The Estate of the late Gertrude Mills and Secretary, Department of Health and Aged Care (Social services)
[2023] AATA 3140
•5 October 2023
The Estate of the late Gertrude Mills and Secretary, Department of Health and Aged Care (Social services) [2023] AATA 3140 (5 October 2023)
Division:GENERAL DIVISION
File Number(s): 2022/3799
Re:The Estate of the late Gertrude Mills, through her
Executor and Trustee, Ms Leisa Jane Hirschfeld
APPLICANT
AndSecretary, Department of Health and Aged Care
RESPONDENT
DECISION
Tribunal:Senior Member J Rau SC
Date:5 October 2023
Place:Adelaide
The Decision under review is Affirmed
..................................[Sgnd]......................................
Senior Member J Rau SC
Catchwords
AGED CARE-Exclusion of residence for the purpose of asset assessment- “occupation” of the home considered- “carer” considered-decision under review is affirmed
Legislation
Aged Care Act 1997 (Cth) s44-26A
Social Security Act 1991 (Cth)
Cases
Jones v Dunkel (1959) 101 CLR 298
Milne v Secretary, Department of Families, Housing, Community Service and Indigenous Affairs [2008] AATA 689Housing, Community Services and Indigenous Affairs [2008] AATA 689
Secondary Materials
Subsidy Principles 2014 (Cth)
Aged Care (Subsidy, Fees and Payments) Determination 2014
Department of Social Services, Social Security Guide (Web Publication, 20 September 2023)
REASONS FOR DECISION
Senior Member J Rau SC
5 October 2023
This application is made by Ms Leisa Hirschfeld (the Applicant) in her capacity as Executor and Trustee of the estate of the late Mrs Gertrude Mills.
Issue
The issue in this application is the value of Mrs Mills’ assets, for residential aged care purposes as at 29 October 2021. In particular:
a.whether the $175,239.20 capped value of Mrs Mill’s former principal residence (“the home”) should be taken into account as an asset for the purpose of calculating her aged care fees; or
b.it should be excluded pursuant to subsection 44-26A of the Aged Care Act 1997 (the Aged Care Act) on the basis that it was occupied by Ms Leisa Jane Hirschfeld and either:
i.Ms Hirschfeld was a carer of Mrs Mills who had occupied the home for the past 2 years prior to Mrs Mills entering residential aged care and was eligible to receive an income support payment at the time; or
ii.Ms Hirschfeld was a close relation of Mrs Mills who had occupied the home for the past 5 years prior to Mrs Mills entering residential aged care and was eligible to receive an income support payment at the time.
The Hearing
3.The Hearing was conducted in person on 30 August 2023. The Applicant was represented by her partner, Mr Rodger Fromm. The Respondent was represented by Mr Riley Calaby of Services Australia.
4.Mr Fromm elected, despite the Tribunal’s offer of an adjournment for the purpose of doing so, not to call any witnesses, or to produce any further evidence pertinent to the matters raised in the Respondent’s SOFIC, filed on 10 August 2023.[1]
[1] Document 1.
5.The Applicant’s evidence was therefore confined to the written materials before the Tribunal, in particular the filed T-Documents.[2] These documents contain, inter alia, a brief statutory declaration by Ms Hirschfeld dated 25 March 2022[3] and a letter from Ms Hirschfeld dated 12 August 2021.
[2] Document 2.
[3] Ibid, T10, pp 103-104.
6.The failure to call Ms Hirschfeld as a witness is relevant. She was best placed to provide evidence to the Tribunal relevant to the determination of critical factual issues in this case. For example, she could have assisted with details of the periods that she resided with Mrs Mills and the assistance that she provided to her. The Applicant’s failure to call Ms Hirschfeld leaves open the inference that if called, she would not have assisted the Applicant’s case. The Tribunal drew this issue to Mr Fromm’s attention, in the context of offering him an adjournment. He elected to press on.
