Mrs Helena Anderson and Secretary, Department of Health and Ageing
[2013] AATA 436
[2013] AATA 436
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3248
Re
Mrs Helena Anderson
APPLICANT
And
Secretary, Department of Health and Ageing
RESPONDENT
DIRECTION
TRIBUNAL: Dr A Frazer, Member
DATE: 1 July 2013
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by amending the surname of the Applicant party from Anderson to Andersen.
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Member
DECISION
Tribunal Dr A Frazer, Member
Date 26 June 2013 Place Perth Decision Summary
The Tribunal affirms the decisions under review
(Sgd) Dr A Frazer..............................................
Dr A Frazer, Member
Catchwords
AGED CARE – Residential Care Subsidy Principles 1997 - assets assessment – value of the home
Legislation
Aged Care Act 1997, Social Security Act 1991 (Cth), Residential Care Subsidy Principles1997
Cases
Louisa Margaret Hughes and Secretary, Department of Health and Ageing [2007] AATA 1558
REASONS FOR DECISION
Dr A Frazer, Member
26 June 2013
BACKGROUND
On 4 October 2011 Mrs Anderson (“the Applicant’) who is 95 years old, and is in receipt of Age Pension, was approved for permanent residential care (high level). On 19 December 2011 Centrelink received a Request for an Assets Assessment form in respect of a future admission to an aged care home, completed on behalf of the applicant. The request indicated that Ms Carleen Anderson, a dependent child of the applicant, lived in the home. It also indicated that a close relative of the applicant, eligible to receive an income support payment, had not lived in the applicant’s home for the past 5 years.
The applicant listed her assets to be: Household Contents and Personal effects - $5000, Home at 224 Eighth Avenue Inglewood - $721 000 and Commonwealth Bank Account 611-5003147 - $18 921. In addition, the applicant has received Age Pension, an income support pension, since 1973.
On 30 December 2011 Centrelink advised the applicant that the value of her assets had been assessed as $743 921 and so she did not meet the conditions for Supported Resident Status.
On 10 April 2012 a delegate confirmed the decision and on 8 May 2012 Mr Anderson (joint guardian for the applicant) requested a review of the decision. On 25 June 2012 an Authorised Review Officer (ARO) affirmed the decision. On 10 July 2012 Mr Anderson applied to the Tribunal for a review of the ARO’s decision.
The Relevant Legislation
The legislation relevant to this decision is contained in the Aged Care Act1997 (the Act), the Social Security Act 1991 (the Social Security Act) and the Residential Care Subsidy Principles 1997 (the Principles)
It is common ground that the applicant requested an assets assessment on the approved form and provided sufficient information to the Secretary to determine the value of the applicant’s assets. It is common ground that the value of the applicant’s home is $721 000.
S44-10(2) of the Act allows the value of the home owned by the person to be disregarded if the home was occupied by:
(a) a “dependent” child of the person; or
(b) the carer of the person, who had occupied the home for 2 years AND was eligible for an income support payment; or
(c) a ‘close relation’ of the person who has occupied the home for the past 5 years AND was eligible to receive an income support payment.
It is common ground that Carleen Anderson is the applicant’s daughter, aged over 25 years and receives an income support payment and is neither a “dependent child” within section 44-11(2) of the Act nor a carer of the applicant. It is also common ground that Warren Anderson is a carer for the applicant and is fulltime employed and was not eligible for an income support payment. Therefore, subsections 44-10(2)(a) and (b) do not apply in respect of Carleen Anderson or Warren Anderson.
It is common ground that Carleen Anderson and Warren Anderson are ‘close relations’ of the applicant as defined in section 44-11(1) of the Act.
The substantive issue in this application is the value of the applicant’s assets at 30 December 2011. The relevant issue for this Tribunal to consider is whether the applicant’s daughter, Carleen Anderson, who is in receipt of an income support payment, occupied the applicant’s home for 5 years prior to 30 December 2011, and, therefore, whether the value of the applicant’s home can be exempt from the asset value assessment under s44-10(2)c(i) of the Act.
.
