Traill and Secretary, Department of Health (Social services)

Traill and Secretary, Department of Health (Social services) [2018] AATA 1355 (18 May 2018)
Division:GENERAL DIVISION
File Number: 2017/4972
Re:Patricia Traill
APPLICANT

AndSecretary, Department of Health
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:18 May 2018
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution it is determined that the value of the Applicant’s home should be disregarded in the calculation of the residential care subsidy.
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Deputy President J Sosso
CATCHWORDS
HEALTH – aged care – assessment of value of Applicant’s assets –carer– carer close friend and god daughter – whether premises occupied by carer for two years prior to the Applicant entering permanent aged care – decision under review set aside.
LEGISLATION
Aged Care Act 1997 (Cth)
Social Security Act 1991 (Cth)
CASES
Anderson and Secretary, Department of Health and Ageing [2013] AATA 436
Helsham and Repatriation Commission [1986] AATA 145
Hughes and Secretary, Department of Health and Ageing [2007] AATA 1558; 96 ALD 239
MacNamara and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 40
May and Secretary, Department of Health [2016] AATA 881
O’Carroll and Secretary, Department of Health and Ageing [2013] AATA 365
Schiavello and Secretary, Department of Health and Ageing [2012] AATA 538
SECONDARY MATERIALS
Guide to Social Security Law
Subsidy Principles 2014
REASONS FOR DECISION
Deputy President J Sosso
18 May 2018
INTRODUCTION
Background

This matter involves a determination by the Department of Human Services (the Department) to include the value of Mrs Patricia Traill’s (the Applicant) home as part of her assets for residential aged care purposes. The Applicant, at the date of the hearing, was 92 years of age, and had been residing at Gosling Street Caloundra for many years – Exhibit 1 T7 p. 48, T9 p. 99.
On 13 April 2016 the Applicant lodged an Aged Care Fees Income Assessment Form with the Department – Exhibit 1 T7 pp. 48 - 61. The form was completed on the Applicant’s behalf by her lifetime friend, god daughter and holder of her Enduring Power of Attorney (Exhibit 1 T6 p. 46), Ms Colleen Anne Boatwright – Exhibit 1 T7 p. 61. Ms Boatwright’s address was said to be Otranto Avenue, Caloundra.
Ms Boatwright was born in Papua New Guinea in 1949 and lived there until 1972 – Exhibit 1 T21 p. 168. Many of her friends and acquaintances also lived in Papua New Guinea prior to that nation gaining independence in 1975.
The Applicant appointed Ms Boatwright her attorney, pursuant to an Enduring Power of Attorney Form, which is dated 9 October 2009 – Exhibit 1 T4 pp. 30 – 42.
On 13 April 2016 an Authorising a person or organisation to enquire or act on your behalf Form was lodged with the Department. Ms Boatwright stated in the form that her permanent address was Otranto Avenue, Caloundra – Exhibit 1 T6 p. 46.
On 19 August 2016 a delegate of the Department made a determination to include the value of the Applicant’s former principal residence in the assessed value of her assets for residential aged care purposes – Exhibit 1 T14 p. 148.
On 27 November 2016, Mrs Boatwright requested a review of the decision by a Departmental Authorised Review Officer. In support of her request, Ms Boatwright supplied a number of documents. One of those documents was a letter she wrote dated 21 November 2016. Relevant extracts are set out below – Exhibit 1 T9 pp. 92 – 93:
“Patricia has recently been placed into OzCare Currimundi Qld. (September 2016)
Prior to entering care Patricia was cared for by myself Colleen Boatwright…
I receive an Age pension from Centrelink and have been providing care to Patricia for the last 10 years however the past 4 years have been on a live-in arrangement.
I should be regarded as a ‘Protected Person’, however this has been challenged, Centrelink has advised me that there is insufficient proof that I have been providing live-in care for the last 4 years to Patricia.
When I moved in with Patricia Traill, I did not change my address as my previous home was tenanted by my son. He would deliver my mail to me, at Patricia’s. Both homes are within a few minutes drive of each other. One of the reasons I did this was to keep our mail very separate. As Patricia’s Alzheimers progressed she would get very confused about the mail and I didn’t want to add my mail in with hers, contributing to unnecessary anxiety…
It was only when I had a Stroke that I was unable to care for Patricia and unfortunately had to put her into aged care on a full time basis.