7.In Jones v Dunkel,[4] it was held that an adverse inference may be drawn against a party who fails to call a witness, where that witness might be expected to support their case. As stated by Kitto J:
“But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence.”[5]
[4] (1959) 101 CLR 298.
[5] Ibid 308, 5.
The following facts were agreed
8.The Tribunal took Mr Fromm through the following facts as set out in the Respondent’s SOFIC. He agreed that they were correct.
9.On 3 August 2021, Mrs Mills entered residential aged care at [Redacted], Goolwa.[6]
[6] Document 2, T7, p 66; T15, p 129.
10.Before entering residential aged care, Mrs Mills had lived at the former principal home (the home).[7]
[7] Ibid, T7, p 67; T11, p 106.
11.On 5 September 2021, a delegate of the Secretary wrote to Mrs Mills[8] to request she provide details of her income and assets, and that until Mrs Mills' income and assets were assessed, she could be asked to pay:
a.$52.71/day basic daily fee;
b.up to $259.26/day means-tested care fee; and
c.an accommodation payment.
[8] Ibid, T15, p 119.
12.On 26 September 2021, a delegate of the Secretary wrote to Mrs Mills[9] to
request her response to the letter dated 5 September 2021.
[9] Ibid, T15, p 121.
13.On 11 October 2021, a delegate of the Secretary wrote to Mrs Mills[10] about her
[10] Ibid, T15, p 129.
daily fees as a resident of [Redacted] Lodge, namely:
a. for the period 3 August 2021 to 20 September 2021:
i. $1,439.52 total means-tested care fees (or an average of $29.99/day during that period);
ii. the maximum basic daily fee for that period; and
iii. the accommodation payment agreed directly with the residential aged care service provider prior to entering care; and
b. from 20 September 2021:
i. $53.56/day maximum basic daily fee;
ii. $nil/day means-tested care fee; and noting
iii. '[y]ou remain liable to pay the accommodation payment agreed prior to entry. We do not set the amount of the accommodation payment as it is a matter that is agreed between you and your service provider'.
14.On 27 October 2021, a delegate of the Secretary wrote to Mrs Mills[11] to advise, effective from that day, her residential aged care daily fees would be:
a.$1.45/day means-tested care fee; and
b.$53.56/day maximum basic daily fee.
[11] Ibid, T15, p 123.
15.On 29 October 2021, a delegate of the Secretary decided that Mrs Mills’ assets for aged care purposes were $228,372.15 and her net fortnightly income for aged care purposes was $1,034.77.[12] Mrs Mills' assets were assessed as comprising:[13]
a.$175,239.20 capped value of the home;
b.$43,132.95 in financial accounts; and
c.$10,000.00 in other assets.
[12] Ibid, T15, pp 125-128.
[13] Ibid, T15, p 127.
16.On 30 November 2021, Ms Hirschfeld lodged an Aged Care - Carer or close relation
assessment (SA483) form with the Agency.[14] In that form, Ms Hirschfeld
stated:a.her home address was 'PO Box [Redacted], Millicent SA 5280';[15]
b.that she had been living with Mrs Mills for 6 years.[16] The form directed at this question to '[p]rovide documents, for example, account statements or utility bills or receipts showing the address(es) for the period you have lived with this person', however none were lodged with the completed form;
c.that her current circumstances were 'none of the above' from a list that relevantly included 'I am a carer'.[17]
[14] Ibid, T4, pp 45-49.
[15] Ibid, T4, p 45 at question 2.
[16] Ibid, T4, p 45, at question 2.
[17] Ibid, T4, p 46, at question 5.
17.On 17 December 2021, an officer of the Agency determined that Ms Hirschfeld was not a protected person in relation to the home, on the basis that no documents had been provided to show Ms Hirschfeld had lived at the home or to show Ms Hirschfeld's income and assets.[18] This had the effect that the capped value of the home continued to be an asset of Mrs Mills for aged care purposes.
[18] Ibid, T5, p 53; T13, p 115 at Doc 14 of 17.
