Thompson and Secretary, Department of Health (Social services)

[2019] AATA 3429

Thompson and Secretary, Department of Health (Social services) [2019] AATA 3429 (13 September 2019)

Division:GENERAL DIVISION

File Number:           2018/6922

Re:Gwendoline Thompson

APPLICANT

AndSecretary, Department of Health

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 September 2019

Place:Sydney

The decision under review is affirmed.

...........................[SGD].............................................

Dr L Bygrave, Member

CATCHWORDS

AGED CARE – decision to assess rental income from former principal home for aged care means tested fee – whether applicant entered residential care prior to 1 January 2016 – whether “pre-entry leave” and “making arrangements to enter an aged care service” are separate requirements – where “making arrangements to enter an aged care service” is plain language translation of pre-entry leave and not separate requirement – where applicant entered aged care after 1 January 2016 – decision affirmed

LEGISLATION

Aged Care Act 1997 (Cth) ss 3-3A, 42-3, 52A-1

SECONDARY MATERIALS

Subsidy Principles 2014, ss 7B, 46A

REASONS FOR DECISION

Dr L Bygrave, Member

13 September 2019

INTRODUCTION

1. The applicant, Mrs Gwendoline Thompson, is 93 years old. On 24 November 2015, Mrs Thompson moved from her home in Port Macquarie (her former principal home) into care.

2. On 10 August 2018, an authorised review officer of the Department of Human Services (the Department) made a decision to assess the rental income from Mrs Thompson’s former principal home for her aged care means tested fee with effect from 1 January 2016.

3. Mrs Thompson’s daughter and representative, Mrs Jill Gorrie, applied to the General Division of the Tribunal for review on 6 September 2018.

4. The matter was heard in Sydney on 28 August 2019. Mrs Gorrie attended the hearing and provided submissions to the Tribunal by conference telephone.

   RELEVANT LEGISLATION

5. Pursuant to section 3-3A of the Aged Care Act 1997 (Cth) (the Aged Care Act), a care recipient may be required to pay for, or contribute to, their care and accommodation. Section 52A-1 of the Aged Care Act sets out that fees can include an accommodation payment or an accommodation contribution, which may be paid by daily payments, refundable deposit or a combination of refundable deposit and daily payments.

6. Section 41-3 of the Aged Care Act provides the following meaning of “residential care”:

   1Residential care is personal care or nursing care, or both personal care and nursing care, that:

   (a)is provided to a person in a residential facility in which the person is also provided with accommodation that includes:

   (i)     appropriate staffing to meet the nursing and personal care needs of the person; and

   (ii)    meals and cleaning services; and

   (iii)    furnishings, furniture and equipment for the provision of that care and accommodation; and

   (b)meets any other requirements specified in the Subsidy Principles.

   2However, residential care does not include any of the following:

   (a)care provided to a person in the person’s private home;

   (b)care provided in a hospital or in a psychiatric facility;

   (c)care provided in a facility that primarily provides care to people who are not frail and aged;

   (d)care that is specified in the Subsidy Principles not to be residential care. [emphasis added]

7. Section 7B of the Subsidy Principles 2014 (Subsidy Principles) sets out that “flexible care in the form of short-term restorative care is not residential care” [emphasis added].

8. Section 46A of the Subsidy Principles provides:

   Subdivision CA – Care subsidy reduction – amounts included in total assessable income

   46A Included amounts – rent receipts and the Social Security Act 1991

   …

   2This section only applies to care recipients who, on or after 1 January 2016:

   (a)first entered residential care; or

   (b)re-entered residential care having previously ceased residential care for a continuous period of more than 28 days (other than because the person was on leave). [emphasis added]

9. Division 42 of the Aged Care Act deals with eligibility for residential care subsidy: section 42-3 sets out how to work out periods of leave from residential care services and includes the following requirements at subsection 42-3(3):

   …

   3A care recipient may be on leave (the pre-entry leave) under section 42-2 on the days during the period starting on the later of:

   (a)the day on which he or she was notified that there was a vacancy in the residential care service in question; or

   (aa)the day on which he or she accepted a place in the residential care service; or

   (b)the day that is 7 days, or such other period as is specified in the Subsidy Principles, before the day on which the person *enters the residential care service;

   and ending at the end of the day before the day the person enters the residential care service. [emphasis in original]

10. Division 52F of the Aged Care Act sets out accommodation agreements. Section 52F-1 outlines the information to be given before a person enters into residential care:

    1Before a person enters a residential care service… the provider of the service must:

    (a)give the person:

    (i)     an accommodation agreement; and

    (ii)    such other information as is specified in the FeesandPaymentsPrinciples; and

    (b)agree with the person, in writing, about the maximum amount that would be payable if the person paid an accommodation payment for the service.

    Note: Whether or not a person pays an accommodation payment depends on their means tested amount, which may not be worked out before they enter the service.

    2A flexible care service is an eligible flexible care service if the service is permitted, under the Fees and Payments Principles, to charge accommodation payments. [emphasis in original]

11. Section 52F-2 requires that an approved provider enter into an accommodation agreement with a person within 28 days from the person entering the provider’s service.

    ISSUES

12. The issues for determination by the Tribunal are whether:

    ·Mrs Thompson entered into permanent residential aged care, pursuant to the Aged Care Act, prior to 1 January 2016; and

    ·the decision made on 10 August 2018 with effect from 1 January 2016 to assess the income from Mrs Thompson’s former principal home for her aged care means tested fee was correct.

