Petrickovic and Secretary, Department of Health (Social services)

[2017] AATA 814

Petrickovic and Secretary, Department of Health (Social services) [2017] AATA 814 (7 June 2017)

Division:GENERAL DIVISION

File Number:           2016/4275

Re:Ivan Petrickovic

APPLICANT

AndSecretary, Department of Health

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:7 June 2017

Place:Perth

The Tribunal sets aside the decision under review, and, in substitution therefor decides that the Applicant is a member of a couple and that the Bayswater property is exempt from the asset assessment for Aged Care purposes.

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Brigadier AG Warner, Member

CATCHWORDS

AGED CARE – whether Applicant is a member of a couple – whether assessment of property as an assessable asset for aged care purposes was correct – Applicant legally married – Applicant member of couple – wife continues to live in family home – property exempt from asset assessment for Aged Care purposes – decision set aside

LEGISLATION

Aged Care Act 1997 – s 44-24 – s 44-26A – s 44-26B – s 44-26C

Social Security Act 1991 – s 4(2) – s 4(7)

REASONS FOR DECISION

Brigadier AG Warner, Member

7 June 2017

INTRODUCTION

1. The Applicant was born in 1952 and resides in a Nursing Home.

2. The decision under review is the decision made by an authorised review officer (ARO) of the Department of Human Services (the Department) on 5 July 2016 which affirmed a decision made by the Department on 16 March 2016 to assess the Applicant as a single person and assess the property at xx xx, Bayswater (Bayswater property) as an asset for Aged Care purposes.

3. The Applicant was represented at the hearing by his son, Mr Tom Petrickovic, who gave evidence.  The Applicant’s wife, Mrs Bodranka (Betty) Perickovic also attended but did not participate in the proceedings.

   BANKGROUND

4. The Applicant is 65 years old.

5. The Applicant was granted sickness allowance from 19 May 2000 and then transferred to Disability Support Pension (DSP) from 10 July 2000.

6. On 26 September 2000, the Department issued the Applicant a notice regarding his DSP using terminology such as “you and your partner” and “combined assets” (T22/177).

7. On 19 April 2001, the Department determined that the Applicant was a single person.

8. On 26 April 2001, the Department issued a further notice to the Applicant regarding his DSP (T2/179).  The letter used single terminology such as “you” and “your assets”.  The Applicant has been receiving DSP at a single rate since this date.

9. On 7 September 2001, the Applicant moved into a care facility (T13/150).

10. The Applicant was admitted to a Nursing Home on 30 June 2015 (T8/106-107).

11. On 16 March 2016, the Department made a decision to assess the Applicant as a single person and assess the Bayswater property as an asset for Aged Care purposes.

12. On 11 April 2016, the Applicant requested review of the Department’s decision by an ARO (T22/197) and on 5 July 2016 an ARO affirmed the decision. The ARO found that the Applicant was a single person, that he was a non-homeowner whose former house was not exempt from the asset assessment for Aged Care purposes and that he was a “not supported” resident for Residential Aged Care purposes. The ARO considered that the Applicant’s share of the Bayswater property was an assessable asset.

13. The Applicant appealed to this Tribunal on 10 August 2016. The reasons for the application were stated as follows:

    I do not believe it was investigated correctly.  The information on file is incorrect &  was complete (sic) incorrectly due to lack of understanding.  No phone calls were made to investigate the information regarding the claim.  The reason the review was asked for was because of the incorrect information & it seems only that information was reviewed? (T1/2)

    ISSUES

14. The Tribunal must decide whether the:

    (a)Applicant is a single person; and

    (b)Assessment of the Bayswater property as an assessable asset was correct.

    LEGISLATION AND POLICY

15. The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Aged Care Act 1997 (Aged Care Act).

16. Section 4(2) of the Act provides that a person is a “member of a couple” if:

    (a)       The person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinitely basis; or

    (aa)     Both of the following conditions are met:

    (i)A relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

    (ii)The person is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

    (b)       All of the following conditions are met:

    (i)The person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);

    (ii)The person is not legally married to the partner;

    (iii)The relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;

    (iv)Both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

    (v)The person and partner are not within a prohibited relationship.