The second issue is the fact that I gifted my home to my daughter and son in law in May 2016. I had not been living there for approximately 4 years and I could not afford to continue to maintain it.
The Unit had a reverse Mortgage of $59,710.98 and I also had a credit card amount owing of $11,000, which was from paying rates, insurance etc for the unit in my name. My daughter…and son in law… paid out the Mortgage and the credit bill in return for the transfer of the property..
I did not realise that I had to advise Centrelink in relation to my age pension as I was in ill health from the stroke and really did not have the capacity at that time to understand the consequences. I just didn’t think and am terribly sorry for all the confusion this has caused.”
Ms Boatwright also completed a Carer/Close Relative Questionnaire on 2 November 2016, in which she stated that she had been residing at Gosling Street for three years – Exhibit 1 T9 pp. 94 - 95.
The Department was also provided with a number of Statutory Declarations, including one deposed by Ms Boatwright, which is dated 15 November 2016 – Exhibit 1 T9 p. 96:
“I have provided care for Patricia Traill for over ten years. Around four years ago, I moved in to her home…to assist with the full time care she required. My son still lives at my prior address and, as this is only five minutes away, I’m able to regularly collect my mail. Patricia moved into a nursing home as a permanent resident in September this year. Up until that point, utilities were in Patricia’s name.”
The Tribunal notes that in the Carer/Close Relative Questionnaire Ms Boatwright estimated that she had been residing at Gosling Street for three years, yet in her Statutory Declaration she stated that it was around four years ago.
Ms Kathy O’Hearn
A next door neighbour of the Applicant, Ms Kathy O’Hearn, provided the following information in her Statutory Declaration dated 15 November 2016 – Exhibit 1 T9 p. 98:
“I live next door to Patricia Traill and can confirm Colleen Boatwright has provided care for Patricia for many years. Whilst she had always ‘come and gone’, I can confirm Colleen permanently moved into 5 Gosling Street when Patricia required around the clock care, this was well over three years ago.”
The reviewable decision
The Authorised Review Officer determined to uphold the original decision – Exhibit 1 T2 pp. 6 – 8. The reasons provided for this decision are set out below - pp. 7 – 8:
“The value of your financial investments and other assets is not in dispute. The scope of this review is to determine whether the decision to include the value of your former principle [sic] residence in the assessed value of your assets for Permanent Residential Care purposes.
You have provided numerous forms and supporting evidence to the department when you requested an assessment of your income and assets for Permanent Residential care purposes. I have given substantial weight to the information that was provided in the forms and supporting evidence provided to the department in April 2016 and in the preceding period. The information that you and your nominee provided in April 2016 is consistent with previously declared information that had been lodged with the department.
I note that you or your nominee have provided evidence to support your claim that Ms Boatwright had been residing with you for the past four years. This information that has been provided with a specific view to having your asset value reassessed, and there are substantial anomalies in this more recent information compared with the substantial amount of information that had been provided by you and your nominee.
Evidence that has been prepared and submitted subsequent to a particular assessment and after a relevant date generally does not carry the same weight as more contemporaneous reports. My decision has been based on the declarations contained in multiple documents and supporting evidence that had been provided by you and your nominee over an extended period of time from October 2013 to including April 2016 inclusive.
The evidence provided indicates that Ms Boatwright is a friend and God-daughter to you, and that she has been your carer for a period of time. Ms Boatwright does not meet the definition of ‘close relative’ as is required for your home to be exempt from the assets test for Permanent Residential Care purposes.
On balance of the evidence before me, including that submitted by Ms Boatwright, I do not accept that Ms Boatwright had resided with you at 5 Gosling Street, Caloundra as your carer for the two years prior to 2 September 2016 when you entered Permanent Residential Care.
I find that there are no grounds for treating your former principle [sic] residence of 5 Gosling Street, Caloundra as an exempt asset. Therefore, I find that the assessment of your assets value was correct.”
Request for review
On 7 August 2017, Mr Ben Nolan, Managing Director of nmcounsulting group, on behalf of the Applicant, sought a review of this decision – Exhibit 1 T11 p. 103 – 107.
