrangement is temporary and now covid lockdowns have eased he will no doubt resume his occupancy of [Address A] where I believe his wife Kate will join him.
Neither Mr Young, nor Mrs Young, put on any further evidence in the form of a witness statement or otherwise, to confirm the assertions made by Mr Kirby about purported “temporary” nature of the tenancy arrangements in place in respect of Address A, or the purported intentions (according to Mr Kirby) of Mr and Mrs Young to resume occupancy at Address A.
Mr Kirby’s Statement does not reconcile the incontrovertible evidence produced by Botany Park Real Estate revealing that the property at Address A has been leased out to third parties since October 2019, against Mr Young’s indication to the Tribunal at the hearing, and elsewhere as set out between paragraphs [57] to [61], that Mr Young was still living at that property. Those leasing arrangements in respect of Address A were not “temporary”. Instead, Mr Young executed fixed term leases providing for other persons to exclusively occupy the property at Address A for lengthy periods of time. The leases included periods during which no COVID-19 lockdown restrictions were in place. Further, commencement of the first October 2019 Lease pre-dated commencement of the COVID-19 pandemic. The Tribunal does not accept the evidence given in Mr Kirby’s statement seeking to create an impression that the leasing arrangements were temporary, and that Mr and Mrs Young may resume living at the property at Address A. The Tribunal finds, on the balance of probabilities, that this is not the case.
Mrs Young informed the Tribunal at the end of the hearing that she had visited all parties living at the residence at Address A on multiple occasions. No specific dates were provided by her, noting that her relationship only commenced with Mr Young in August 2018, according to Mrs Young’s own evidence. The Tribunal does not consider Mrs Young’s evidence to be credible given that she has been present at the hearings for this Tribunal when Mr Young has sought to create an impression that he is still living at Address A and she did not seek to correct this matter with the Tribunal in her capacity at Mr Young’s support person at the hearing. She intervened in relation to other matters to clarify Mr Young’s evidence, but was content to allow the Tribunal to be misled, for a time, that Mr Young was still living at the property at Address A. Further, Mrs Young’s evidence was vague, with no particulars provided of her visits to Address A, and therefore, inconclusive as to whether Mr Young lived at Address A for “most of the time” during the Two-Year Period.
Due to the lack of documentary evidence available to corroborate the evidence of Mr Young in relation to whether he occupied the residence at Address A during the Two-Year Period, the findings of the Tribunal turn largely upon the credibility of Mr Young’s oral evidence and the discrete number of supporting documents that he produced.
Upon a close consideration of Mr Young’s evidence given at the hearing and the documents lodged in this proceeding, including those lodged by Botany Park Real Estate under summons, the Tribunal finds that Mr Young is not a credible witness. He sought to knowingly mislead the Tribunal by representing that he was still residing at the property at Address A, when, in fact, the evidence received under summons from Botany Park Real Estate as referred to in paragraph [80] to [82], conclusively shows that other third parties have leased that property since October 2019. This was not disputed by Mr Young and he had an opportunity after the Botany Park Real Estate documents and information was provided to him, to do so.
After the October 2019 Lease and May 2020 Lease arrangements were revealed, the Tribunal directed that Mr Young produce bank statements for any bank accounts in his name, held jointly or alone. Mr Young objected and raised privacy concerns about producing them, in relation to both him and Mrs Young. The Tribunal did not uphold Mr Young’s objection and Mr Young was informed by the Tribunal that he was required to comply with the Tribunal’s directions. At the same time, Mr Young was informed about the privilege against self-incrimination and asked to inform the Tribunal if he was claiming such privilege. Mr Young did not claim such privilege. To date, Mr Young has not produced any documents in compliance with the Tribunal’s directions. The Tribunal draws an inference from the non-production of the bank statements held by him and/or him and Mrs Young since February 2017 that the production of those bank statements would not have served Mr Young’s interests in this proceeding had they been produced.
Mr Young also sought to rely upon a handwritten letter dated 5 April 2021 purportedly signed by Ms Susan Reaper, described as the Applicant’s sister (Ms Reaper’s Letter).[74] Ms Reaper was not called as a witness at the hearing. The Tribunal notes that Ms Reaper’s Letter states as follows (emphasis added in bold):
[the Applicant’s] friend Andrew Young has been residing with him for at least ten years and is still living in his home while he takes over being [the Applicant’s] carer as no one of us eight that are living are able to take care of him at all.