17. Section 44-24 of the Aged Care Act addresses the amount of residential aged care subsidy payable to an approved provider for residential care services for each recipient in their charge. Calculation of the subsidy requires the care recipient’s assets to be assessed in accordance with s 44-26A of the Aged Care Act.

18. Subsection 44-26A(6) of the Aged Care Act provides that:

    (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.

19. Section 44-26B of the Aged Care Act defines “member of a couple” in relation to the value of a person’s assets as:

    (a)a person who is legally married to another person, and is not living separately and apart from the person on a permanent basis; or

    (b)a person whose relationship with another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship for the purposes of that section, and who is not living separately and apart from the other person on a permanent basis; or

    (c)a person who lives with another person (whether of the same sex or a different sex) in a de factor relationship, although not legally married to the other person.

20. Section 44-26C of the Aged Care Act requires the Secretary to determine the value of a person’s assets for the purposes of the Act at a particular point in time when requested to do so.

21. An “illness separated couple” is defined by subs 4(7) of the Act as;

    (7) Where 2 people are members of a couple, they are members of an illness separated couple if:

    (a)they are unable to live together in their home as a result of the illness or infirmity of either or both of them; and

    (b)because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and

    (c)       that inability is likely to continue indefinitely.

    EVIDENCE

22. The Tribunal had before it the following evidence:

    ·The “T Documents” (T1-22, pp 1-204, Exhibit 1);

    ·Supplementary “T Documents” (ST1-9, pp 1-89, Exhibit 2);

    ·Email dated 9 January 2017 with attached information from the Nursing Home (Exhibit 3);

    ·Email dated 12 January 2017 with attached letter from CEO of the Care Facility dated 12 January 2017 (Exhibit 4);

    ·Secretary’s Statement of Issues, Facts and Contentions (including Annexures A-J) dated 9 February 2017 (Exhibit 5); and

    ·The oral evidence of Mr Tom Petrickovic.

    CONSIDERATION

23. It is not in dispute that the Applicant and Mrs Petrickovic remain legally married.

    Respondent’s contentions

24. The Respondent contends that:

    …the applicant does not satisfy the requirements for exclusion of his residence as an asset in accordance with section 44-26A of the Aged Care Act. The evidence indicates that the Applicant was not a member of a couple or an illness separated couple at the relevant time (Exhibit 5 para 22).

25. The Respondent relied on the following evidence and contentions:

    (a)On 10 April 2000, Mrs Petrickovic informed the Department that she had separated from her husband on 8 April 2000 and had changed address (Exhibit 5 Annex F).

    (b)Mrs Petrickovic attended a Centrelink office with an interpreter on 11 May 2000, and the Department’s file contains the following record:

    She advised that she was finding it difficult paying for accommodation for   where she lives and also towards mortgage on her house in Bayswater where her husband is living.  She advised that she wanted to move back to her family home but be assessed as single as her husband have separate bedrooms and were living separated lives before they separated due to his drinking.  I advised her that if she moves back home that I will assess her as a married couple with her husband and if she wasn’t happy about this she could have it reviewed, i (sic.) also advised that her dsp would be reduced based on earnings from her husband (Exhibit 5 Annex F).

    (c)Mrs Petrickovic completed a Departmental form – Assessment of Living Arrangements Separated under one roof on 16 May 2000.  The information contained in the form indicates that the Applicant and Mrs Petrickovic separated on 8 April 2000, and that “we buy our own food, we have two separate fridges… we don’t sleep together & have our own separate lives doing our own thing… we don’t do things together & pay our own way” (Exhibit 5 Annex J).

    (d)A letter from The Multiple Sclerosis Society dated 16 May 2000 was attached to the form.  The letter states: “Her marital situation has now collapsed due to her husband’s severe alcoholism…Mrs Petrickovic has not occupied the marital bed for over a year and only lives in the same house for financial reasons…” (Exhibit 5, attachment to Annex J).