Mr Nolan stated that the following issues were not in dispute – Exhibit 1 T11 p. 103:
(a)the value of the Applicant’s home;
(b)the fact that Ms Boatwright was not a partner, dependent child, family member or close relative of the Applicant; and
(c)that Ms Boatwright was the Applicant’s carer and eligible to receive an income support payment in respect of the care provided that the relevant times.
Mr Nolan made, inter alia, the following submissions in support of the review – Exhibit 1 T11 p. 104:
“Mrs Traill has no family and Ms Boatwright has effectively been caring for Mrs Traill in varying degrees since her husband died forty years ago. From that time, and in addition to caring for Mrs Traill, Ms Boatwright would put on birthday parties for her and insist she celebrated events such as Christmas with Ms Boatwright’s family. Ms Boatwright began residing at the property on a more permanent basis after she legally separated from her husband in August 2003…In October 2009, Mrs Traill gave Ms Boatwright enduring power of attorney.
Mrs Traill’s condition deteriorated over time and she ultimately required a higher level of care…Mrs Traill had required full-time, live-in care for at least the previous five years…Put simply, it would not have been possible for Ms Boatwright to provide the full-time care required unless she was actually living in the property.
Mr Nolan also enclosed supporting documentation, including a Statutory Declaration of Ms Boatwright’s ex-husband, Mr Graham Boatwright, dated 4 August 2017 – Exhibit 1 T10 p. 102. Mr Boatwright deposed as follows:
“I…Confirm that my ex-wife, Ms Colleen Boatwright, and I amicably separated in August 2003. Following the separation, Colleen moved into Mrs Patricia Traill’s home at 5 Gosling Street Caloundra. I live at….Otranto Avenue with our son. Colleen owned this property and she continued to have her mail delivered here after moving into Patricia’s home. Given the close proximity of the houses, I would drop her mail off to her.
Colleen had been caring for Patricia for many years already by this time however her condition was becoming such that she required full-time live in care. Colleen provided this care for many years up until Patricia was entered into an aged care facility.
The Hearing
This matter was heard in Brisbane on 29 January 2018 and 12 April 2018. The Applicant was represented by Mr Ben Nolan and the Respondent by Ms Claire Campbell. On the first hearing day, oral evidence was received (by telephone) from Dr Marion Drennan, Ms Lynda Swanston, Ms Colleen Boatwright and Ms Juliann Gatward. On the second hearing day, oral evidence was received (by telephone) from Mr Terry Matterson, Ms Janette Middleton, Ms Rosalia Hogarth and Ms Colleen Winstanley.
In addition to giving oral evidence, the following persons also provided written statements: Dr Drennan, Mr Matterson, Ms Middleton and Ms Hogarth.
Finally, Mr Nolan provided the Tribunal with a written statement from Ms Suzanne Thompson, which is dated 26 February 2018. Ms Thompson was not called to give oral evidence, but her statement, which was admitted and marked Exhibit 4, is set out below.
Ms Colleen Boatwright
Ms Boatwright testified that she had known the Applicant all of her life, and on an on-going basis for the last 40 years. She explained that the Applicant was a very private and obstinate person who did not want anyone to know she was being cared for and was unable to care for herself. The extent of the Applicant’s “phobia” or “paranoia” was that she did not want Ms Boatwright to mix her mail with her own. Accordingly Ms Boatwright kept a separate postal address and her ex-husband would drop off the mail.
Ms Boatwright estimated that she was living full-time at Gosling Street with the Applicant from around 2013, and provided full-time care until the Applicant was permanentlyadmitted into aged care in 2016. She testified that she spent almost 100% of her time caring for the Applicant and only returned to her Otranto Avenue home to take Mr Boatwright to doctors’ appointments.
Ms Boatwright gave evidence by telephone from Hospital, and it became clear to the Tribunal during the course of that evidence that she was in ill health and was struggling to answer some of the questions posed.
Ms Lynda Swanston
Ms Swanston is Ms Boatwright’s solicitor and testified that although she had known Ms Boatwright all of her life, the Applicant had only been a client since 2006.
Ms Swanston testified that she did not see the Applicant regularly, but did visit her house when requested to give legal advice. In the earlier stages of her professional relationship with the Applicant, she would only visit her once a year or perhaps once every two years. She provided evidence that she was not in a position to give evidence on the “comings and goings” in the Applicant’s home and, she could only confirm that whenever she visited the Applicant’s home, Ms Boatwright was present.
