Romas and Secretary, Department of Health (Social services)

This matter concerned an application for review of a decision by an authorised review officer of the Department of Health, which confirmed a prior decision not to treat the applicant's interest in a property as an exempt asset for the purposes of the aged care means test under the *Aged Care Act 1997* (Cth). The applicant and his wife were registered proprietors of the property, which had been their principal home. The applicant moved to a retirement community on 17 May 2018, having resided at the property for the preceding five years. The core of the dispute was whether the property qualified as an exempt asset under the Act, specifically concerning the occupation of the property by a close relation.

The Tribunal was required to determine three key questions: first, whether a close relation of the applicant occupied the property for the five years prior to 17 May 2018; second, if so, whether that close relation was eligible to receive an income support payment during that period; and third, whether the applicant's interest in the property was an exempt asset for the aged care means test under section 44-26A of the Act. The applicant contended that a close relation had occupied the property for the requisite five-year period, while the respondent's position was outlined in its Statement of Issues, Facts and Contentions.

The Tribunal considered the evidence, including statements from the applicant and his sons, letters from housing facilities, a disability support pension card, and Centrelink records. It was accepted that the applicant was a "homeowner" under the Subsidy Principles 2014, and that a close relation was indeed a close relation within the meaning of the Act and had been in receipt of a disability support pension. However, the central issue revolved around the interpretation of "occupied" in section 44-26A(6)(c) of the Act. The Tribunal found that while the close relation had resided at the property from time to time and kept belongings there, this did not constitute occupation for the five years prior to 17 May 2018 as required by the Act. The Tribunal affirmed the decision, meaning the value of the applicant's interest in the property was not an exempt asset for the aged care means test.