    EVIDENCE

13. The evidence before the Tribunal supports the following undisputed facts.

14. Due to deteriorating health and personal circumstances, Mrs Thompson needed to enter permanent residential nursing care in November 2015.[1]

    [1] Exhibit A3.

15. On 24 November 2015, Mrs Thompson left her former principal home in Port Macquarie and entered into care at facility “A” in Nambucca Heads. While Mrs Thompson’s departure from her home was on a permanent basis, a “permanent bed” was not available and she could only access care staying in a “respite bed”.

16. On 23 December 2015, Mrs Thompson transferred from facility “A” in Nambucca Heads to a “respite bed” at facility “B” in Port Macquarie to be closer to Mrs Gorrie and family for the Christmas period.

17. On 5 January 2016, Mrs Thompson was offered and accepted a “permanent bed” at facility “C” in Port Macquarie. Mrs Thompson commenced permanent residential care at facility “C” and a decision was made regarding her daily care fees on 6 January 2016. A resident and accommodation agreement between Mrs Thompson and facility “C” was signed by Mrs Gorrie on 11 January 2016 and the Director of Care at “C” on 14 January 2016.[2]

    [2] Exhibit R3.

18. The Department sent notices to Mrs Thompson and to facility “C” on 4 February 2016, which set out the daily fees Mrs Thompson may be charged as a permanent resident.

19. Mrs Thompson’s former principal home was rented for $450.00 per week from 21 July 2016.

20. On 18 January 2018, Mrs Gorrie wrote to the Department stating Mrs Thompson “entered permanent aged care prior to 1 January 2016”.[3]

    [3] Exhibit T-T16, page 216.

21. Mrs Gorrie again wrote to the Department on 19 June 2018, setting out the following information:

    Gwendoline advised [“A”] and [“B”] in Port Macquarie in early November 2015 that she urgently required a permanent aged care bed. Appropriate paperwork for entry into aged care accommodation had previously been submitted. She was reliant on a bed becoming available as she needed 24 hour care. From 24 November to 22 December 2015 she was in emergency respite care at [“A”], Nambucca Heads. On 23 December 2015 she was transferred to [“B”], Port Macquarie where she was waiting for a permanent aged care bed. On 4 January 2016 she was offered a permanent aged care bed at [“C”]. She was transferred from [“B”] to [“C”] on 6 January 2016. Gwendoline had been in care since 24 November 2015 and had never returned home.[4]

    [4] Exhibit T-T17, page 220.

22. At the Tribunal hearing, Mrs Gorrie said that Mrs Thompson stayed in a “respite care” bed from 24 November 2015 until 6 January 2016, when Mrs Thompson commenced permanent residential care at facility “C” in Port Macquarie. Mrs Gorrie further accepted that Mrs Thompson did not meet the requirement of “pre-entry leave” set out in subsection 42-3(3) of the Aged Care Act.

23. However, Mrs Gorrie submitted that, for the period from 24 November 2015 to 6 January 2016, Mrs Thompson was “making arrangements to enter an aged care service” and so rental income from her former principal home should not be assessed for her aged care means tested fee. Mrs Gorrie relied on the Department webpage, which set out the following information:

    Changes to the residential aged care means test

    1 January 2016

    From 1 January 2016, changes apply to the assessment of rental income from your former principal home.

    …

    The new rule won’t affect you if you entered care before 1 January 2016. This includes if you:

    -    took social or hospital leave before 1 January 2016 and re-enter care after 1 January 2016, or

    -    started pre-entry leave, making arrangements to enter an aged care service or transfer from one service to another, before 1 January 2016 and enter care after 1 January 2016…[5]

    [5] Exhibit T-T1, page 9.

24. Mrs Gorrie told the Tribunal this information was also confirmed to her in a telephone conversation with a Centrelink officer on 8 February 2016.[6]

    [6] Exhibit T-T20, page 247.

    CONSIDERATION

25. There is no dispute that Mrs Thompson did not enter “residential care” as defined in the Aged Care Act and Subsidy Principles until at least 6 January 2016, the date she commenced permanent residential care at facility “C” in Port Macquarie. The parties also do not dispute that Mrs Thompson did not meet the requirements of “pre-entry leave” set out in paragraphs 42-3(3)(a), (aa) or (b) of the Aged Care Act, as each of these days are after 1 January 2016.

26. Mrs Gorrie’s submissions to the Tribunal rely solely on the information in the Department’s webpage set out at paragraph 23 above. In particular, Mrs Gorrie contended that the use of a comma after “started pre-entry leave” indicates that this is a separate requirement to “making arrangements to enter an aged care service”.

27. I disagree. While I accept the language of the statute is complex, I find the requirement to be “making arrangements to enter an aged care service” is an accurate “plain language” translation of the “pre-entry leave” conditions set out in subsection 42-3(3) of the Aged Care Act. I also find that the webpage sets out only two situations which are not affected by changes to the residential aged care means test: first, where a person took social or hospital leave before 1 January 2016 and re-entered care after 1 January 2016; or second, where a person started pre-entry leave, making arrangements to enter an aged care service or transfer from one service to another, before 1 January 2016 and enter care after 1 January 2016.

28. For these reasons, I am satisfied that Mrs Thompson did not enter permanent residential care until after 1 January 2016. This means the decision to assess rental income from her former principal home for her aged care means tested fee from 1 January 2016 is correct.

    DECISION

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 13 September 2019

Date(s) of hearing:	28 August 2019
Advocate for the Applicant:	J Gorrie
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services