18.On 12 January 2022, a review was requested of the decision to assess Mrs Mills' assets on the basis that Ms Hirschfeld was not a protected person in relation to the home.[19]
[19] Ibid, T13, p 115 at Doc 15 of 17.
19.On 15 January 2022, a delegate of the Secretary wrote to Mrs Mills[20] to advise her residential aged care daily fees effective from 1 January 2022 were:
a.$1.45/day means-tested care fee; and
b.$53.56/day maximum basic daily fee.
[20] Ibid, T15, p 133.
20.On 30 January 2022, Ms Hirschfeld lodged a further Aged Care - Carer or close relation assessment (SA483) form with the Agency.[21] In that form, Ms Hirschfeld
stated:
a.her home address was '[Redacted] Norfolk Av, Victor Harbor SA 5211';[22]
b.that she had been living with Mrs Mills for 6 years.[23] The form directed at this question to '[p]rovide documents, for example, account statements or utility bills or receipts showing the address(es) for the period you have lived with this person', however again no such documents were lodged with the completed form;
c.that her current circumstances were 'none of the above' from a list that
relevantly included “I am a carer”.[24]
[21] Ibid, T6, p 55-59.
[22] Ibid, T6, p 55 at question 2.
[23] Ibid, T6, p 55 at question 2.
[24] Ibid, T6, p 56 at question 5.
21.On 30 January 2021, Ms Hirschfeld also lodged with the Agency documents including:
a.Residential Aged Care - Calculation of your cost of care (SA457) form on
behalf of Mrs Mills.[25] This relevantly stated:
[25]Ibid, T7, p 63-83.
i.that Mrs Mills entered residential aged care on 3 August 2021;[26]
[26] Ibid, T7, p 66.
ii.upon entering aged care, Mrs Mills owned her home at 23 Norfolk Avenue, Victor Harbor SA 5211 and she stilled owned this home;[27]
[27] Ibid, T7, p 67.
iii.the estimated market value of the home was '$260,00' [sic- presumably intended as $260,000];[28]
[28] Ibid, T7, p 68.
iv.that upon entering care a close relative lived in the home, who had occupied the home for at least 5 years - and this person still lived in the home;[29]
[29] Ibid, T7, p 70.
v.that the value of Mrs Mills' household contents as at the date she entered residential aged care was $10,000;[30] and
vi.that Mrs Mills held a bank account with Bendigo Bank with an account number ending in 9518, with a balance of $36,906.78;[31]
b.an Authorising a person or organisation to enquire or act on your behalf (SS313) form nominating Mr Rodger Fromm as a person permitted to enquire and a person permitted to update in respect of Mrs Mills' dealings with the Agency[32] (although this form was not signed by Ms Hirschfeld as attorney for Mrs Mills);[33]
c.a letter dated 12 August 2021[34] stating:
[ ... ]
“Mrs Gertrude Mills is 96 years of age on 20'h August 2021, she lost her husband of over 70 years 6 years ago. After her husband's death 28th September 2015 Gertrude found it difficult to carry out her normal activities. As I was appointed enduring power attorney and her Granddaughter, I felt it was my responsibility to be by her side in need (protected person). I have spent much of my time living, caring and supporting Gertrude (Nanna) on a regular basis.
I have done this for the past 6 years with out any government support which has put a financial impact on my partner who has supported me through this difficult time. As I have spent most of my time living with her, caring for Nanna for the past 6 years the only residence f have is her home now to stay and visit her in residential aged care. Because of the previous situation explain above and the ongoing care and visiting of my Nanna her house is a necessity for me in the future, I believe this comes under the protected asset act.”[ ... ]
[30] Ibid, T7, p 73.
[31] Ibid, T7, p 73.
[32] Ibid, T8, pp 85-88.
[33] Ibid, T8, p 87.
[34] Ibid, T8, p 89.