[74] The spelling of this person’s surname was difficult to make out.
However, as set out in paragraphs [80] to [82], the lease agreement and other information provided by Botany Park Real Estate under summons, satisfies the Tribunal that Mr Young is not still living in the Applicant’s home at Address A. The statement purportedly made by Ms Reaper that Mr Young is still living in the Applicant’s home is incorrect and has been since at least October 2019 when the first lease for the property at Address A was signed, rendering the statements made by Ms Reaper in this statement unreliable, and placing into doubt the authenticity of this document.
Based on the lease documents and information referred to in paragraphs [81] and [82] above, the Tribunal finds that Mr Young’s evidence to the Tribunal indicating that he still resides at the property at Address A is false. The Tribunal finds that Mr Young does not still reside at Address A. This factual matter is relevant to the question of whether the Applicant was entitled to continue to have his principal home disregarded on a continuing basis after the initial assessment on 13 February 2019, when the value of his assets is determined under s 22.46C of the Aged Care Act (as explained in the Respondent’s Third Supplementary Submissions as referred to in paragraph [84] above).
The Tribunal considers that by Mr Young giving evidence to the Tribunal that he was still living at the property at Address A when, in fact, he was not doing so and instead, it was occupied by third parties under formally executed fixed-term lease agreements, Mr Young sought to knowingly mislead the Tribunal. This is a serious matter in light of s 62A of the AAT Act which provides that it is an offence to give false or misleading evidence to the Tribunal and the penalty for contravention of that provision may include a term of imprisonment.
The Landata searches conducted by the Respondent and produced to the Tribunal revealed that the residence at Address B is owned by Mr Young’s ex-partner, Ms Jacinta McBride.[75] The Landata searches also reveal that on 27 February 2017, Mr Young lodged a Caveat claiming a proprietary interest over the property at Address B, based on an agreement reached between Mr Young and Ms McBride. Mr Young gave evidence that he had lent money to Ms McBride which was used to contribute to the purchase of this property. As already mentioned, the Tribunal was informed by Mr Young at the hearing that there is currently a legal proceeding on foot in relation to this matter.
[75] Refer Supplementary Documents ST12.

As mentioned above at paragraph [77], Mrs Young gave evidence at the hearing, when asked by the Tribunal, that she lived at Address B.[76]
[76] Refer Day 1 Transcript at P-10 and P-11.
The Tribunal considers it reasonable to infer from the matters set out in the above two paragraphs that:
(a)Mr Young and his ex-partner, Ms McBride, previously cohabited the residence at Address B until their relationship ended; and
(b)after the breakdown of the relationship between Mr Young and Ms McBride, Ms McBride moved out of the residence at Address B and at some later point in time, Mrs Young, as Mr Young’s new partner (and now wife), moved into the residence at Address B with Mr Young, and that other times he may have stayed on Mr Kirby’s farm at Town A for respite.
The Tribunal does not accept Mrs Young’s evidence that Mr Young does not currently live with her at Address B (apart from visiting her a few times a week). The Tribunal considers that this evidence is implausible. Mrs Young admitted at the hearing that she lives in Address B. Address B is a residence owned by Ms McBride and over which Mr Young, and notably not Mrs Young, claims a proprietary interest. The Tribunal is satisfied, on a balance of probabilities, that Mr Young is currently cohabiting with Mrs Young in the residence at Address B, when he is not staying on Mr Kirby’s rural property in Town A.
Based on Mr Young’s act of giving false evidence to the Tribunal, the Tribunal considers that he has demonstrated that he will give false evidence to the Tribunal to advance the interests of the Applicant’s application, and with the intention of deceiving the Tribunal. For this reason, the Tribunal finds that Mr Young is not a credible witness and that his evidence is wholly unreliable. The Tribunal does not accept any of Mr Young’s evidence in this proceeding in the absence of verifiable and objective documentary evidence that sufficiently corroborates Mr Young’s assertions of fact.
In conclusion, the Tribunal agrees with the Respondent’s contention that there is insufficient objective and verifiable evidence that Mr Young “occupied” or lived at the residence at Address A for most of the time during the Two-Year Period.