Ms Swanston had contact with Ms Boatwright at least three and up to six times each year, usually at social functions organised by people who previously lived in Papua New Guinea. Ms Swanston testified that Ms Boatwright told her that she was living with the Applicant full-time as her carer, and thought that this commenced in the 2013 - 2014 period.
Ms Swanston described the Applicant as an obstinate woman who would not come to her office, but insisted that she visit her home. She noted that the Applicant’s dementia became much worse during the course of 2015.
Dr Marion Drennan
Dr Drennan provided the following written statement which is dated 9 August 2017 – Exhibit 1 T12 p. 116:
“I have known Colleen Boatwright on a professional basis for the past three years. When I first met her, she spoke to me about having been looking after her Godmother (Patricia Alwynne Traill) whom she always referred to as Ollie. This had been the situation over the previous forty years. In the context of the stress this imposed upon her as Ollie had become Increasingly more dependent upon her, Colleen had become quite ill and required admission to hospital. She was under my care during the admission which was from 20/08/14 to 19/10/14. Upon discharge, Colleen resumed the care of Ollie, being attentive to all of her needs.
Following discharge I saw Colleen on an out-patient basis; Colleen was showing increasing signs of exhaustion. Ollie was suffering dementia, and this imposed even more strain on Colleen. Eventually, when I saw her in my out-patient clinic on 07/06/16, she was very unwell, and I arranged another admission to the clinic…
She spent another five weeks in hospital. She was in no fit state to care for Ollie, who was therefore placed in hospital and subsequently transferred to long term care. Colleen has continued to reside at Ollie’s residence.”
When Dr Drennan gave oral evidence, she testified that she had known Ms Boatwright since 2014, but did not know the Applicant. Dr Drennan testified that Ms Boatwright told her that she had been looking after the Applicant for 40 years and was her full-time carer. She testified that Ms Boatwright had difficulty putting limits on herself when it came to helping others, and had over-extended herself when caring for the Applicant. Ms Boatwright was initially hospitalised because of depression; she was in a state of exhaustion. Dr Drennan said that this was very much related to the degree of care she was giving to the Applicant.
It became clear during Dr Drennan’s testimony that while she treated Ms Boatwright, she was neither a visitor to the Applicant’s home, nor could confirm who provided care to the Applicant when Ms Boatwright was admitted to hospital in 2014. In short, while Dr Drennan could testify about her observations and diagnosis of Ms Boatwright, she could only testify as to what Ms Boatwright had told her about her living arrangements with the Applicant.
Ms Juliann Gatward
Ms Gatward gave brief oral evidence on 29 January 2018. For the previous 15 years she has lived in a unit in Otranto Avenue near Ms Boatwright’s home. Ms Gatward testified that she often saw Ms Boatwright returning to her home of a morning, and she was told that she was caring for an elderly lady.
Ms Suzanne Thompson
As noted above, Ms Thompson did not give oral evidence, however she made the following statement which is dated 26 February 2018 – Exhibit 4:
“I have known Colleen Boatwright approx 40 years and Allwyne [sic] Traill approx 50 years, “Ollie” and her husband [G]eorge were customers at our family Service Station.
I can confirm going to 5 [G]osling St, Caloundra on many occasions for parties, morning teas & birthdays where Colleen has totally organised & cooked for.
I have been with Colleen many times to take and pick-up Ollie from the hairdressers, beautician and Corbold Racing Club regularly.
Colleen has given Ollie furniture, paintings, linen to name just some of the many objects to make her home more comfy and she has also been cooking her meals for so long ‘it seems like forever’[.] Colleen buys fruit to temp[t] Ollie’s eating habits! Colleen has given Ollie a very high level of care over many years.
In my opinion, I am very certain Ollie would never have been able to function as well without Colleens undying attention.
As you have read I have been a regular visitor at Ollie’s house and I am still a regular visitor at Ollie’s nursing home at Currimundi.”
Mr Terry Matterson
Ms Boatwright’s son-in-law, Mr Terry Matterson, made a written statement dated 20 February 2018, which is set out below – Exhibit 5:
“My name is Terry John Matterson. I am Colleen Boatwright’s son-in-law and have known her for 28 years. I have known Patricia Traill for about 26 years.
Colleen lives in Patricia’s house at 5 Gosling Street Caloundra and has been living there since around 2012/13[.]
