Rostom and Secretary, Department of Health (Social services)

This matter concerned an application for a hardship supplement under section 44-31 of the Aged Care Act by Professor Rostom, who was residing in an aged care facility. The Secretary, Department of Health, had refused the application, determining that Professor Rostom was not eligible because his son, the assurer, had the capacity to provide financial support. Professor Rostom, through his son, contended that the assurer's financial position had been significantly compromised, rendering him unable to meet his obligations under an Assurance of Support and thus making his father eligible for the hardship supplement.

The primary legal issue before the Tribunal was whether Professor Rostom was eligible for a hardship supplement, which turned on whether his assurer had the capacity to provide financial support. This required the Tribunal to consider the assurer's financial circumstances, including his income, expenses, assets, and liabilities, in light of the Assurance of Support he had provided. The Tribunal also had to consider whether the circumstances of the assurer constituted financial hardship for the purposes of the Aged Care Act, and whether Professor Rostom had access to financial assistance from any other source.

The Tribunal reasoned that the assurer's claims of financial hardship were not supported by the evidence. It noted that the costs associated with Professor Rostom's medical evacuation to Australia were met by Professor Rostom himself, not the assurer. Furthermore, the Tribunal found that the assurer possessed significant assets, including substantial equity in his home and a redraw facility on his home loan, and that his income had exceeded his expenses over a six-month period. The Tribunal also considered that the assurer had voluntarily chosen to prioritise mortgage repayments over meeting his father's aged care costs and that the need for aged care was not an unforeseen circumstance given Professor Rostom's age and medical history. The Tribunal concluded that the assurer had the capacity to provide financial support to Professor Rostom under the Assurance of Support.

Consequently, the Tribunal affirmed the decision of the Administrative Appeals Tribunal that Professor Rostom was not eligible for a hardship supplement under section 44-31 of the Aged Care Act, as he had access to financial assistance from the assurer. The Tribunal found that a determination of hardship should not be made and that Professor Rostom was ineligible for the supplement.