The Estate of the late Gertrude Mills and Secretary, Department of Health and Aged Care (Social services)

The Administrative Appeals Tribunal considered the matter of the Estate of the late Gertrude Mills and the Secretary, Department of Health and Aged Care. The dispute concerned the exclusion of Ms Mills' former residence from the assessment of her assets for the purposes of aged care funding. The Secretary had determined that the residence should be included in the asset assessment, a decision the Estate sought to have reviewed.

The Tribunal was required to determine whether Ms Mills' former residence should be excluded from the asset assessment under the relevant provisions of the *Aged Care Act 1997* (Cth) and associated principles. Specifically, the Tribunal had to consider the meaning of "occupation" of the home and the definition of a "carer" in the context of determining eligibility for asset exclusion.

The Tribunal affirmed the Secretary's decision, finding that Ms Mills was not "occupying" her former residence at the time of the assessment in a manner that would warrant its exclusion. The Tribunal reasoned that the concept of occupation required a degree of physical presence and use of the home as a principal place of residence, which was not met in Ms Mills' circumstances. Furthermore, the Tribunal found that the individual who had been providing care to Ms Mills did not meet the definition of a "carer" as contemplated by the legislation for the purposes of asset exclusion.