I can verify this because:
Since arriving back in Australia in 2012, I regularly travelled for work. Any time I was near the area I would take the opportunity to visit Colleen and Patricia.
Patricia and Colleen both have their separate bedrooms and Colleen has everything you would expect someone living in a house to have (clothes, personal belongings etc).
Colleen would purchase groceries and cook dinner for myself and Patricia whenever I visited.
In early 2013, I actually assisted Colleen move some of her belongings from her old Otranto Ave property into Patricia’s house.
Patricia was very old & frail and wouldn’t have been able to stay there and survive on her own without someone able to be there throughout the day & night.”

Mr Matterson testified that he lived in the United Kingdom for approximately six years and returned to Australia in late 2011. He took up a position as Assistant Coach of the North Queensland “Cowboys” rugby league club. Subsequently he was employed on the Gold Coast. In short, at no stage in recent years has Mr Matterson lived on the Sunshine Coast or in a close proximity to Ms Boatwright or the Applicant.
Mr Matterson also testified that he would visit Ms Boatwright approximately three or four times each year, and the duration of the visits was no more than a few hours. He did not stay overnight, but sometimes had dinner with his mother-in-law.
Mr Matterson was adamant that when he visited the Applicant she was not in a state of health to live on her own and that Ms Boatwright had being living with the Applicant on a full-time basis since approximately 2012.
Ms Janette Middleton
The following is a written statement from Ms Janette Middleton dated 26 February 2018 – Exhibit 6:
“My name is Janette Middleton, I have known Colleen Boatwright for aprox [sic] 9 years.
I confirm Colleen lived with Patricia Traills [sic] (Ollie) at No 5 Gosling St, Caloundra full time for 4-5 years, but I am unable to give exact dates, I also confirm Colleen would stay prior to that when Ollie was not well.
Colleen had been Ollies sole carer, attending to daily needs eg. meds, shopping, appointments, transport and meals, but more important, companionship and friendship.
I would visit Colleen and Ollie, and could reach Colleen on Ollies home phone at any time.
As Ollies health deteriorated, Colleen moved from the downstairs bedroom to upstairs, as the main bathroom downstairs was easier for Ollie and the stairs were a danger.
Colleen organised extra care for Ollie, as things became harder, but Colleen still maintained the upkeep of the home, organised mainten[an]ce when required, including the garden, all this while caring for Ollie.
I don’t have specific dates, but Colleens belongings had been there as long as I can remember, she was always there.
Ollie wanted and needed Colleen there with her, and Colleen did not let her down.”
While not knowing the Applicant or Ms Boatwright for as long as some of the other witnesses, Ms Middleton was a regular visitor to the Applicant’s home. Ms Middleton testified that she visited Gosling Street every couple of weeks and would ring “every now and again”. On all occasions when she either visited or telephoned, Ms Middleton would speak to Ms Boatwright. She also testified that the Applicant could not keep a conversation for very long and appeared to be suffering from Alzheimer’s Disease from late 2014. However, her visits were not nocturnal, and she never slept overnight at Gosling Street.
Ms Rosalia Hogarth
The following is a written statement from Ms Rosalia Hogarth dated 24 February 2018 – Exhibit 7:
“My name is Rosalia Hogarth, known as Rosy Hogarth. I have known Ms Colleen Boatwright for around 20 years. I have known Mrs Patricia Traill, known as Ollie, for around 15 years.
I can confirm that Ms Boatwright has been living in Mrs Traill’s house at Number 5 Gosling Street, Caloundra since around 2014. Prior to that Ms Boatwright was caring for Mrs Traill and spent a lot of time there, including overnight stays. Colleen was Mrs Traill’s carer and moved in because Mrs Traill could not be left alone safely for long periods.
I know this to be the case because I did visit Colleen and Ollie on many occasions. At these times I did give Colleen tips on wound care, safe transferring from bed to chair and toileting. I was shown her room by Colleen and noticed how nice she’d made it. I also noticed that Colleen had started to de-clutter Ollies lounge and dining room.”
The oral testimony of Ms Hogarth was consistent with her written statement. She testified that she visited the Applicant’s home a couple times each month, and, as the house was opposite a shopping centre she regularly visited, she would notice Ms Boatwright’s car parked there almost all the time. Further, Ms Hogarth testified that Ms Boatwright confirmed in conversations that she was living at Gosling Street and slept there each night. Finally, Ms Hogarth said that whenever she rang the Gosling Street home of an evening, Ms Boatwright would answer the phone.