Due to the deficiency in the supporting documentary evidence and the view formed by the Tribunal about the credibility of Mr Young, and hence, the unreliability of his evidence, the Tribunal is not satisfied that Mr Young “occupied” or lived at Address A for most of the time during the Two-Year Period and finds accordingly.
Was Mr Young eligible to receive an “income support payment” at the time?
The Tribunal will not proceed to consider the question of whether Mr Young was eligible to receive “income support payments”, because the Tribunal is satisfied that subsection 44.26A(6) of the Aged Care Act did not apply to the Applicant at the time he entered residential aged care, for the reason that the Tribunal has found that Mr Young did not “occupy’ the residence at Address A at that time.
Whether the Alleged Loan, plus the Alleged Interest, should be taken into account for the purpose of working out the Applicant’s means-tested care fee?
The Tribunal has concluded that the Applicant’s principal home at Address A is not to be disregarded when assessing his assets.
The Tribunal will now proceed to a consideration as to whether it is satisfied that Mr Young made a loan to the Applicant as a result of Mr Young allegedly making two payments in 2007 in the aggregate sum of $350,000 to two unnamed parties, to repay the Applicant’s alleged gambling and other debts, on the basis that the Applicant would “clear this debt from his estate”[77] (Alleged Loan).
[77] Taken from the Alleged Loan Agreement particularised in paragraph [‎110] of these Reasons for Decision.
If the Tribunal is satisfied that the Alleged Loan was made, the Tribunal must also consider whether it is satisfied that Mr Young and the Applicant had reached an agreement that interest would accrue on the Alleged Loan at the rate of 3% per annum calculated annually (Alleged Interest).
On 18 February 2019, Mr Young, on behalf of the Applicant, completed a Centrelink form entitled “Permanent Residential Aged Care Request for a Combined Assets and Income Assessment”,[78] and he omitted to answer question 34, being a “yes or no” question, as to whether the Applicant had, on the relevant date, any loans for which his home was used as security. Mr Young left this answer blank. In answer to question 50 on this form, Mr Young indicates that the Applicant owns 100 per cent of the home as shown on the property title. In answer to question 54, Mr Young indicates that the Applicant did not have any mortgage on the residence at Address A.[79] On this form in answer to question 112, Mr Young indicates that the Applicant had an outstanding personal loan owed to “Andrew Young” and the Applicant’s share of that loan was 100 percent.
[78] Refer T-Documents T9. It is apparent this assets and income information was not submitted to Centrelink until a later date, based on the letter at T-Document T13 chasing up this information from the Applicant.
[79] Refer T-Documents T9/36.
In this proceeding, Mr Young sought to rely upon a purported copy of an agreement between him and the Applicant dated 25 February 2007, to the effect that Mr Young had paid the Applicant’s debts and that Mr Young would clear the debt from the Applicant’s estate because Mr Young was the sole beneficiary under the Applicant’s Will (Alleged Loan Agreement).
The Alleged Loan Agreement was not in the form of a Deed, nor was it registered as a Mortgage over the property at Address A. It did not include any reference to interest being payable on the amounts paid by Mr Young to satisfy the Applicant’s debts. Instead, it constituted an informal one-page document containing the following text:
Andrew Alexander Young
XX Crt.
Patterson Lakes.
25/02/2007
I Andrew Young have paid the debts of Michael McKenzie McHarg of [Address A] these debts were incurred after a dating scam and a gambling problem totalling three hundred and fifty dollars. I did this because he was stressing out that he would lose his house and the worry was affecting his health/prostate cancer.
Michael would clear the debt from his estate, as I am sole benificery [sic] of his will.
At the base of the Alleged Loan Agreement, handwritten signatures appeared under the printed names of Mr Young and the Applicant. A further handwritten signature appeared under a typed reference to “Witness”. At the hearing, Mr Young was asked whether he recalled the name of the person who had purportedly witnessed the Alleged Loan Agreement. Mr Young said he did not know “off the top of his head”, and that it “could have been a mutual friend, Jenny or Michael”.[80] No surname was provided, and no witness statement was provided by Mr Young from the person who witnessed this Alleged Loan Agreement, and they were not called as a witness at the hearing of this application.
