Thelma Brown and Secretary, Department of Social Services

[2015] AATA 409

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2015/1199

General Administrative  Division          )

Re:            Thelma Brown

Applicant

And:          Secretary, Department                    of Social Services

Respondent

CORRIGENDUM

TRIBUNAL:   Miss E A Shanahan

DATE:           12 June 2015

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 as follows:

1.In paragraphs 5, 16, 29 and 30;

delete Trevor Brown and replace with Raymond Brown.

2.Wherever it occurs delete Mrs Eckhart and replace with Ms Eckhart.

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

[2015] AATA 409

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2015/1199
Re	Thelma Brown
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal	Miss E A Shanahan, Member
Date	11 June 2015
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes its decision that the value of the Applicant’s home should be disregarded in the calculation of the residential care subsidy up to and including 4 May 2015; but after such date it is an assessable asset.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – residential aged care – calculation of the residential care subsidy payable to an approved provider – assessment of assets – whether or not value of care recipients principle place of residence/home can be disregarded – provision of care by resident fund – period of some residence in question – on the balance of probabilities s 44-26A(6)(b) satisfied until 4 May 2015 – decision set aside and substituted.

Legislation

Aged Care Act 1997

The Subsidies Principle 2014

Aged Care (Subsidy, Fees and Payments) Determination 2014

Social Security Act 1991

REASONS FOR DECISION

Miss E A Shanahan, Member

1. Mrs Thelma Brown entered respite care on a temporary basis at Eureka Village Hostel aged care facility in Ballarat on 13 January 2015.  While she was resident in this temporary capacity, a permanent care position became vacant and was offered to Mrs Brown.  Mrs Brown’s children Lynda Eckhart and Trevor Brown, who jointly hold Enduring Powers of Attorney on her behalf, considered and accepted this offer. 

2. Trevor Brown completed a Request for a Combined Assets and Income Assessment for Permanent Residential Aged Care form lodged on 20 January 2015. 

3. The assessment by Centrelink included amongst the assets, Mrs Brown’s principal home with the value of $220,000 assigned by the local government authority. As Mrs Brown’s total assets, despite application of a cap on the value of her house, exceeded that allowed she did not qualify for any government-funded financial support in a residential aged care facility. Mrs Brown, through her nominees, sought review of the decision and in particular whether her house in Ballarat should be included as an asset for the purposes of the asset assessment. On 19 February 2015 an authorised review officer (ARO) affirmed the decision on the basis that Mrs Brown did not satisfy the requirements for exclusion of her residence as an asset in accordance with s 44-26A(6)(b) of the Aged Care Act 1997 (the Act). According to the ARO, there was insufficiently convincing evidence that her son Robert, who had been in receipt of a carer’s allowance for her care since August 2013, had occupied the home for the past two years. 

4. Mrs Brown lodged an application for review of the ARO’s decision by the Administrative Appeals Tribunal on 13 March 2015. 

5. At the hearing Mrs Brown was represented by her daughter Lynda Eckhart and her son Trevor Brown. Mr James Henderson, an advocate from the Department of Human Services, appeared for the Secretary, Department of Social Services. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents and ST-documents), which are marked Exhibit R1.

6. Mr Henderson also provided copies of email communications between Mr Henderson and an officer of the Aged Care Division of the Department of Human Services advising that the earlier advice given to Mrs Brown’s nominees that the value of her home was exempt from assessment was incorrect and was an automatically generated letter devoid of human input. 

7. Mrs Eckhart provided a bundle of documents including correspondence and accounts rendered by the Eureka Village Hostel and treating doctors, and documentary evidence of Mrs Brown’s ongoing financial responsibilities such as council rates, provision of telephone, gas and electricity, her private health insurance costs and medication costs. 

   background to the application

8. Mrs Thelma Brown is aged 87.  She has been receiving the Age Pension since 1997 and vested Power of Attorney in her children Lynda and Trevor in August 2005.  She had been living in her own home with the assistance of her son Robert, who became her official carer, in that he was granted a carer allowance for his mother, on 3 September 2013.  Robert receives disability support pension (DSP) for emphysema.  He qualified for the DSP on 11 April 2007.  Robert had received carer payment for his wife from 28 March until her death on 16 September 2006.  Robert had also received carer payment from 20 August 2012 until an unknown date for a Ms Maryanne Yuritta.  Mr Robert Brown’s carer allowance for his mother Thelma Brown ceased on 1 March 2015 when she was permanently moved to an institution (T19, page 85).