22.On 3 March 2022, an officer of the Agency spoke to Mr Fromm on the telephone regarding provision of evidence that Ms Hirschfeld had lived at the home prior to Mrs Mills entering aged care. The officer's file note of the conversation relevantly recorded that Mr Fromm had stated:[35]
a.Ms Hirschfeld did not have a driver's licence, did not use her bank card often in Victor Harbor, and had only one phone bill in her name which remained at the postal address in Millicent;
b.that evidence could not be obtained from Mrs Mills' doctor in Victor Harbor as
they had had a falling out and changed doctors;
c.that it may be possible to obtain a letter from an MP who he and Ms Hirschfeld personally knew to confirm that Ms Hirschfeld was predominantly living in Victor Harbor in recent years (and that she did 'go home to M[i]llicent' on occasion but more time was spent in Victor Harbor).
[35] Ibid, T13, p 111 at Annotate by G61 on 3 Mar 2022.
23.On 11 March 2022, Ms Hirschfeld changed her home address recorded with the Agency to [Redacted] Norfolk Avenue, Victor Harbor SA 5211.[36] Ms Hirschfeld's address had previously been recorded with the agency as Main Road, Nildottie SA 5238 since 29 June 2007.[37] Ms Hirschfeld's postal address, which had been recorded as PO Box [Redacted] Millicent SA 5280 since 31 March 2014, was not updated.[38] On 25 March 2022, Ms Hirschfeld completed a statutory declaration which stated:
[36] Ibid, T12, p 107; Document 2, T14, p 117 at Doc 1 of 3.
[37] Ibid, T12, p 107.
[38] Ibid, T12, p 107.
“Gertrude’s husband died on 28th September 2015 aged 89. Gertrude was 90 yrs
4. Because of Gertrude’s age and health she was unable to cope with the death of her husband (my Grandfather) of over 70 years. As her Granddaughter and only family
member who cared for her I spent much of my time living with her caring for her helping with her day to day living.5. As Gertrude’s health deteriorated in the last 3 years I spent most of my time living with Gertrude
6. In July 2021 her health deteriorated to the extent I had to, with the advice from her doctor put her into aged care facilities
7. I am still living at the residence [Redacted] Norfolk Ave Victor Harbor so I can still visit Gertrude (Grandmother) on a regular basis, I pick up and wash her clothes regularly. Without the residence I would not be able to care, support for Gertrude in her time of need at her age of 96 years.
8. My partner Rodger Fromm and / lived on a farm 400k away from Victor Harbor where my partner Rodger still works. As I do not drive I depend on Rodger for my travel who travels regularly from the farm to Victor Harbor.[ ... ][39]
[39] Ibid, T10, pp 103-104.
24.On 30 March 2022, a social worker employed by the Agency spoke to Mr Fromm on
the telephone.[40] The file note of the conversation recorded that Mr Fromm had stated:[41]
[40] Ibid, T13, pp 109-110.
[41] Ibid, T13, p 110.
a.he (Mr Fromm) and Ms Hirschfeld had 'monitored and stayed with [Mrs Mills] over some 6-7 yrs as her health and mental health status has declined progressively, esp over the past 2-3 years; her husband had died just prior and she managed living alone, more or less well as time progressed';
b.'as [Mrs Mills'] health declined, [Ms Hirschfeld] spent more and more time (week on/week off), and for longer periods at a time living with [Mrs Mills] and took her own respite weeks between the homes'; and
c.that the decline in Mrs Mills' health had progressed more markedly following pacemaker surgery in 2021 (reportedly without consultation with Ms Hirschfeld as Mrs Mills' attorney, resulting in a falling-out with the GP who had referred Mrs Mills for that surgery) and following this Mrs Mills had entered respite care.
25.On 31 March 2022, a statutory declaration made by Ms Hirschfeld on 25 March 2022 was lodged at the Agency's Millicent agent.[42]
[42] Ibid, T10, pp 103-104.
26.On 7 April 2022, a Review Officer of the Agency reviewed and affirmed the decision under review, pursuant to section 85-5 of the Aged Care Act[43].
[43] Aged Care Act 1997 (Cth).