[80] Refer Day 2 Transcript at P-26
Mr Young confirmed that both the Applicant and he had signed this document at the same time and that, “It was for $350,000”.[81] Mr Young said he could not recall the location of where he had signed it. The sum referred to in the Alleged Loan Agreement was $350, rather than $350,000 being the sum of the Alleged Loan.
[81] Ibid.
At the hearing, Mr Noonan asked Mr Young when he first realised that the amount of the loan referred to in the Alleged Loan Agreement was “three hundred and fifty dollars”, instead of three hundred and fifty thousand dollars. Mr Young responded, “When the department brought it to my attention”.[82] When asked whether he had considered changing the document so that it referred to $350,000, instead of $350, Mr Young said, “No. Michael has got dementia, so you get someone to sign with dementia, do you?”.[83]
[82] Ibid.
[83] Ibid at P-27.
Mr Young also relied upon the Applicant’s 2013 Letter, purportedly signed by the Applicant, and showing the signature of a witness, Ms Jennifer Thompson.
The Applicant’s 2013 Letter states, in summary, that:
(a)the arrangement of Mr Young and his daughter living with him in the residence at Address A “is to remain” if it is necessary for the Applicant to go into full-time care and this is the Applicant’s way of saying thank you to Mr Young for everything, he has done for him;
(b)Mr Young helped the Applicant out by paying some “very bad debts” that he said he was not proud of and which may have resulted in the Applicant losing his house;
(c)Mr Young has looked after the Applicant since he was diagnosed with prostate cancer in 2005, taking him to all his medical appointments, to do shopping and “other running about” because the Applicant does not drive;
(d)Mr Young is the only person the Applicant can rely upon as “he has nothing to do with his siblings”; and
(e)Mr Young is like the son he never had and treats the Applicant “very well” and maintains his house and garden.
Mr Young sought also to rely upon Ms Reaper’s Letter, which states that during “this time”, the Applicant had “at one stage” loaned the Applicant a sum of money and that Mr Young had paid for expenses on the house. The Tribunal does not accept this evidence. The Tribunal considers that even if this letter was genuine and not falsified by Mr Young, the accuracy of it is unreliable, based on the significant factual error contained in it in relation to the assertion that Mr Young was still living in the Applicant’s home. Ms Reaper was not called as a witness at the hearing of this application.
Attempts to address deficiency in documentary evidence relating to Alleged Loan
On the first day of the hearing, it was apparent to the Tribunal that the supporting documentation lodged by Mr Young in support of this application was deficient. In an effort to assist Mr Young to understand what was required by the Tribunal, and in light of Mr Young not being legally qualified or legally represented, the Tribunal elaborated upon the type of evidence which it considered would be most probative in this case. This included evidence about how the Alleged Loan was made, and any evidence that would prove that Mr Young had made the alleged repayments of the Applicant’s debts totalling $350,000.[84]
[84] Ibid.
The Tribunal also asked Mr Young to provide an explanation to the Tribunal about the circumstances of the Alleged Loan. Mr Young informed the Tribunal that the Applicant “had a gambling issue and he had dating thing”, and had been by himself “for many, many years”.[85] The Tribunal asked Mr Young to describe how he had paid the loan to Mr Young. Mr Young answered, “I paid debt” and that, “Yes, I had the money in the business, and I had some cash and pay the debts, I paid what the – the money that had been outstanding that he was getting chased for”.[86]
[85] Refer Day 1 Transcript at P-14.
[86] Ibid.
The Tribunal asked Mr Young who he paid the debts to. Mr Young answered, “The people it was owed to”.[87] When asked by the Tribunal who those people were, Mr Young said he did not know and that he would “have to go back and see what I can find”.[88] Mr Young told the Tribunal there were two different debtors. Mr Young revealed concerns about his memory and remarked to the Tribunal, “See, I don’t remember what I did yesterday…”.[89] The Tribunal asked Mr Young if he could remember how much he had paid to the two different debtors. Mr Young said, “I don’t know, I know the sum of the total”.[90] Mr Young was asked whether this made up the entire $350,000. Mr Young answered, “Yes, and I paid a loan out as well for – there was a loan on his property”.
[87] Ibid.
[88] Ibid.
[89] Ibid at P-15.
[90] Ibid.