It would appear that Mrs Brown was assessed on several occasions by a geriatrician, Dr Phillip Street, in relation to her cognitive status.  The only report provided to the Tribunal is  dated 18 August 2014, at which time Dr Street made a diagnosis of early stage vascular dementia with some worsening of her memory and thinking since her last visit.  He encouraged her to keep pursuing her usual activities but to think about the need to move into care in the future.  He regarded her family support at the time as being excellent.  Dr Street advised that help be provided by the Alzheimer’s Association although he did not believe she had Alzheimer’s disease.  He rejected the need for any medication as Alzheimer’s disease was not considered a possible diagnosis and advised against making any changes to her Power of Attorney arrangements. (T9, page 22)

Mrs Brown’s treating general practitioner, Dr L Gaye Souter, interpreted Dr Street’s recommendations as indicating that Mrs Brown no longer had the cognitive capacity to change her existing power of attorney arrangements in an informed manner. (T9, page 21 addressed TO WHOM IT MAY CONCERN: and dated 28 August 2014).

11. Shortly before 13 January 2015, Mrs Brown was found wandering the streets of Ballarat seeking help.  The police returned her to her family home.  Her carer Robert was greatly distressed by these events and felt he was not performing his role as a carer adequately. 

1. Mrs Brown’s admission to the Eureka Village Hostel was arranged.  The Eureka Village Hostel is run by the Ballarat Health Services on behalf of the Department of Health Victoria.  On 20 January 2015 a permanent placement at the hostel was offered to Mrs Brown.  Mrs Eckhart and Trevor Brown made appropriate enquiries as to costs and Mr Brown completed the Centrelink, Permanent Resident Aged Care Request for a Combined Assets and Income Assessment for Permanent Residential Aged Care form.  The family also obtained quotations from other facilities and examined the options for payment at the Eureka Village Hostel.  They also considered taking Mrs Brown from the hostel and returning her to her place of residence while further enquiries were made.  This last option was rejected when they were informed by the general practitioner and the homecare case manager that such an action would be reported, presumably to the Guardianship and Administration Section of the Victorian Civil and Administrative Tribunal (VCAT), as Mrs Brown was not considered suitable for home care by the general practitioner and case manager.

2. Initially the family had been told that the value of Mrs Brown’s home would not be included in the asset assessment.  They were advised of this by a computer generated letter from Centrelink.  This was later corrected.  As a result of the assessment, Mrs Brown is a non-supported resident and required to pay $60.10 in a daily accommodation payment, plus a basic daily care fee of $47.49, plus a means-tested care fee of $3.82.  She is also required to pay $50 per month into a trust fund to provide payment for incidentals such as hairdressing.  In addition, some $15.00 per month is billed by her general practitioner for what is described as prescription management administration.  Mrs Brown receives the aged pension in the sum of $770.99 per fortnight and a defined benefit superannuation income payment of $321.30 per fortnight. 

3. Mrs Brown continues to be responsible for the upkeep of her home and the payment of all costs and utilities such as council rates, property insurance, gas and electricity usage, telephone rental and some small gardening costs.  For the 30 day period of accommodation and care at the Eureka Village Hostel from 17 March to 17 April 2015 the total cost was $3,346.38.  She is therefore, in addition to using her entire aged pension and her small superannuation payment confronted with an extra $1,067.57 for the month, plus an estimated upkeep of her home of $461 per month. 

4. At the time of entering the hostel Mrs Brown’s bank account revealed total savings of $17,688.  This has now diminished, after two months of accommodation, to $11,516 approximately.  Her family have estimated that at the current rate she will have exhausted all her savings within five months.

5. Mrs Eckhart and Trevor Brown have made enquiries regarding the sale of their mother’s home or in the alternative it’s potential as a rental property.  They have obtained quotations from local real estate agents and the value of the home has been estimated on the current market to be $250,000 to $255,000. If an additional bathroom or ensuite was installed, the property painted and the floor coverings renewed, the value would rise to $285,000 to $290,000.  The current rental value to be expected is $220 per week rising to $270 per week should the mooted renovation works be performed.

6. The Aged Care Act 1997 (the Act) provides that the value of the principal home of a care recipient may be excluded from the asset assessment if the home had been occupied, in addition to the care recipient, by a carer of the person; provided the carer had occupied the home for the past two years and was eligible to receive an income support payment during that time. 

7. Robert Brown has been receiving DSP since mid-2007.  His driver’s licence has been altered on various occasions to reflect changes of address. Certainly in the second half of 2011, and again in 2012 until 2 July of that year, he was living with his mother at the home address.  He then notified VicRoads of change of address to the home address on 27 August 2013. 