27.On 6 May 2022, Ms Hirschfeld lodged an application for review with the Administrative Appeals Tribunal (General Division) (AAT2), on behalf of Mrs Gertrude Mills[44] The application was lodged by Ms Hirschfeld in her capacity as attorney for Mrs Mills[45] and stated that the Applicant disagreed with the decision under review on the basis that '[w]e cannot supply sufficient evidence that the granddaughter has continued presence in the principal home to be eligible for protected person'.
[44] Document 2, T1, p 1-5.
[45] Ibid, T1, p 5.
28.On 10 May 2022, Ms Hirschfeld lodged further documents with the Tribunal Registry,
including:
a.an authority for Mr Fromm to act as representative;[46]
[46] Ibid, T1, p 9.
b.a medical report dated 7 August 2021 by Dr GA Wildman, general practitioner,
opining that Mrs Mills lacked capacity;[47]
[47] Ibid, T1, p 10.
c.a copy of deed executed by Mrs Mills on 3 December 2013 granting an enduring power of attorney upon her incapacity to her husband Mr Arthur Mills, or if he should pre-decease her or suffer an incapacity, granting an enduring power of attorney to Ms Hirschfeld;[48]
[48] Ibid, T1, pp 11-15.
d.a copy of a death certificate recording Mr Mills' date of death as
28 September 2015; and
e.a further application for review form dated 10 May 2022.[49] In that form
[49] Ibid, T1, pp 17-19.
the Applicant stated that she sought review on the basis that:
“Gertrude Husband passed away 7 years ago since then Leisa Hirschfeld been providing support for her grandmother Gertrude. On 3rd August 2021 Gertrude entered aged residential care. Leisa is entitled to be eligible for protected person to Gertrude's house. Centre/ink has not granted this because of sufficient evidence that she has continued presence in the principle home.”
29.On 17 June 2022, Mrs Mills passed away.
30.On 22 December 2022, Ms Hirschfeld's partner Mr Rodger Fromm provided a certified copy of an order of the Supreme Court of South Australia granting probate of the late Applicant's estate to Ms Hirschfeld as executor with the Tribunal, and on 2 February 2023 the Tribunal Registry forwarded same to the Respondent[50].
[50] Ibid, T1, p 11-14.
31.On 1 March 2023, the Tribunal made an order amending the title of the proceedings to The Estate of the late Gertrude Mills, through her Executor and Trustee, Ms Leisa Jane Hirschfeld and Secretary, Department of Health and Aged Care.
32.On 6 April 2023, the Secretary wrote to Mr Fromm as the Applicant's representative, inviting the Applicant to provide copies of documents that may tend to corroborate Ms Hirschfeld having resided at the home, including:
a.proof of electoral enrolment;
b.Ms Hirschfeld's address history as recorded by Medicare;
c.bank statements showing card transactions and/or ATM or counter withdrawals;
d.copies of income tax notices of assessment or confirmation of non-lodger
advice issued by the Australian Taxation Office; and
e.any other bills or official correspondence addressed to Ms Hirschfeld[51].
[51] Document 4.
33.On 10 April 2023, Mr Fromm replied to the Secretary's letter, declining to provide any of these documents[52]. In his letter, Mr Fromm stated:
[52] Document 5.
a.Ms Hirschfeld was supported by him as her partner, did not work, had no income, and did not complete tax returns;
b.'Regarding Leisa's Electoral Enrolment it shows her address as Mission Station Road, Hatherleigh the same for Medicare PO Box 1352, Millicent SA 5280';
c.all bills relating to the former principal home were in Mrs Mills' name rather than Ms Hirschfeld's, and all bills that Mr Fromm and Ms Hirschfeld received as a couple were in Mr Fromm's name;
d.Ms Hirschfeld 'would support her Grandmother Gertude predominantly living with her a} Victor Harbor to give [Mrs Mills] emotional, logistic, visitation support' (emphasis added).
Relevant law
34.The relevant law is contained in the:
• Aged Care Act 1997 (Cth);
• Subsidy Principles 2014 (the Subsidy Principles);
• Aged Care (Subsidy, Fees and Payments) Determination 2014 (the SFP Determination);
• Social Security Act 1991 (the SS Act).