The Tribunal asked Mr Young whether he had paid the sum of the Alleged Loan, being $350,000 in cash. Mr Young said that he “didn’t pay it”, and that “there was transfers though banks’.[91] When asked whether he had been to the banks to try to obtain proof of the transfers, Mr Young told the Tribunal that he could not do so, because he had “nothing to do with those companies”.[92] Mrs Young explained to the Tribunal that those companies no longer existed, and that most of the documentation from them was either taken by the liquidators, or “this far down the track doesn’t exist anymore…”.[93]
[91] Ibid at P-16.
[92] Ibid.
[93] Ibid.
Mr Young also told the Tribunal that he was aware of the names of the three companies involved, but unaware of the identity of the banks at which the companies held their bank accounts.[94] Mrs Young said that Mr Young’s “ex-wife ran that side of the business”.[95] Mr Young said he was no longer in communication with his ex-wife.[96] Mr Young said he was aware of the accountant’s name but did not know whether he was still practising. Mr Young said the accountant was “a crook” and that the accountant and the bank manager had “knocked off” Mr Young’s superannuation.[97] Mr Young told the Tribunal that the liquidators were also “crooks” and involved with the accountants.[98]
[94] Ibid at P-19.
[95] Ibid.
[96] Ibid at P-20.
[97] Ibid.
[98] Ibid at P-23.
The Tribunal requested that Mr Young collect his thoughts and memories about the Alleged Loan and go back through old emails prior to the second day of the hearing. The Tribunal requested of Mr Young that he prepare a detailed written statement to explain exactly how the Alleged Loan was made and directed that he should seek to obtain supporting documents, or if he could not do so, that he should set out what enquiries were made to get such documentation if he was unable to do so.[99] No further witness statement or supporting documentation providing proof of the repayments, was lodged by Mr Young to this effect during the Hearing Adjournment or subsequently.
[99] Ibid.
During the Hearing Adjournment, Mr Young, on behalf of the Applicant, lodged a witness statement purportedly by Mr Shane Ward (Mr Ward’s Statement), stating as follows:
(a)Mr Ward has known Mr Young for in excess of 49 years and is his “personal friend”;
(b)Mr Ward has known the Applicant in excess of 30 years initially as an employee of the Applicant and then as a friend;
(c)Mr Ward has witnessed and is aware of Mr Young having cared for the well-being of the Applicant’s affairs for the last 15 years;
(d)Mr Young moved in with the Applicant “from around 2011” and “previous to this time” Mr Young would take the Applicant to his medical appointments, grocery shopping, “medical needs” and maintained his wellbeing and property;
(e)while the Applicant was under the employ of Mr Young at Australia Bird Company for 20 years, they “cemented a friendship like a father and son bond that was inseparable”. During this time, unbeknownst to Mr Young, the Applicant developed a thirst for gambling;
(f)Mr Young helped to bail out the Applicant’s financial issues “over time and time again with varying amounts” by agreeing there were loan in excess of $350,000. To the best of Mr Ward’s knowledge, those loans are still outstanding;
(g)the Applicant resides at Aged Care Facility A and Mr Young continues to care for his needs whilst the Applicant struggles with is medical conditions; and
(h)the Applicant and Mr Young recently attended a family wedding, funeral, and reunion.
Mr Ward was not called by Mr Young as a witness at the hearing. The Tribunal also notes that no address was provided on either of the statements, and that the statement of Mr Ward was unsigned and typed, so there can be no surety as to who prepared Mr Ward’s Statement. For these reasons, the Tribunal attributes no weight to Mr Ward’s Statement.
Documents produced under summonses
The Tribunal indicated to the parties on the first day of the hearing that, subject to Mr Young submitting requests for summonses, the Tribunal was prepared to issue summonses seeking information from the accountant and/or the liquidator about where the bank accounts were held, and/or to issue summonses to obtain bank records from those banks.[100]
[100] Ibid at P-20, P-21, and P-23.
During the Hearing Adjournment, Mr Young, on behalf of the Applicant, requested that the following summonses be issued to the following third parties:
(i)Mr Dale Sinnott (the former accountant of the companies referred to by Mr Young) (First Summons);
(j)PPB Advisory (attention: Warren White) (the liquidator of the companies referred to by Mr Young) (Second Summons);
(k)Mr Dominic Amato (a former Director of one of the companies) (Third Summons); and
(l)Ms Jocelyn Abella (Mr Young’s ex-wife) (Fourth Summons).