8. Robert Brown has provided a statutory declaration attesting to his return to residency in his mother’s house on 27 February 2013 and this has been confirmed by a statutory declaration completed by Maryanne Yuritta for whom Mr Brown was a carer and received a carer’s allowance.  Robert Brown has declared that he was caring for his mother throughout 2013 and 2014 but initially did not realise he could receive payment for the care of two persons and had not declared his status as his mother’s carer. 

9. Mrs Eckhart has also provided a statutory declaration dated 21 April 2015, wherein she states that her brother Robert resided at the family home for large parts of 2011 and for the first half of 2012.  However, as her mother’s needs were increasing it was her recollection that he returned to live with his mother from early 2013.  Robert took his mother shopping, to medical appointments and did the cooking and washing. As his mother’s condition deteriorated outside help was arranged for house cleaning and showering Mrs Brown. (ST7).

10. Dr L Gaye Souter, who is Mrs Thelma Brown’s general practitioner, has also provided a letter stating that Robert Brown increasingly supported his mother from 2010 onwards and provided regular live-in support from 2012. 

11. The manager of Community Care and Access for the City of Ballarat has provided a report indicating that his clinical case notes for Thelma Brown record that on 7 February 2011 Robert Brown was the primary carer for his mother Thelma. The occupational therapist reported on 22 February 2012 that Robert was living with his mother and that on 12 June 2012 he had moved out of the family home.  These records also show that in a telephone conversation between Mr Robert Brown and the Community Care service on 8 March 2013 Robert was said to again be living at his mother’s house. 

12. It is noted that the record of addresses kept by Centrelink do not always tally with those kept by the driver and vehicle services of VicRoads.  Mr Robert Brown has stated in his statutory declaration that he did not get around to changing his address to that of his mother’s home for some months as he was caring for both Ms Yuritta and his mother at the same time.

13. On 5 May 2015 Robert Brown advised Centrelink that he had shifted out of his mother’s home and had leased a property in Ballarat.  He had taken this action in the belief that his mother’s home was to be sold.

    RELEVANT LEGISLATION

14. Section 44-2 of the Aged Care Act 1997 addresses the amount of residential care subsidy payable to an approved provider for residential care services for each care recipient in their charge.  The formula is provided in the Act.  The estimations of the subsidy require the care recipient’s assets to be calculated in accordance with s 44-26A. 

15. Section 44-26A(6) of the Act provides:

    (6)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:

    (a)the *partner or a *dependent child of the person; or

    (b)a carer of the person who:

    (i      had occupied the home for the past 2 years; and

    (ii)     was eligible to receive an *income support payment at the time; or

    (c)a *close relation of the person who:

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

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

16. Section 44-26B of the Act and s 47 of the Aged Care (Subsidy, Fees and Payments) Determination 2014 provide that the maximum value of the care recipient’s principle residence (home) is currently $157,051.20.

    submissions

17. Mrs Eckhart and Trevor Brown provided the data regarding her asset assessment and income referred to above; as well as the actions they had taken and enquiries they had made in relation to Mrs Brown being committed to continuing or permanent residential aged care at the  Eureka Village Hostel.

18. Mrs Eckhart and Trevor Brown drew the Tribunal’s attention to the disparity of housing values and residential care facility charges in country and remote Victoria compared to suburban Melbourne.  In particular, they stressed that the value of their mother’s family home, had it been situated in a Melbourne suburb, would have been of at least half a million dollars value and  she could have quite readily paid for her estimated long term pay in advance accommodation price of $325,000 (the Refundable Accommodation Deposit (RAD)).  They had also documented Mrs Brown’s extra costs in terms of payment of utilities, rates and other payments on her home. 

19. Mrs Eckhart and Trevor Brown accepted that the house would have to be sold or at least placed on the rental market but these actions required time which in turn would result in a further depletion of Mrs Brown’s savings.   They also contended that they had lost time by being wrongly informed by the Department of Social Services that Mrs T Brown’s home was not to be considered as an asset for the purposes of determining her residential care subsidy reduction.  They considered they had been placed in an unenviable position and under some duress when they raised the possibility of taking Mrs Brown out of care and back to her home to give them more time to make preparations and were told that such an action would result in an application by the facility manager to VCAT. 

20. Mrs Eckhart indicated that they had not been expecting their brother Robert Brown, to vacate the property on 4 May, a date on which he signed a lease for another property and for which he is receiving rent assistance.  It would appear that Robert Brown is still spending some of his time in the family home despite having made other arrangements for his accommodation.

    RESPONDENT’S SUBMISSIONS

21. Mr Henderson relied on the respondent’s Statement of Facts and Contentions wherein the effect of the Act was explained in detail. He submitted that there were two options open to the Tribunal. The first option was that the value of Mrs Brown’s home could not be disregarded under s 44-26A(6)(b) of the Act as her carer son Robert Brown had not occupied the home continuously for the past two years before she entered into permanent residential care on 1 March 2015. This submission was based on a lack of objective verifiable records to support Robert Brown’s statutory declaration that he had resided at the premises from 27 February 2013 until 4 May 2015.

