Romas and Secretary, Department of Health (Social services)

[2019] AATA 2368

Romas and Secretary, Department of Health (Social services) [2019] AATA 2368 (31 July 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2018/3571
General Division  )

Re: Andreas Romas
Applicant

And: Secretary, Department of Health
Respondent

CORRIGENDUM

TRIBUNAL:  R. Cameron, Senior Member

DATE OF CORRIGENDUM:            19 August 2019

PLACE:           Melbourne

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 to remove the full name of ‘Close Relation A’ and any information tending to reveal their identity.

.............[sgd]......................................................

Senior Member

Division:GENERAL DIVISION

File Number:          2018/3571

Re:Andreas Romas

APPLICANT

AndSecretary, Department of Health

RESPONDENT

Decision

Tribunal:R. Cameron, Senior Member

Date:31 July 2019

Place:Melbourne

The Tribunal affirms the decision under review.

............[sgd]............................................................

R. Cameron, Senior Member

Catchwords

AGED CARE – whether interest in a property to be accepted as an exempt asset for the purposes of aged care means test in section 44-22 of Aged Care Act 1997 – meaning of occupy – whether close relation of applicant was in receipt of income support and occupied property for past five years within meaning of section 44-26A(6)(c) of Aged Care Act 1997 – decision affirmed

Legislation

Aged Care Act 1997

Subsidy Principles 2014

Evidence Act 1995 Cth

Cases

Jones v Dunkel (1959) 101 CLR 298

Secondary Materials

REASONS FOR DECISION

R. Cameron, Senior Member
31 July 2019

INTRODUCTION

1. The Applicant seeks review of a decision made by an authorised review officer of the Respondent on 13 April 2018 (“the decision”). The decision confirmed a previous decision not to allow the value of the Applicant’s interest in a property situated in a suburb of Melbourne (“the Assessable Property”) to be accepted as an exempt asset for the purposes of applying an aged care means test under section 44-22 of the Aged Care Act 1997 (“the Act”).

   BACKGROUND FACTS

2. The Applicant and his wife were the registered proprietors of the Assessable Property at all relevant times.

3. Some years ago the Applicant’s wife moved into the Victoria Grange Retirement Community (“Victoria Grange”). On 17 May 2018 the Applicant moved from the Assessable Property to join his wife at Victoria Grange. There is no dispute that for the previous five years the Applicant resided continuously at the Assessable Property.

4. Upon moving to Victoria Grange the Applicant applied for a residential care subsidy under the provisions of the Act. He completed the appropriate documentation. He sought to have the Assessable Property treated as an exempt asset when applying the aged care means test under the Act.

5. Whilst it is not strictly relevant, the Tribunal considers that it is appropriate to mention that the Applicant’s son, Nick Romas, who appeared on the Applicant’s behalf at the hearing, emphasised that inclusion of the Assessable Property as an asset when applying the aged care means test would have a significant effect on his father (and for that matter his mother), in terms of their future financial arrangements. The Tribunal acknowledges this fact. However, as was explained to Nick Romas during the hearing of this application, ultimately the Tribunal must determine this matter according to what the Act requires it to do.

   ISSUES TO BE DECIDED.

6. There is some variation between the parties as to the correct issues to be decided in this application.[1]

   [1] The Applicant who was not legally represented but represented by his son Nick, who is a trained accountant, contended in short, that the issue to be determined was whether a close relation occupied the Assessable Property for the five-year period to 17 May 2018. The Respondent identified the issues in paragraph 2 of its Statement of Issues, Facts and Contentions. Overall, nothing really turns on the distinction between the approaches adopted by the parties. The Tribunal felt it best to simply reformulate the questions as it has done in paragraph 7 of these reasons.

7. The Tribunal considers that there are three questions to be considered in this review. They are:

   (a)Did a close relation of the Applicant (“Close Relation A”), occupy the Assessable Property for five years prior to 17 May 2018?

   (b)If so, during the five years prior to 17 May 2018 was Close Relation A eligible to receive an income support payment during that time?