THE EVIDENCE
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T26,) and supplementary T Documents (ST1 to ST5) lodged by the Secretary of the Department of Health and Ageing ) (“the respondent”);
·Submissions from Secretary, Department of Health and Ageing, dated 8 March 2013 in response to letters received on behalf of the applicant. These are letters from Rod Davies, Team Leader, My Place dated 20 February 2013 and 21 February 2013, with 2 attachments “My Plan” and “Personal Details”
·Statement of Facts, Issues and Contentions of the Applicant dated 17 December 2012 (some minor inaccuracies in document were noted by Respondent and accepted by Applicant)
·Exhibit A1 email from Julie Shepherd to Warren Anderson dated 10 July 2012
THE APPLICANT’S EVIDENCE
·The applicant, who lived at 224 Eighth Avenue Inglewood, “the Home” was assessed by an Aged Care Assessment Team from Royal Perth Hospital on 30 September 2011. The report notes the applicant lived alone, owned her home and had one or more non-resident carers. The applicant’s son, Warren, cared for her and owned his own home. Warren worked full time and would attend his mother’s home after work to help with dinner and stay overnight to support his mother. The applicant’s daughter, Carleen, aged 57, is reported to live in a Department of Housing home with her Disability Services Commission full time carer.
·My Place is an organisation funded by the WA Disability Services Commission to provide services to people with disabilities, Their records indicate between March 2009 and April 2010 and July 2010 to June 2011 Carleen Anderson stayed at Unit 28, 8 Garnsworthy Place Bassendean (“Bassendean”) from Monday to Friday. She returned to Inglewood on the weekends and Public Holidays and there were several weeks that she remained at Inglewood (T2,p49-50, ST2,p125)
·Further information provided by My Place on 20 February 2013 states that from 12 March 2009 to 24 March 2010 and 30 November 2010 to 22 February 2011 Carleen Anderson was supported by a carer/coresident at a Bassendean unit rented by her.
·The document “’My Plan” (last edit 31 July 2010) states “Carleen has been living with coresident Neola for nearly one year in her own unit in Bassendean…”
·My Place records (ST2) indicate that from April 2011 Carleen has been supported in “homeshare” arrangements whereby she stays in other peoples homes Monday to Friday and returns to the family home on weekends.
·On 25 June 2010 the applicant, as nominee for Carleen Anderson, completed a Rent Certificate Form for Centrelink stating Carleen’s residential address was Bassendean since 21 April 2009. Certification was provided by Foundation Housing Limited that Carleen Anderson had paid $250 per fortnight since 29 October 2008. A further Rent Certificate was completed by the applicant on 6 February 2012 indicating Carleen Anderson had resided at Inglewood since 1970 (T24,p114,T25,p117)
THE SUBSTANTIVE ISSUE
The Tribunal must determine whether Carleen Anderson “occupied the Inglewood home for the past 5 years” before 30 December 2011 as required by section 44-10(2)c (i) of the Act. The phrase “occupy the home for the past 5 years “ is not defined in the Act or Principles. In Louisa Margaret Hughes and Secretary, Department of Health and Ageing [2007] AATA 1558 the Tribunal considered the phrases ‘the person who had occupied the home” in the context of a carer spending periods of time at the home and stated ..”it would be necessary to show that the house was the principal place of residence..”
The Tribunal notes that the evidence as to the periods of time that Carleen Anderson resided at the Bassendean Unit is imprecise and accepts that Carleen mostly spent the weeknights at Bassendean and spent weekends and periods of some weeks at Inglewood.
However, on balance, there is conclusive evidence from My Place that Carleen Anderson did spend periods of at least 2 years at Bassendean in the 5 years prior to 30 December 2011. There is evidence that Carleen has been in homeshare arrrangements since April 2011. Therefore, there were at least significant periods in the 5 years prior to 30 December 2011 that Carleen Anderson did not occupy the Inglewood home of the applicant and it cannot be said that the Inglewood home was her principal place of residence. Therefore, section 44-10(2)c(i) cannot apply so that the value of the Inglewood home is disregarded when working out the value of the applicant’s assets.
DECISION
For the above reasons the Tribunal affirms the decisions under review.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member. ...(Sgd) D A Chapman..................................................
Administrative Assistant
Dated 26 June 2013
Date(s) of hearing
29 January 2013
Advocate for the Applicant
Applicant represented by son, Warren Andersen
Solicitors for the Respondent
Ms L Gallagher, Sparke Helmore
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