22. The second option open to the Tribunal was to find there was sufficient evidence of Robert Brown’s occupation of the family home for the purpose of caring for his mother between 27 February 2013 and the time of her acceptance into permanent care on 1 March 2015 and to exclude the value of the family home from her asset assessment between 1 March 2015 and 4 May 2015.

    TRIBUNAL’S DELIBERATIONS

23. The only issue that falls within the Tribunal’s jurisdiction in this application has been correctly identified as being whether the value of Mrs Brown’s home may be disregarded in the calculation of the amount of residential care subsidy payable to the approved provider of her residential care service namely, the Eureka Village Hostel.  There are other aspects of Mrs Brown’s residential care provision which are somewhat disturbing but are not within the purview of this Tribunal.

24. The relevant legislation relating to this issue is contained in s 44-26A(6)(b) of the Act which states that the value of the home may be disregarded in the calculation of the care receiver’s assets if at the time the home was occupied by:

    (b)a carer of the person who:

    (i)had occupied the home for the past 2 years; and

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

    There is no challenge to the role of Robert Brown as Mrs Brown’s carer or that he was at all times eligible to receive an income support payment.  Robert Brown has been on a DSP since mid-2007 for emphysema. 

25. Robert Brown’s Centrelink records, record that he has resided at his mother’s home since 23 August 2013 and that he qualified for payment of a carer allowance in respect to his mother from 3 September 2013.  Robert Brown’s VicRoads records relating to his residential address indicate that he resided at the family home for part of 2011 and 2012, and that from 27 August 2013 his registered address was again the family home.

26. Mr Brown’s periods of occupation of his mother’s home for seven months in 2011 and seven months in 2012 are not recorded in his VicRoads registration advice.  These records are the only independent or third party records that delineate the period of time Robert Brown spent at the family home.

27. The Tribunal has been presented with statutory declarations from Robert Brown, Ms Maryanne Yuretta and Mrs Eckhart.  Additionally, the Tribunal has received a letter from the manager of Community Care and Access for the City of Ballarat, producing clinical case notes relating to Mrs Thelma Brown which indicate that Robert Brown was the primary carer of his mother in February 2011, was reported to be living at his mother’s home in February 2012 and was recorded as having moved out of his mother’s home on 12 June 2012.  A conversation with Robert Brown on 8 March 2013 indicated that he was now living again at the family home.

1. Mrs Eckhart in her written submission stated that her brother Robert does not grasp financial matters.  Apparently, Robert Brown had not realised that he could in fact claim carer’s payment or allowances for two persons in the years 2013 and 2014 when he was caring for both his mother and two days a week for Ms Yuretta.  He received a carer’s allowance for Ms Yuretta only. 

2. Ms Yuretta’s and Robert Brown’s statutory declarations state that he vacated Ms Yuretta’s home at Mount Edgerton on 27 February 2013.  Robert Brown’s statutory declaration also stated that he moved to his mother’s home on 27 February 2013 and that his relocation was a hectic time, resulting in his delaying notification of his change of address. 

3. In her statutory declaration Mrs Eckhart declared her brother Robert had been his mother’s primary carer for much of 2010, 2011 and 2012 and cared for both Mrs Thelma Brown and Ms Maryanne Yuretta in late 2012; but because of Thelma Brown’s increasing need for care, moved back to her home from early 2013. 

4. Dr L Gaye Souter confirmed Robert Brown was increasingly supporting Mrs Brown from 2010 onwards and from late 2012 provided what she has termed more regular live-in support. 

5. The Tribunal finds that the weight of the evidence supports the contention that Robert Brown had resided at his mother’s home or the family home for the required period of two years prior to Mrs Brown being admitted permanently to the aged care facility of Eureka Village Hostel on 1 March 2015. Therefore, the value of Thelma Brown’s home, albeit capped at $155,823.00, is to be disregarded in terms of calculating the assets of Mrs Brown between 1 March 2015 and 4 May 2015, in accordance with s 44-26A(6)(b) of the Act.

6. The Tribunal notes that reviews of the asset status and income of aged residential care recipients is assessed quarterly with the next assessment being in July 2015.  However, it would be appropriate if Mrs Brown’s asset and income statements are reassessed on receipt of this decision. 

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Administrative Assistant

Dated 11 June 2015

Date of hearing	18 May 2015
Applicant	In person
Advocate for the Respondent	Mr James Henderson, Department of Human Services