On 12 April 2021, the Tribunal granted those requests and issued summonses to the parties listed above seeking (in each of those summonses), production of: “all bank statements for all companies: 1. Australian Pet Super Store; 2. Australian K9 Company; 3. Pet Styles Australia; 4. Australia Bird Company; and 5. Andrew Young”.
In answer to the First Summons, the Tribunal received an email on 15 April 2021 from Mr Don Blackwell, Director, Accounting & Tax from Advantage One, Integrated Financial Services. Mr Blackwell informed the Tribunal that Mr Sinnott was formerly a shareholder and Director of Advantage One (Vic) Pty Ltd and partner in the Advantage One (Vic) partnership ABN 23 568 003 972. Mr Blackwell confirmed that Mr Sinnott was, for a time, a nominated tax agent and business adviser for the companies listed in the Summons (see above paragraph). Mr Blackwell advised that Advantage One (Vic) Pty Ltd and the Advantage One (Vic) partnership were de-registered in March 2015 following a significant dispute with Mr Sinnott who Mr Blackwell described as having stolen clients and left the business. Mr Blackwell stated in his email, that any documents that may have been in the possession of Advantage One (Vic) Pty Ltd and the Advantage One (Vic) partnership were taken by Mr Sinnott in about December 2012. Mr Blackwell advised that between 2010 and 2012, they kept paper-based records and very little electronic client data. He said the owners of Advantage One had sued Mr Sinnott for years without success. Mr Blackwell said the company closed and the other directors, shareholders and partners stopped doing business in Victoria. For those reasons, Mr Blackwell informed the Tribunal that they were unable to assist with the provision of any client bank statements or any other client records for the five entities/ people listed in the First Summons.
On 19 April 2021, the Tribunal received a letter directly from Mr Sinnott stating as follows:
I refer to Administrative Appeals Tribunal Summons to Produce Documents dated 12th April 2021, and received dated 17th April 2021 and note that I have retired from full-time public practice and do not have access to the documents requested.
For your record, to the best of my knowledge the entities listed in the Summons either ceased trading and deregistered or liquidated over seven years ago and therefore these documents may have been destroyed in accordance with Statute of Limitations record keeping requirements.
As the applicant is requiring bank statements, it would be advisable for them to contact Bank of Queensland to supply the requested documents.
In answer to the Second Summons, PPS Advisory produced a set of bank statements for a Westpac Classic account numbered xx2170 held in the names of Mr Andrew Young and Mrs Jocelyn Olilia Young, and a Westpac Business One account numbered xx8122. However, the earliest transaction in the account numbered xx2170 took place on 24 November 2009 and in account xx8122, on 10 November 2009. Those documents did not shed light on whether payments were transferred out of any of those accounts to pay the Applicant’s debts in the aggregate sum of $350,000 in 2007, as asserted by Mr Young on the first day of the hearing.
Regarding the Third Summons, Mr Amato wrote to the Tribunal on 16 May 2021 advising that he did not have any of the bank statements for the requested companies because, “I did not have any involvement with the companies listed”. Mr Young produced to the Tribunal a company search document showing that Mr Amato was appointed as Director of Australian Pet Superstore Pty Ltd from 1 November 2010. The Registry wrote to Mr Amato bringing this company search record to his attention and calling upon him to comply with the Third Summons. Mr Amato responded to the Tribunal as follows;
I have now conducted an ASIC Company search and confirmed that I was a Director of Australian Pet Superstore Pty Ltd from November 2011 to June 2012.
Due to the length of time, I had forgotten that I was a Director of the Company for a short time period. I apologise for this oversight on my original email.
I confirm that I was not involved in the day to day financial management of the Australia Pet Superstore Pty Ltd during my time as a Director of the company and note that I did not have access to the financial information as requested by your office.

Regarding the Fourth Summons, Ms Abella wrote to the Tribunal on 13 May 2021 advising that, “I do not hold any bank statements requested for all companies, as these bank statements are all over 10 years old”.