   (c)Is the value of the Applicant’s interest in the Assessable Property an exempt asset for the aged care means test, in accordance with the provisions of section 44-26A (“The Value of a person’s assets”) of the Act.

   THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL

8. There was only documentary evidence placed before the Tribunal.

9. The Applicant tendered what was described as a Statement of Evidence dated 25 October 2018, signed by himself and two sons, Nick and Peter. Attached to that statement were letters dated 4 October 2018, from the Housing Manager of a Victorian community housing facility (‘Community Housing B’) and a representative a special accommodation service in Melbourne (‘Special Accommodation C’). Also attached to the Statement of Evidence was a copy of Close Relation A’s DSP Card.

10. Also tendered by the Applicant was an email dated 13 December 2018 that was sent by him to the Tribunal with an attached document that appeared to be either a computer- generated business record—or a “screen dump”—extracted from Centrelink’s computer database recording changes of home address, or perhaps more accurately present residential addresses as notified by Close Relation A to it on the dates recorded therein.

11. The Respondent tendered the bundle of documents pursuant to section 37 of the Administrative Appeals Tribunal Act (the T documents) comprising 135 pages, it also tendered additional documents comprising a further 12 pages.

12. The Respondent filed a Statement of Facts, Issues and Contentions.

13. Both parties made submissions orally to the Tribunal at the hearing of the application.

    THE APPLICATION OF THE ACT

14. Chapter 3 of the Act provides for the Commonwealth to pay subsidies to approved providers of residential care on behalf of an aged care recipient.

15. Subdivision 44-D - “Reductions in subsidy”, amongst other things, applies a means test to the subsidy payable to a care recipient. Section 44-22 – “Working out the means tested amount” – provides a formula for calculating the means tested amount of subsidy paid to a care recipient by means of what is described as a “Means tested amount calculator” in section 44 -22 (1).[2]

    [2] The whole of this subsection is referred to for its full force and effect. It specifies a ten-step process for the calculation of the means tested amount.

16. For the purposes of this application, section 44-26A – “The value of a person’s assets” – provides that the value of a care recipient’s assets for the purposes of section 44-2 is to be calculated in accordance with the Subsidy Principles.[3]

    [3] Section 44-26A (1) of the Act.

17. Subsection 44-26A (6) is the fulcrum to this application. It provides as follows:

    “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:

    (c) a close relation of the person who:

    (i)         had occupied a home for the past 5 years; and

    (ii)        was eligible to receive an income support payment at the time”.

18. Section 48 of the Subsidy Principles 2014 defines the meaning of a “homeowner” for the purposes of section 44-26B (1) of the Act. It requires the person concerned to have a right or interest in one residence that is the person’s principal home.[4]

    [4] It should be noted that section 44-26B of the Act provides that the term "homeowner" has the meaning given by the Subsidy Principles.

    CONSIDERATION.

19. There is no doubt that the Applicant was a homeowner within the meaning of section 48 of the Subsidy Principles 2014. He has a right and interest as a proprietor in the Assessable Property, which was his principal home at all material times. Certainly, prior to his move to Victoria Grange. This is not in dispute.

20. The Tribunal accepts on the evidence that Close Relation A was a close relation of the Applicant within the meaning of section 44-26A (6) of the Act. This was not an issue in dispute.

21. The evidence also reveals that, at all relevant times, including the five years prior to 17 May 2018, Close Relation A had been in receipt of a disability support pension; which falls within the meaning of an income support payment of section 44-26A (6) of the Act. Likewise, this was not a matter in dispute.

22. Unfortunately, Close Relation A’s life descended into a spiral of drug addiction and crime. They have served multiple terms of imprisonment for a variety of crimes. They have been unable to address their drug addiction. This continuing drug addiction culminated in a deliberate heroin overdose in 2015 resulting in a lengthy admission to hospital and subsequent transfer to a specialist rehabilitation unit. The Tribunal accepts that this unfortunate, if not itinerant lifestyle has been very distressing for Close Relation A’s family. They have done their best for Close Relation A and this has included, over many years, Close Relation A residing in the Assessable Property from time to time. Their family kept a room in the house for them and let them stay there, with the best of intentions, as of course, Close Relation A had nowhere else to go.