Ms Hogarth has been a registered nurse for 40 years. She presented as a very reliable witness and gave precise answers to the questions posed. Of particular interest to the Tribunal were two aspects of her testimony.
Firstly, she commented on ‘falls prevention” for elderly people, and testified about Ms Boatwright’s “de-cluttering” of the Applicant’s house to reduce the risk of accidents. In that regard it became obvious that Ms Hogarth had clinically appraised the Applicant’s home and noted the location of the furniture and associated living areas. Ms Hogarth testified that Ms Boatwright explained to her that a particular room was her bedroom and pointed it out.
Secondly, she corroborated previous accounts of the extent to which the Applicant relied upon, and dominated the life of, Ms Boatwright.
Ms Colleen Winstanley
The final witness was Ms Winstanley. She resides at Buderim, but testified that she had known Ms Boatwright for 30 years and the Applicant for approximately 10 years.
As with Ms Hogarth, Ms Winstanley had been a nurse for approximately 40 years and had worked with Ms Boatwright until about a decade ago. She said that Ms Boatwright was a close friend and she would visit her every three months, but telephone her about once a week. She became acquainted with the Applicant through her friendship with Ms Boatwright.
Ms Winstanley was firm in her belief that Ms Boatwright was living with the Applicant. She saw Ms Boatwright’s bedroom, her clothes were stored there and when she visited her early in the morning Ms Boatwright would be wearing a “nightie”.
THE RELEVANT LAW
The Commonwealth Government subsidises aged care services for persons aged 65 years and over. The Aged Care Act 1997 (Cth) (the Act) and the Aged Care Principles (the Principles) contain the legislative framework for the regulation and funding of aged care. The Principles is a generic term which encompasses 19 different sets of prescribed principles made by the relevant Minister pursuant to s 96-1 of the Act. Of particular relevance for this matter are the Subsidy Principles 2014.
Subsidised care includes home care, residential care and flexible care.
Care is provided by a variety of providers. However, for the purposes of this matter, the focus is on residential aged care. This type of care is provided in aged care homes (previously and more commonly known as nursing homes) either on a permanent or short-term basis. This form of care is provided to persons who require more care than can be provided in their own homes.
Residential aged care is funded both by payments by the Commonwealth and by contributions from residents. The Commonwealth provides funding to approved providers for each person receiving care.
The key provisions in the Act are explained below.
Section 2-1 of the Act sets out the objects of the legislation. The key objectives relating to this matter are the provision of funding for aged care (s 2-1(1)(a)), the promotion of high quality care and accommodation (s 2-(1)(b)) and the facilitation of access to aged care services to those who need them (s 2-1(1)(e)).
The Act specifically mandates (s 2-1(2)) that when construing the objects, due regard must be had to:
(a)the limited resources available to support services and programs under this Act; and
(b)the need to consider equity and merit in accessing those resources.
The Act provides for the payment of a residential care subsidy by the Commonwealth, to an approved (must be deemed eligible under s 42-1) provider of residential care services, for each care recipient in their charge in respect of each payment period – s 42-1, s 43-1. A payment period is a calendar month, or a period specified in the Subsidy Principles– s 43-2.
The amount of the residential care subsidy payable by the Commonwealth is calculated in accordance with formulae contained in Division 44. In particular the quantum of the subsidy is linked to an assessment of the care recipient’s income and assets.
Section 44-22 prescribes a means tested amount calculator, which, inter alia, determines how the value of a care recipient’s assets are to be determined. Section 44-26A provides that the value of a person’s assets, for the purposes of s 44-22, is to be worked out in accordance with the Subsidy Principles.
Subsection 44-26A(6)(b) provides that:
“(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:…
(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.”
While the term “carer” is not defined in the Act, the Respondent concedes that the evidence supports a finding that Ms Boatwright was the Applicant’s long-term carer and was in receipt of a carer allowance and age pension at the date of determination – Exhibit 2, para 15. Consequently, the only contested issue is whether Ms Boatwright occupied the Applicant’s home in the two years prior to the date of assessment, pursuant to s 44-26A(6)(b)(i) – May and Secretary, Department of Health [2016] AATA 881 at [7].
