Palm Gardens Retirement Homes Pty Ltd v Pietrobon - [2005] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of RETIREMENT VILLAGES ACT 1987
PALM GARDENS RETIREMENT HOMES PTY LTD v PIETROBON
Judgment of His Honour Judge Lee
18 March 2005
ADMINISTRATIVE LAW
Appeal by retirement village from order of Residential Tenancies Tribunal under Retirement Villages Act 1987 – whether retirement village able to provide higher level of care is obliged to return to departing resident premium paid at time of entry – meaning of clause 1(1)(a) and (b) of Code of Conduct prescribed by Regulations under Act – appeal allowed.
Retirement Villages Act 1987 ss.14 & 21A, referred to.

PALM GARDENS RETIREMENT HOMES PTY LTD v PIETROBON
[2005] SADC 24

This is an appeal from an order of the Residential Tenancies Tribunal. The order was made upon the application of the respondent under Section 14(2)(b)(3) of the Retirement Villages Act 1987. The order required the appellant to pay to the respondent the sum of $2,270.91, being all interest incurred by the respondent due to the non-payment by the appellant of a premium or bond.
The appellant is the proprietor of the Palm Gardens Retirement Homes (Palm Gardens). Palm Gardens provides two levels of accommodation, namely independent units and hostel apartments. Before his application to the Tribunal, the respondent occupied an independent unit at Palm Gardens. He suffers from Alzheimer’s, dementia and other conditions.
By January 2004, the respondent’s health and mobility had deteriorated to the point where he was no longer suited to independent living. His daughter had two options. The first was to move him to a hostel apartment at Palm Gardens. Residents of hostel apartments have access to a carer, but a resident who eventually becomes bedridden would then need to move to a nursing home. So the respondent’s daughter chose the second option, which was to move him to the Italian Village.
The Italian Village provides individual rooms within a single complex. A resident of an individual room has access to a registered nurse, and can remain in that room even after he becomes bedridden. The respondent’s daughter could have moved him to a hostel apartment at Palm Gardens, because he would have coped with low level care for the time being. But she was looking to the future, and the time when her father would need constant nursing care. Hence her decision to move him to the Italian Village.
Prior to his move from Palm Gardens, the respondent’s incapacity was assessed by an aged care assessor under the Aged Care Act 1997 of the Commonwealth. The assessment, dated 2 February 2004, was in the following terms:-
“75 year old man, no longer managing in retirement village. Increasing safety concerns including food, hygiene, nutrition and electricity/water usage. Hallucinations, confusion and short term memory loss. Managing necessities of daily living with prompting/supervision. Enjoys company, tends to get depressed and teary when isolated. Communicates well in English with Italian being dominant language. Approved for low level residential/respite care. Consider dementia unit due to need for prompting/supervision.”
The important point of that assessment for present purposes is the approval of the respondent for “low level residential/respite care”.
To the extent that is material, section 21A of the Retirement Villages Act 1987 provides:
“(1) The regulations may prescribe codes of conduct to be observed by administering authorities.
(2) It will be a term of a residence contract that the administering authority will observe any code of conduct (subject to any agreement between the administering authority and the resident that, pursuant to a power contained in the code of conduct, provides for the exclusion or modification of a provision of the code of conduct in the circumstances of the particular case).
(3)….”
Clause 1(1) of the Code of Conduct prescribed by the Regulations under the Act requires a retirement village in certain circumstances to return to a departing resident within 60 days of his departure the premium which he paid at the time of his entry. I need to quote the clause in full:
“1. (1) If-
(a) a resident leaves the retirement village because of mental or physical illness or incapacity, as certified by an Aged Care Assessment Team appointed under the Aged Care Act 1997 of the Commonwealth; and
(b) the resident moves (or is moving) to an aged care facility that provides a higher level of care; and
(c) the resident must pay an accommodation bond or accommodation charge within the meaning of the Aged Care Act 1997 of the Commonwealth; and
(d) the resident does not have ready access to funds to pay the bond or charge, or the payment of the bond or charge would have a serious effect on his or her personal finances; and
(e) the resident has paid a premium to the administering authority; and
(f) the resident applies to the administering authority under this provision-
(i) before he or she leaves the retirement village; or
(ii) within two weeks after he or she leaves the retirement village,
the administering authority must, despite the terms of any agreement between the resident and the administering authority, within 60 days after the resident leaves the retirement village, or within such longer period, not exceeding an additional 30 days, as the Minister may allow, repay to the resident so much of the premium as the resident requires to enter that aged care facility and to pay that accommodation bond or accommodation charge (up to (and not exceeding) an amount which is a reasonable assessment of the amount that the person would be entitled to on account of the repayment of the premium in any event).”
The Tribunal found that the respondent’s case falls clearly within the wording of (b). Even though the respondent did not require any higher level of care at the time of his transfer, the Italian Village still constituted, within the meaning of (b), “an aged care facility that provides a higher level of care”.
It is apparent that the Tribunal focused upon clause 1(1)(b) of the Code, and it is true that the Italian Village did qualify at the relevant time as “an aged care facility that provides a higher level of care”. That is the fact of the matter, irrespective of whether the “higher level of care” is required by the resident at the time he enters the facility, or at some future time. But clause 1(1)(b) should not be construed in isolation. If (b) and (a) are read together, two matters must be satisfied before any premium becomes payable. First, the resident must leave the retirement village because of mental or physical illness or incapacity, as certified by an aged care assessment team. Second, the resident must move to a facility that provides a higher level of care. The necessary implication of those provisions is that a resident who moves to another village must require a higher level of care than he was previously receiving, and that higher level of care must not have been available to him at his previous village.
Although it is plain that the respondent’s daughter was acting in the interests of his long term welfare, it is equally plain that his mental or physical illness or incapacity did not necessitate his move from one village to another at that time.
In the result, the order of the court is that the appeal be allowed and that the order appealed from be discharged.