On the second day of the hearing, Mr Noonan asked Mr Young about whether he could recall the names of the people to whom he had paid the Applicant’s debts. Mr Young said, “Not off the top of my head”.[101] By that time, Mr Young had had four months since the first day of the hearing to recall who he had repaid those debts to. He said it was to “several people” and that he made the payment by “money transfer”.[102] Mr Young said he “did not know what bank it was”, indicating that it was the banks that his former companies had banked with, and there were “a number of banks’ including Bank of Queensland, Westpac, and National Australia Bank.[103] When asked over what period Mr Young had made the repayments, he said he could not recall what date it was. When asked where the funds for the $350,000 came from, Mr Young responded, “I had lines of credit” and that he had a number of businesses.[104]
[101] Ibid at P-28.
[102] Ibid.
[103] Ibid at P-28 and P-29.
[104] Ibid at P-29 and P-30.
During cross-examination, Mr Noonan asked Mr Young whether he had followed up with the Bank of Queensland as had been suggested by Mr Sinnott (see paragraph [130] of these Reasons for Decision). Mr Young responded as follows:
I can’t get any information, Mr [Sinnott] and my ex-wife wound up all the companies. She walked away with the company. So I don’t have authority to go to any bank and get any information.
However, as mentioned in paragraph [126], on the first day of the hearing, the Tribunal indicated that it was prepared to issue summonses to the relevant banks to require production of the bank records. During the Hearing Adjournment, Mr Young did not make any request to the Tribunal to issue further summonses to the Bank of Queensland, Westpac, National Australia Bank, or any other bank, to seek to obtain copies of bank statements for the period leading up to February 2007 to corroborate Mr Young’s oral evidence given about the alleged payments of the Applicant’s in the aggregate sum of $350,000, which Mr Young claimed was transferred from the bank accounts of his former companies.
Critically, the Alleged Loan Agreement dated 25 February 2007 contained a statement within the text of this document which referred to Mr Young being the sole beneficiary of the Applicant’s will (see paragraph [‎111] of these Reasons for Decision). A copy of the Applicant’s will dated 12 June 2012 was lodged with the Tribunal. At the hearing, Mr Noonan asked Mr Young during cross-examination if he was aware of the Applicant having executed a will before February 2007. Mr Young said, “Not off the top of my head, my ex-wife was the beneficiary then”.[105] Mr Noonan asked Mr Young to confirm whether he was the beneficiary of the Applicant’s will prior to 2007, and Mr Young confirmed that his [ex-wife] was the beneficiary at that time.[106]
[105] Ibid P-27.
[106] Ibid.
Mr Noonan then put to Mr Young that the Loan Agreement executed on 25 February 2007 contained a statement that Mr Young is the sole beneficiary of the Applicant’s Will. Mr Young then changed his evidence and said he could not recall who was the beneficiary of the Will at that time, and he added, “The previous one before that was my ex-wife and then I was – there was a couple before that”.[107] This evidence by Mr Young was unconvincing. Again, Mr Young demonstrated that he would change his evidence to serve his interests. Mr Noonan asked Mr Young whether he was saying that the Applicant had made more than one Will to which he responded, “What? What are you saying about a Will? There’s a Will in place. You’ve got copies of it”.[108]
[107] Ibid at P-28.
[108] Ibid.
Based on this exchange between Mr Young and Mr Noonan, the Tribunal is not satisfied that Mr Young was giving truthful evidence to the Tribunal. It demonstrated that Mr Young was prepared to quickly change his evidence when he realised that his first answer to Mr Noonan’s question did not match the representations contained within the text of the Alleged Loan Agreement. The Tribunal considers that Mr Young changed his evidence in an attempt to artificially resolve this inconsistency. Mr Young did not thereafter seek to produce copies of any the Applicant’s previous wills referred to by Mr Young at the hearing of this application, to demonstrate that he was the sole beneficiary of the Applicant’s will as of 25 February 2007. In the absence of such evidence, the Tribunal finds that Mr Young’s ex-wife was the Applicant’s beneficiary as of 25 February 2007 as per the earlier evidence given by Mr Young as set out in paragraph [‎137] of these Reasons for Decision.
On this basis, the Tribunal finds that the Alleged Loan Agreement dated 25 February 2007 is not a genuine document and does not comprise an agreement executed by Mr Young and the Applicant on 25 February 2007. Instead, the Tribunal finds, on the balance of probabilities, that Mr Young fabricated this document after the process of the assessment by Centrelink of the value of the Applicant’s income and assets had begun.