    (e)A Department file entry on 23 May 2000 records Mrs Petrickovic’s return to the Bayswater property and that she was put on the married rate as of 19 May 2000 Exhibit 5 Annex F).

    (f)The Applicant completed a Departmental Mod S – Separation details form on 31 May 2000 indicating that he separated from Bogdanka Petrickovic on 8 April 2000 (Exhibit 5 Annex F).  That same day, the Applicant also completed an Abridged claim for Newstart Allowance in which he indicated that he had a partner and provided Mrs Petrovick’s name and date of birth (Exhibit 5 Annex H).

    (g)On 26 April 2001, Mrs Petrickovic advised that she was separated from the Applicant and that he would not be returning to the family home.  The Department determined that the Applicant was a single person from 19 April 2001 (T2/4).

    (h)In his statutory declaration dated 9 December 2015, Mr Tom Petrickovic stated that the Applicant moved into the care facility on 7 September 2001, due to illness (T13/150).

    (i)The ARO decision letter dated 5 July 2016 included: “On 11 August 2006 you were sent an income statement which informed you that you were not considered to be a partnered person. This letter said that if the details on the letter are incorrect, please contact the department” (T2/5).  The Applicant did not respond to this correspondence.

    (j)A Department record dated 13 November 2015 indicates that Mr Tom Petrickovic advised the Department that he knew nothing about the HA3055 form (T7/81) in which his mother identifies herself as the Applicant’s partner (T7/104). Mr Petrickovic believes this form was completed by the nursing home as his parents and grandmother cannot read or write, and that his parents were friends but had not been in a relationship for years (T22/187).

    (k)In a statutory declaration dated 16 November 2015, Mr Tom Petrickovic stated that the Applicant and Mrs Petrickovic were separated and had not been living together for over 10 years (T10/111).

    (l)On 24 November 2015, Mr Tom Petrickovic completed a Permanent Residential Aged Care – Request for a Combined Assets and Income Assessment form on behalf of the Applicant (T12/121-149).  Responses to questions in the form indicate that the Applicant did not have a partner (T12/122), and that at the date the Applicant was admitted to care his home was not occupied by his partner and his partner did not still occupy his home (T12/125).  Question 49 of the form indicates that the Applicant and his ex-partner each owned 43.5% of the Bayswater property, with the remaining 13% owned by the Department of Housing (T12/126).

    (m)In a second statutory declaration dated 9 December 2015, Mr Tom Petrickovic declared:

    My father Ivan Petrickovic has been separated from my mother Bogdanka (Betty) Petrickovic due to illness from the time he moved into a care facility [omitted]. Ivan moved into the care facility on the 7-09-2001 & remains legally married to Betty to this day (T13/150).

    (n)On 14 May 2016, Mr Tom Petrickovic submitted an application for Financial Hardship Assistance for home Care and Residential Respite Care (T17/154-164), and attached a supporting statement (T18/165-167).  In that document he stated:

    In 2001 my father was no longer able to care for himself and my mother   who suffers with MS (Multiple Sclerosis) was also no longer able to care for my father.  It was in 2001 that my father went into a care facility…My parents became separated due to my father’s illness and my mother remains living in the family home at xx xx Bayswater (T18/165).

    (o)In the supporting statement, Mr Petrickovic also explains that he had assistance completing the forms and a Centrelink representative advised him to write “ex” next to “partner” when he advised that his parents were separated (T11/117, T18/166).  Relevant to this explanation, the Respondent contends;

    His explanation as to why he wrote “ex” on the Centrelink form does not   explain why he informed the department that his parents were friends but had not been in a relationship for years (T22, 187).  Nor is it apparent why Mrs Petrickovic has continuously presented herself to the department as separated from the Applicant since 2001 and received benefits at a single rate (Exhibit 5 para 42).

    (p)Staff at the Nursing Home and Care Facility provided letters in support of the Applicant’s claim (Exhibit 5, Annex D and Annex E).  Relevant to these letters, the Respondent submits:

    These letters contend that Mrs Petrickovic was actively involved in the Applicant’s care whilst at these facilities and always presented herself as his wife.  This evidence is again inconsistent with the fact that the Applicant and Mrs Petrickovic have presented themselves to the department as single persons since 2000 (Exhibit 5 para 43).