CONSIDERATION
Test of occupancy
In Hughes and Secretary, Department of Health and Ageing [2007] AATA 1558; 86 ALD 239 (Hughes) Deputy President Walker considered what the phrase “occupied the home” means ([29] – [30]/ 247 – 248):
“29. As regards the contention that the value of Mrs Hughes’s Mullumbimby house should have been entirely disregarded, it is common ground that there is no statutory definition of the phrases ‘the person who had occupied the home’ or ‘had occupied the home’ in the relevant statutory context, nor have there been any court or tribunal decisions that elucidate their meaning.
30. On general principles, that language would not seem to require continuous residence throughout the year, and it is true that since 1996 Mrs Follent has spent significant amounts of time at the house, although never as much as half a given year, and generally between one and four months. She arranged for the telephone to be connected or transferred into her own name but did not move her own furniture into the house. Her postal address remained at Gymea and it is clear that her principal place of residence was the family home in that suburb. Mr Follent argued that emotionally his wife was dividing her time equally between the two residences, but occupation is predominantly a physical fact….It can be coupled with and reinforced by rights of ownership or possession, but Mrs Follent had no title to the property. Her power of attorney does not alter the situation. In the absence of proprietary rights it would be necessary to show that the house was Mrs Follent’s principal place of residence, but the evidence does not support such a finding.”
Hughes has been adopted in subsequent Tribunal determinations - see O’Carroll and Secretary, Department of Health and Ageing [2013] AATA 365 and Anderson and Secretary, Department of Health and Ageing [2013] AATA 436.
As highlighted by Deputy President Walker, the task required of the Tribunal when ascertaining if a carer has occupied the home for the past two years is a relatively straightforward one. While continuous residence is not required, there must be evidence that the relevant person has resided in the premises for most of the previous two years. The fact that a person may visit the premises and stay overnight from time to time, is not sufficient. Nor is evidence of emotional attachment, or living arrangements outside of the relevant two year period. The test of occupancy is clear: has the carer been living in the premises for most of the previous two years? Clearly, from time to time there may be reasons why this cannot be met; the test of occupancy could still be made out. For example, as is the case in this matter, if the carer was admitted to hospital for an extended period. However, in these circumstances, the break in occupancy is not born of any intention to change living arrangements.
Respondent’s submissions
The Respondent (Exhibit 2, para 17) draws the Tribunal’s attention to Ms Boatwright’s statutory declaration of 15 November 2016, wherein she deposed to have commenced residing with the Applicant “around four years ago” – Exhibit 1 T9 p. 96.
Despite claiming to have been residing with the Applicant at her Gosling Street home since approximately 2012, Ms Boatwright lodged a number of forms with the Department in the 2012 - 2016 period, where she stated that her residential address was Otranto Avenue. The Respondent drew the Tribunal’s attention to the following forms:
(a)Carer Payment and/or Carer Allowance Medical Report dated 27 August 2012. Ms Boatwright’s address is stated to be “6/13 Otranto Avenue” – Exhibit 1 T17 p. 154;
(b)Customer Declaration Form – Newstart Allowance dated 11 October 2013. Both the home and postal address is stated to be 6/13 Otranto Avenue – Exhibit 1 T18 pp. 155 – 156;
(c)Claim for Disability Support Pension dated 11 October 2013. Ms Boatwright’s “permanent address” is stated to be 6/13 Otranto Avenue, and her postal address is the same – Exhibit 1 T19 p. 158. However, in response to a question as to which best describes where you live, Ms Boatwright indicated that she lives in a home which may include “a caravan, transportable home or boat” – Exhibit 1 T19 p. 159;
(d)Separated under one roof Form dated 12 November 2013. Again in this form, Ms Boatwright records her permanent address as 6/13 Otranto Avenue – Exhibit 1 T20 pp. 164 – 165;
(e)Claim for Carer Payment and Carer Allowance Form dated 4 March 2014. Ms Boatwright claimed that she was caring for the Applicant, and put her address as Gosling Street. However, in response to the question: “Does this person live with you?” she ticked the “No” box – Exhibit 1 T21 p. 170;
(f)Carer Allowance Questionnaire: Carer not living with the person being cared for also dated 4 March 2014. The first paragraph of this form states: “This form asks questions about the personal care you provide for a person aged 16 years or over who you do not live with” (emphasis in original). In this form Ms Boatwright claimed that she provided personal care to the Applicant 7 days each week for a total of 27 hours each week – Exhibit 1 T22 pp. 180 - 183;
(g)Carer Payment and/or Carer Allowance Medical Report also dated 4 March 2014, in which Ms Boatwright’s address is again stated to be 6/13 Otranto Avenue – Exhibit 1 T23 p. 184;
(h)Authorising a person or organisation to enquire or act on your behalf dated 13 April 2016. In response to the question asking what her permanent address was, Ms Boatwright stated it was 6/13 Otranto Avenue – Exhibit 1 T6 pp. 46 - 47; and
(i)Aged Care Fees Income Assessment Form also dated 13 April 2016. Ms Boatwright again stated that her permanent address was 6/13 Otranto Avenue – Exhibit 1 T7 p. 59.