Further, the Tribunal does not accept Mr Young’s evidence that he cannot remember the names of the two parties to whom he claims to have repaid the Applicant’s debts in 2007, or how much he had paid to each of them (even in terms of providing a rough estimate). The Tribunal is unable to accept as plausible that if a person who has paid two discrete very large sums of money which in aggregate total $350,000, even though they dated back to 2007, would forget the identity of the third parties to whom they made those payments. Mr Young was given an opportunity during the Hearing Adjournment to make enquiries so that he could prepare a further detailed statement to provide particulars and further evidence in relation to those repayments, but he did not do so.
The Tribunal does not accept Mr Young’s evidence that he could not remember who had witnessed the execution of the Alleged Loan Agreement, other than to make a guess at the hearing as to who it might be without any surety. The Tribunal considers, on the balance of probabilities, that if the Alleged Loan Agreement was genuine, Mr Young would have been able to recollect who the witness was, and/or to recognise the signature of the person who signed it under the printed reference to “Witness” at the bottom of this document. The Tribunal is satisfied that Mr Young was in a position to call any such witness to the Alleged Loan Agreement, to make a statement in this proceeding and/or to give evidence at the hearing, to corroborate his evidence and to verify the Alleged Loan Agreement. The fact that he did not do so, supports the Tribunal’s finding that the Alleged Loan did not take place.
Based on the matters referred to in the above paragraphs, the Tribunal concludes that the reason Mr Young:
(a)was unable to recall and provide the names of parties to whom he had repaid the alleged debts of the Applicant totalling an aggregate of $350,000 or to provide any further particulars of those payments;
(b)was unable to recall precisely and provide details of the identity of the purported witness to the Alleged Loan Agreement; and
(c)had quickly changed his evidence at the hearing during cross-examination about who was beneficiary of the Applicant’s Will was as of 25 February 2007;
is because the Tribunal is satisfied, on a balance of probabilities, that Mr Young;
(d)fabricated his evidence about the repayment of the Applicant’s debts and the making of the Alleged Loan to the Applicant;
(e)fabricated the Alleged Loan Agreement; and
(f)fabricated the Applicant’s 2013 Letter;
to achieve a favourable outcome in relation to the assessment of the Applicant’s means-tested care assessment.
Finally, the Tribunal considers that it is not necessary to proceed to make findings about the issue of the Alleged Interest, given that the Tribunal has found that the Alleged Loan did not take place on 25 February 2007, or at any other time.
CONCLUSION
For the reasons set out in these Reasons for Decision, the Tribunal has found, on the balance of probabilities, that:
(a)s 44.26A of the Aged Care Act does not apply in the Applicant’s circumstances because Mr Young is not a person to whom subsection (6)(b) applied as of 13 February 2019, because:
(b)Mr Young did not “occupy” the residence at Address A for the Two-Year Period; and
(c)Mr Young did not loan $350,000 or any other amount to the Applicant in 2007, or at any other time, by paying off alleged debts held by the Applicant and by paying off an alleged loan in respect of Address A on behalf of the Applicant, as claimed by Mr Young.
Accordingly, the Tribunal sets aside the Decision Under Review and remits this matter to the Respondent for reconsideration with directions that the Respondent redetermine the value of the Applicant’s assets under s 44-26C(1) of the Aged Care Act 1997 (Cth) as of 13 February 2019, on the bases that:
(a)s 44.26A of the Aged Care Act did not apply as of 13 February 2019, and the Applicant’s principal home at Address A, is not to be disregarded and is to be taken into account; and
(b)the value of Applicant’s principal home at Address A was $460,000 as of 13 February 2019, or the Applicant’s assets in general, will not be reduced by the value of an alleged loan Mr Andrew Young claims to have made to the Applicant in 2007 of $350,000, or alleged accrued interest of $166,691.75.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

......................[sgd]..........................
Associate
Dated: 7 February 2022

147. Dates of hearing:

148. Date last submission lodged:

Representative for the Applicant:

19 February 2021 and 18 June 2021

25 January 2022

Mr Andrew Young (lay person), supported by his wife, Mrs Kate Young (nee Ms Kate Birznieks)

Solicitor for the Respondent:

Mr Tim Noonan, Services Australia

[2022] AATA 168

7 February 2022

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