23. The question that remains to be answered is whether Close Relation A occupied the Assessable Property for the five years prior to 17 May 2018, when the Applicant moved into the Victoria Grange aged care facility.

24. The Applicant contends that Close Relation A has long lived at the Assessable Property and certainly did so for five years prior to 17 May 2018. The evidence relied on in support of this argument is that the Assessable Property had long been Close Relation A’s primary home, throughout the five years prior to 17 May 2018, and the many years before, because Close Relation A always kept their personal belongings and possessions at the property. Close Relation A had long occupied a bedroom, which was well-known as their room throughout the relevant period and for many years beforehand.[5]

    [5] The contents of the Statement of Evidence of 25 October 2018 are referred to. Additionally, although not evidence, submissions were made to this effect by Nick Romas at the hearing of this application and have been taken into account by the Tribunal.

25. The contentions of the Applicant were further developed by arguing that Close Relation A’s periods of absence from the Assessable Property were because of the necessity for hospitalisation, subsequent treatment and rehabilitation due to suffering a serious injury. In other words, the Assessable Property was their home or residence, occupied by them within the meaning of section 44-26A (6) of the Act.

26. Close Relation A was hospitalised from March 2015 to June 2015. Thereafter, they were at a rehabilitation institution until September 2015, obtaining further treatment for their injury.

27. Close Relation A was then housed in special temporary accommodation for the period between 2015 and 2017, particularly at Special Accommodation C and Community Housing B. After mid 2017 they returned to the Assessable Property.

28. The Respondent’s contentions will not be repeated in detail as they are adequately outlined in its Statement of Facts, Issues and Contentions. It seeks to construe section 44-26A (6) (c) of the Act as distinguishing between the concepts of “a home” and “occupation”. The contention is that they have a separate meeting.

29. In Paragraph 26 of its Statement of Facts, Issues and Contentions, the Respondent identifies evidence in support of its contention that Close Relation A occupied several different premises other than the Assessable Property during the five years prior to 17 May 2018. This analysis culminates in a contention that Close Relation A occupied premises other than the Assessable Property for a period of approximately 3 years and 10 months in the five-year period preceding 17 May 2018.

30. The concept of occupancy within the meaning of section 44-26A (6) (c) of the Act is not a difficult one to define. On a true and proper construction, it must require actual possession or residence within the Assessable Property given that the section contemplates occupancy of a dwelling or house.

31. Regrettably for the Applicant, the preponderance of the evidence leads the Tribunal to conclude that Close Relation A did not occupy the Assessable Property for the five years prior to 17 May 2018.

32. It should be borne in mind that, unfortunately, Close Relation A did not give evidence before the Tribunal. Nick Romas gave an explanation of why they did not attend the hearing, and the Tribunal accepts this explanation. Nick Romas presented as a conscientious and fair-minded individual who had no cause other than to approach the application to the Tribunal with complete candour. Therefore, no adverse inference will be drawn against the Applicant in a Jones v Dunkel[6] sense, by reason of the non-attendance of Close Relation A at the Tribunal.

    [6] (1959) 101 CLR 298. It should also be recorded that Mr. Munro who appeared for the Respondent did not invite the Tribunal to draw such an inference.

33. Prison records were in evidence[7] which reveal that Close Relation A was incarcerated from 2013 to 2014 for a period of over 300 days. Further prison records reveal that they were also in custody for over 50 days in 2014. Close Relation A served another custodial sentence of over 170 days from 2014 to 2015. The Tribunal cannot find that Close Relation A was occupying the Assessable Property as required by section 44-26A (6) of the Act whilst they were in lawful custody serving prison sentences. Regrettably, they were occupying a prison cell. This was not disputed.

    [7] Document ST-3 of the Supplementary T documents.