    Mr Tom Petrickovic’s evidence

26. Before the Tribunal, Mr Tom Petrickovic presented as honest, straightforward and solicitous for the welfare of his parents.

27. Mr Petrickovic’s oral evidence can be summarised as follows:

    (a)The Applicant, as an immigrant, had worked very hard, but was unable to cope with Mrs Petrickovic’s diagnosis of multiple sclerosis. Consequently, he started drinking heavily, lost his employment and his driver’s licence. As a result, Mrs Petrickovic moved out of the family home but later returned.  The Applicant was diagnosed with dementia and admitted to hospital and subsequently to a care facility and more recently to a nursing home.

    (b)His parents were not separated for any reason other than their health. Mrs Petrickovic has always taken the Applicant cigarettes, clothes and treats and assisted in his care.  He opined that no one accepted that his parents were not a couple.

    (c)He considers the Bayswater property as the family home, the home of his parents.

    (d)He accepted that there had been difficulties in completing various Departmental forms because of a lack of understanding, language difficulties and the Applicant and Mrs Petrickovic being unable to read or write. However, he asserted that there had never been any deliberate attempt to provide false information.

    (e)He lives in the Pilbara and described difficulties experienced when dealing with Centrelink by telephone and his failure to get relevant assistance.  He became more closely involved in his parents’ affairs when the Applicant moved from the care facility to a nursing home (see paragraph 10).

    (f)Departmental correspondence still goes to the Bayswater property address, and prior to 2015 Mrs Petrickovic would have handled 99% of the correspondence.  Recently, he has arranged for documents to be emailed to him wherever he may be.  

    (g)Together with Mrs Petrickovic he remains the Applicant’s guardian, he has never represented his father in a separate sense but rather as a member of a married couple.  Mrs Petrickovic still pays for the Applicant’s funeral plan.

28. The Applicant provided letters of support from the Nursing Home (Exhibit 5 Annex E) and from a former care facility manager (Exhibit 5 Annex D).  The Nursing Home letter states:

    At all times during the admission process and since then I have been of the clear understanding that Mr and Mrs Petrickovic are married and separated only through illness.  Mrs Betty Petrickovic has always presented herself as Ivan’s wife.  I personally answer the phone to Betty on a regular basis as she rings to check on Ivan (at least weekly) to which she always says “this is Ivan’s wife Betty how is he today?”………...I have attached the admission Data Base form on which Betty is recorded as Next of Kin 1: Wife, and also the forms I sent to Centrelink on admission with which I have ticked the box on Marital Status as Married and Partners name as Betty Petrickovic (Exhibit 5 Annex E).

29. Mr Abeysinghe was the facility manager at the care facility during the period 2011 to 2014, and states:

    I would like to confirm that Betty (Mr Ivan’s wife) always represented herself as wife of Mr Petrickovic throughout his stay at the [care facility]… Betty was representative for all of his medical and financial affairs.  She always introduced herself as Ivan’s wife.  Betty visited him on monthly basis, brought his cigarettes and paid out medical bills till her health deteriorated…………during the time that I have known Mr Petrickovic, Betty represented herself as his wife and was actively involved in his care and wellbeing.  I firmly believe that she sincerely represented and conducted herself as his wife (Exhibit 5 Annex D).

    Weighing evidence

30. The Respondent accepts that the evidence before the Tribunal is not unequivocal and that there are inconsistencies, but submits that the preponderance of evidence shows that the Applicant and Mrs Petrickovic have not been in a relationship since April 2001. The Respondent also accepts that there may have been language difficulties in processing documents germane to this matter, but that these difficulties have been mitigated by the involvement of the Applicant’s son, Mr Tom Petrickovic.

1. The relevant evidence in this matter spans a period of some 16 years. In its considerations the Tribunal takes cognisance not only of the language difficulties mentioned in the preceding paragraph, but the evidence of Mr Tom Petrickovic that the Applicant and Mrs Petrickovic cannot read or write. The Tribunal also notes that the Applicant was diagnosed with dementia in 2001 and suffers from schizophrenia.