The Tribunal's jurisdiction
35.The Tribunal is limited to reviewing the residential care asset assessment decision which was reviewed by the Review Officer.
36.The Review Officer on 7 April 2022 reviewed a residential care asset assessment decision pursuant to s 44-26C(1) of the Aged Care Act.[53]
[53] Ibid, T2, p 23
Residential Care Assets Assessment
37.The maximum costs payable for residential aged care are regulated by the Australian Government. Subsidies are available for the costs associated with residential aged care which are, among other factors, determined by an assessment of an individual's income and assets.
38.The amount of the means tested care fee that a resident is required to pay is dependent on an income and asset assessment which is conducted by the Agency: sections 44-21, 44-22 and 52C(3) of the Aged Care Act.
Calculation of the residential aged care subsidy
39.Mrs Mills' home was her “principal home”.
Section 44-26A of the Aged Care Act
40.As set out above at [43], subsection 44-26A of the Aged Care Act has the effect that the value of a home is to be disregarded for the purposes of an RCAA if it is occupied by:
a.a partner or dependent child of the person;
b.a carer of the person who had occupied the home for the past 2 years and was eligible to receive an income support payment at the time; or
c.a close relation of the person who had occupied the home for the past 5 years and was eligible to receive an income support payment at the time.
41.In this case, we are concerned only with (b) or (c) above.
Was Ms Hirschfeld a carer of the Applicant?
The Aged Care Act and the SS Act do not define 'carer'. Ms Hirschfeld's statutory declaration made on 25 March 2021,[54] states that Ms Hirschfeld:
[54] Ibid, T10, pp 103-104.
a)was Mrs Mills' 'only family member who cared for her and 'spent much time living with her caring for her helping with her day to day living';[55] and
[55] Ibid, T10, p 103.
b)still visited Mrs Mills in residential aged care on a regular basis and picked up and washed her clothes regularly[56];
[56] Ibid, T10, p 104.
c)Ms Hirschfeld's letter dated 12 August 2021[57] in which she states 'I have spent much of my time living, caring and supporting Gertrude (Nanna) on a regular basis ... As I have spent most of my time living with her, caring for Nanna for the past 6 years the only residence I have is her home now to stay and visit her in residential aged care'; and
[57] Ibid, T8, p 89.
d)the Applicant's SFICs contend that Ms Hirschfeld 'cared for [Mrs Mills] in her own home as she was elderly, frail and lost her husband of 70 years' (Applicant's SFICs/1) and that Ms Hirschfeld 'predominantly lived at Mrs Mills Victor Harbor resident to give emotional, logistic, visitation support to her 90-year-old grandmother (Applicant's SFICs/2).
43.The Tribunal accepts that Ms Hirschfeld provided care in the lay sense of that term, for Mrs. Mills. She stayed with Mrs Mills from time to time and assisted her generally. The Tribunal is not however satisfied on the evidence, that Ms Hirschfeld was Mrs Mills' “carer” for the purposes of the Aged Care Act in the 2 years prior to Mrs Mills entering residential aged care.[58]
[58] Ibid, T6, p 55 at question 5.
Was Ms Hirschfeld a close relation of the Applicant?
44.Ms Hirschfeld was a close relation of Mrs Mills. This is not in dispute.
Did Ms Hirschfeld occupy the former principal residence in a 5 year period before 3 August 2021?
45.In order for 44-26A(6) of the Aged Care Act to be satisfied Ms Hirschfeld must have occupied the former principal home for the 5 year period before Mrs Mills entered residential aged care on 3 August 2021 (that is, from 2 August 2016 to 2 August 2021 - the relevant period).
The Tribunal is not satisfied on the evidence, that a finding is open that Ms Hirschfeld occupied the home in the 5 years prior to Mrs Mills entering residential aged care.