34. A letter from Community Housing B states that Close Relation A resided in a rooming house. The letter states that the premises are not supported accommodation but residents usually move there to assist with housing stability; and in some cases for rehabilitation while recovering from physical, psychiatric and addiction related conditions. Close Relation A was there from 2016 to 2017; well over 12 months. On this evidence, it cannot be suggested that Close Relation A occupied the Assessable Property during that time. The letter does not say whether Close Relation A was at Community Housing B for the purposes of assisting with their rehabilitation or otherwise. If they were in the rooming house (which was not supported accommodation) to assist with their rehabilitation, one is minded to ask why they could not have done so at the Assessable Property. As best one can construe the evidence, they were an inmate of Community Housing B as a resident.

35. Similarly, the printout from Centrelink tendered by the Applicant in evidence reveals that Close Relation A listed their home address as in Mount Waverley from in 2004.[8] The printout also records the time spent at Community Housing B and Special Accommodation C. There were also in evidence “Rent Certificates” furnished by Close Relation A to Centrelink.[9] Those Rent Certificates required Close Relation A to specify (in Part A) “Your accommodation details”. The response in both cases was to provide details of their residential address as Special Accommodation C. Upon reading those letters, the Rent Certificates and the contents of the Centrelink printout, the conclusion drawn by the Tribunal is that Close Relation A was an occupant of the premises referred to in those documents, rather than the Assessable Property, on those dates.

    [8] The Respondent included the same document or a version of it in the T documents at document T 42.

    [9] Documents T 28 and T 31.

36. There is other documentary evidence which supports a finding that Close Relation A was occupying places other than the Assessable Property in the five years prior to 17 May 2018. In a reasonably extensive medical report from 2015,[10] Close Relation A’s Consultant Psychiatrist records that Close Relation A was currently living at Special Accommodation C. Also, in early 2016 Centrelink sent Close Relation A a letter containing the outcome of an internal review concerning Close Relation A’s claim for a Disability Support Pension. The letter was addressed to them at Special Accommodation C.[11]

    [10] Document T 32 of the T documents.

    [11] The letter is document T 35 of the T documents.

37. If Close Relation A had considered the home they were occupying to be the Assessable Property, one would have expected them to have informed Centrelink in those terms. Similarly, if others were notifying Centrelink of the premises Close Relation A currently occupied, one would have expected the Assessable Property to have been recorded if it were indeed the premises they occupied at that time. The entries on the Centrelink printout have to be treated as an admission by Close Relation A of where they considered their home to be, and the premises they occupied from time to time. The information recorded on the printout was derived from information provided by Close Relation A to Centrelink. As business records (and “Commonwealth records”)[12] they should also be received in evidence for all purposes. This includes a representation of fact made for the business or purposes of the Commonwealth and contained in its document that is—or has been—part of the records of such business or purposes and will be evidence of the facts recorded therein. Therefore, there is no reason to conclude the entries in the records are anything other than accurate and note the addresses occupied by Close Relation A recorded therein, derived from the information they supplied.

    [12] See section 182 of the Evidence Act 1995 Cth.

38. The Tribunal acknowledges that certainly as and from March 2015, when the onset of their serious injury occurred, there was more likely than not some cognitive impairment suffered by Close Relation A. Unfortunately, as difficult as it may have been, it does not alter the fact that Close Relation A was an occupant of several premises other than the Assessable Property during the relevant five year period prior to the Applicant commencing residence at Victoria Grange.

39. Given that Close Relation A was an occupant of several premises over some time during the five years prior to the Applicant entering Victoria Grange on 17 May 2018, rather than the Assessable Property, and they could not occupy two premises at once, the Tribunal has to conclude that Close Relation A was not an occupant of the Assessable Property for five years prior to 17 May 2018 and therefore for the purposes of section 44-26A (6) of the Act.

40. By reason of the foregoing matters, the value of the Applicant’s interest in the Assessable Property was not an exempt asset for the aged care means test in accordance with the provisions of section 44-20 6A of the Act.

    DECISION.

41. For the reasons outlined above, the Tribunal affirms the decision.

42.     I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

.............[sgd]...........................................................

Associate

Dated:  31 July 2019

Date of hearing:	22 July 2019
Advocate for the Applicant:	Mr Nick Romas
Solicitor for the Respondent:	Mr Cameron Munro