2. In addition to the material set out above, in weighing the evidence the Tribunal had regard to an Aged Care Client Record dated 24 April 2015 which records Betty Petrickovic as the Applicant’s wife (Exhibit 5 Annex B) and states further:

   Ivan Petrickovic is a 63 year old man whom his wife Betty stated separated from her due to his psychiatric illness.  Ivan has schizophrenia and korsakoffs syndrome and as a result needed to move into a psychiatric hostel, [care facility], with 24/24 support fourteen years ago.  Betty is still involved in his life, although she is wheel chair bound with MS she visits him weekly.  Ivan and Betty have two children, a son in Newman and a daughter in Donnybrook who visit when they come to Perth (Exhibit 5 Annex B p 8).

3. After Mrs Petrickovic returned to the family home, the Bayswater property, in May 2000, the Department determined that she and the Applicant were members of a couple (T2/4).  The ARO decision dated 5 July 2016 states:  “On 26 April 2001 it is noted that Bogdanka advised that she was separated from you and that you had moved into a Nursing Home and would not be returning to the family home. The department determined that you were a single person from 19 April 2001” (T2/4). The Applicant was admitted to a care facility on 7 September 2001.  

4. The material before the Tribunal is clear and not disputed that the Applicant was admitted to care as a consequence of his illness (dementia) (see para 32 above and T13/150).  The Tribunal considers that Mrs Petrickovic’s language limitations and illiteracy raise the possibility that her advice noted in the preceding paragraph could be a reference to the reality of physical separation rather than a reference to the status of her relationship with the Applicant.

5. The Respondent relies in part on an income statement issued to the Applicant on 11 August 2011 (ST7/78) in which the Respondent contends that the Applicant was informed that he was not considered to be a partnered person, and that he should contact the Department if the details on the letter were incorrect.  Perusal of this document suggests that it might have presented some difficulties for the Applicant being illiterate and suffering dementia, and for Mrs Petrickovic whose communication limitations have been mentioned previously. The Tribunal notes that the document contains the phrase “Customer Partnered”.

6. At the time of the decision subject to review in these proceedings, that is 16 March 2016, the Applicant and Mrs Petrickovic were legally married and remain so. Mr Tom Petrickovic told the Tribunal that his parents remain a couple and that Mrs Petrickovic was involved in the Applicant’s welfare and care and continued to pay for the Applicant’s funeral plan and items such as cigarettes and other treats.  The Aged Care Client Record (see para 32 above) and the letters from the Nursing Home (see para 28 above) and the former care facility manager (see para 29 above) attest to Mrs Petrickovic’s involvement in the Applicant’s life at, and prior to, the relevant time.  This evidence indicates that Mrs Petrickovic has always presented herself as the Applicant’s wife and has been involved in his welfare, care, financial affairs and medical affairs.

   CONCLUSION

7. The Tribunal agrees with the Respondent that the evidence in this matter is not unequivocal and that the evidence contains inconsistencies. However, having carefully considered and weighed all the evidence, the Tribunal is reasonably satisfied that at the time of the decision under review:

   (a)the Applicant and Mrs Bogdanka (Betty) Petrickovic were members of a couple;

   (b)the Applicant lived separately from Mrs Petrickovic in a residential aged care facility due to his illness;

   (c)Mrs Petrickovic continued to live in the family home, the Bayswater property; and

   (d)the Bayswater property is exempt from the asset assessment for Aged care purposes.

   DECISION

8. For the reasons given above, the Tribunal sets aside the decision under review, and, in substitution decides that the Applicant is a member of a couple and that the Bayswater property is exempt from the asset assessment for Aged Care purposes.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant

Dated: 7 June 2017

Date of hearing:	23 February 2017
Representative for the  Applicant:	Mr T Petrickovic
Representative for the  Respondent:	Mr D Lucas
Solicitors for the Respondent:	Mills Oakley Lawyers