Ms Hirschfeld has not supplied any evidence of her advising any institution or government body such as the Australian Electoral Commission, Medicare, the Australian Taxation Office, any state or local government body, utility providers, banks, local library, that her address was the home, prior to Ms Hirschfeld updating her home address for Centrelink purposes on 11 March 2022.
Ms Hirschfeld has not supplied any evidence of any bank statements showing withdrawals in the Victor Harbor area, that would be consistent with her living in Victor Harbor.
49.Ms Hirschfeld has not supplied any evidence from another person confirming her residence in Victor Harbor.
50.The evidence is that Ms Hirschfeld lived mainly in Millicent, but visited Mrs Mills at the home from time to time.
51.The Tribunal therefore finds that Mr Hirschfeld did not occupy the home for the relevant period.
Was Ms Hirschfeld eligible to receive an income support payment?
52.If the Tribunal was satisfied that Ms Hirschfeld had occupied the home during the relevant period, (which it is not), it would also be necessary that Ms Hirschfeld was contemporaneously eligible to receive an income support payment.[59]
[59] Aged Care Act 1997 (Cth) s44-26A(6)(c)(ii).
53.Ms Hirschfeld did not receive an income support payment during the relevant period.[60]
[60] Document 3, T3 p 89.
54.The Tribunal has considered whether, notwithstanding the fact that Ms. Hirschfeld did not receive an income support payment, she would at the relevant time, have been qualified to do so.
55.The relevant provision of the SS Act provides:
198 Qualification-disabled adult or disabled adult and dependent child
(1) A person is qualified for a carer payment if the requirements of this section are
met.
Note: Sections 198AA, 198AB and 198AC allow the person to qualify in
certain short-term circumstances where the requirements would not be
met.
Constant care for disabled adult or disabled adult and a dependent child
(2) The person must personally provide constant care for:
(a) either:
(i) if the person is the only person providing the constant care-a disabled
adult (the care receiver) who has been assessed and rated under the
Adult Disability Assessment Tool and given a score under that
assessment tool of at least 25, being a score calculated on the basis
of a total professional questionnaire score of at least 1 O; or
(ii) if not-a disabled adult (the care receiver) who has been assessed and
rated under the Adult Disability Assessment Tool and given a score
under that assessment tool of at least 80, being a score calculated on
the basis of a total professional questionnaire score of at least 32; or
(d) a disabled adult and a dependent child of the adult (the care receivers),
where:
(i) the disabled adult has been assessed and rated under the Adult
Disability Assessment Tool and given a score under that assessment
tool of at least 20, being a score calculated on the basis of a total
professional questionnaire score of at least 8; and
(ii) the child is aged under 16; and
(iii) if the child is aged 6 or more-carer allowance is payable for the child;
and
(iv) section 1970 does not apply in respect of the care receivers.
Note: In a paragraph (d) case, subsection (9) deems certain supervision to
constitute care.
Care in home
(3) The care must be provided in a private residence that is the home of the care
receiver or care receivers.
Carer in Australia
(4) The person must be an Australian resident, unless:
(a) the person is in a country in which carer payment may be granted to the
person under a scheduled international social security agreement; and
(b) the scheduled international social security agreement entered into force on
or before 24 December 1992.
Income and assets tests etc.
(5) The care receiver or care receivers must:
(b) subject to subsection (6), be Australian residents; and
Note: For Australian resident see section 7.
(c) subject to subsection (7), pass the income test under section 198A; and
(d) subject to subsection (7), either:
(i) pass the assets test under section 198D; or
(ii) be the subject of a decision in force under subsection 198N(2), (3) or (4)
that subparagraph (i) does not disqualify the person providing the
constant care from carer payment.
Alternative to Australian residence test for higher ADA T score adults
(6) Paragraph (5)(b) does not apply if:
(a) the care receiver is the higher ADA T score adult mentioned in
paragraph (2)(a); and
(b) the adult is receiving a social security pension; and
(c) carer payment may be granted to another person for the adult under a
scheduled international social security agreement.
Alternative to income/assets test for higher ADA T score adults
(7) Paragraphs (5)(c) and (d) do not apply if the care receiver is the higher ADA T
score adult mentioned in paragraph (2)(a) and the adult:
(a) is receiving a social security pension or benefit, a service pension, income
support supplement or a veteran payment; or
(b) would be receiving a social security or service pension or income support
supplement if he or she had been an Australian resident for a Jong enough
period.
Deemed personal care of disabled adult and dependent child
(9) For the purposes of paragraph (2)(d) and other references in this Part that relate
to that paragraph, if a disabled adult is providing care of a dependent child of the
adult at a particular time and another person is supervising the provision of that
care at that time, the other person is taken personally to provide care of the adult
and child at that time.”
56.'Constant care' is not defined in the SS Act, but the Social Security Guide sets out
government policy in relation to what constitutes 'constant care' for the purposes of
subsection 198(2) of the SS Act at instruction [1.1.C.310][61]:[61] Department of Social Services, Social Security Guide (Web Publication, 20 September 2023) 1.1.C310 <1.1.C.310 Constant care (CP) | Social Security Guide (dss.gov.au)>.
“A carer is said to provide constant care if they personally provide care on a daily basis
for a 'significant period' during each day. The care may be active, supervisory or
monitoring. To provide care on a daily basis for a significant period, a carer should
reasonably be expected to provide at least the equivalent of a normal working day in
personal care, as the policy intent of providing GP is to recognise that the carer is not
able to undertake substantial employment because of their caring responsibilities. This
includes circumstances where the carer or care receiver are absent from the care
situation for part of the day, but the intensity of the care required and provided during
the remainder of any 24 hour period is such that it roughly equates to a normal working
day.”
57.In Milne v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[62] McCabe SM said:
[62] [2008] AATA 689, p 3 [7].
“Section 198(2) of the Act says a person may be entitled to receive a carer's payment if he or she provides "constant care" to a disabled person. The expression "constant care" is not defined in the Act. These words should be given their ordinary English meaning. "Care" may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the "care" or be "constant" means that the person must be acting as a carer on a more-or-less fulltime basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer's payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.”
58.The Tribunal finds that there is insufficient evidence to determine that Ms Hirschfeld was, or would have been, eligible for any income support payment, in particular a Carer Payment, during the relevant period.
59.It follows that, even if the Tribunal were to be satisfied that Ms Hirschfeld had occupied the home for the relevant period (which it is not), subsection 44-268(6) of the Aged Care Act still could not be satisfied, to exclude the home as an asset.
Veteran’s Entitlement Issue
60.Mr Fromm also raised the issue during the hearing that as Mrs Mills’ was in receipt of a pension from the Department of Veteran’s Affairs during her lifetime, she was not subject to the same entitlement requirements under the Aged Care Act. This he argued, meant that the home could not be included in the relevant assessment.
61.At the conclusion of the hearing the Tribunal invited the Respondent to make such submissions as it wished on this topic, in writing. These submissions were received by the Tribunal on 18 September 2023.
62.Having regard to those submissions, the Tribunal is satisfied that Mr Fromm’s submissions on this point have no bearing upon the matters to be determined.
63.The Tribunal finds that the home was properly included in the assessment on the relevant date.
Decision
64.The decision under review is affirmed.
………………………[Sgnd]………………………
Legal Associate
Dated: 5 October 2023
Date of hearing: 30 August 2023
Applicant: Mr Rodger Fromm Advocate for the Respondent: Mr Riley Calaby,
Services Australia
Annexure A – List of Tendered Documents
Document No. Lodged by Description 1 Respondent Statement of Facts, Issues and Contentions [Provided 10 August 2023] 2 Respondent T-Documents [Provided 30 June 2022] 3 Applicant Statement of Facts, Issues and Contentions [Provided 2 May 2023] 4 Respondent Further Submissions [Provided 18 September 2023] 5 Respondent Letter to Applicant re request for further evidence [Provided 6 September 2023] 6 Applicant Letter to Respondent re response to Respondent’s request for submissions on 6 April 2023 [Provided 12 April 2023]
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