Not only did Ms Boatwright state that she was living at Otranto Avenue during the 2012 - 2016 period, she also gave detailed information about her living arrangements in support of these assertions.
Of particular significance is the Separated Under one roof Form (Exhibit 1 T20 pp. 164 – 165) in which she ticked the Yes box to the question “Are you living at the same address as the other person”. Further, in response to question 9: “How long do you intend to live at the same address with the other person”, she answered: “depending on his health & mine”.
The Respondent also highlights that the forms completed by Ms Boatwright contained a statement that declared that the information provided was correct and that providing false or misleading information is a serious offence – Exhibit 2, para 19.
Finally, the Applicant provided inconsistent accounts regarding the period of time she occupied the Gosling Street premises – Exhibit 2, para 21:
(a)the Carer/Close Relative Questionnaire dated 2 November 2016 identifies the occupancy period as three years – Exhibit 1, T9, p. 94;
(b)the statutory declaration dated 15 November 2016 identifies the period as “four years” – Exhibit 1, T9, p. 96;
(c)in a telephone conversation with the Department on 21 October 2016, Ms Boatwright claimed the occupancy period was “over five years” – Exhibit 1 T13 p. 129; and
(d)in a telephone conversation with the Department on 27 November 2016, Ms Boatwright said the occupancy period was “three years” – Exhibit 1 T13 p. 132.
Applicant’s submissions
The Tribunal considered two documents prepared by Mr Nolan on behalf of the Applicant. The first is dated 7 August 2017 (Exhibit 1 T11 pp. 103 – 107) and the second is dated 9 November 2017. There is a significant overlap in the matters outlined in the two documents.
In the first document, Mr Nolan provides the following reasons for Ms Boatwright providing inconsistent addresses – Exhibit 1 T11 p. 105:
“Without access to the documents it is difficult to fully comment however we offer the following reasons for the inconsistent address being provided:
·     Mr Graham Boatwright and their son remained in Ms Boatwright’s property at 6 13 Otranto Ave Caloundra. Ms Boatwright was busy providing full-time care and talking [sic] Mrs Traill to appointments. It was more convenient to have mail delivered there as Mr Boatwright would advise Ms Boatwright of any mail and regularly deliver it to her.
·     6 13 Otranto Ave Caloundra was the house Ms Boatwright actually owned. The home she actually resided in during the relevant period was 5 Gosling Street Caloundra. The distance between the two houses is around 5 minutes.
·     As it was Mrs Traill’s property, it was not necessary for Ms Boatwright to change rates or utilities notices into her own name.
There wasn’t a particular date that Ms Boatwright ‘moved in’ to the property as such. The transition from a supportive friend to a full-time, live-in carer happened organically over a number of years, if not decades.”
In the second document, Mr Nolan made the additional submissions:
“Ms Boatwright often had assistance with completing the various forms, including from Centrelink employees, so if the forms themselves or the information provided on them is not correct then it may not entirely be her fault as she was simply completing them as instructed.
It needs to be remembered that the people concerned in this case are elderly pensioners. Mrs Traill has dementia and is now in a full-time aged care facility. Ms Boatwright has recently suffered a stroke and her own health has deteriorated. This has been in part due to the stress of caring for Mrs Traill over the years but having to go through this current process to prove where she has been living and the financial uncertainty that comes with the outcome of this appeal has also taken a toll on her…
The Department holds various forms filled out over a number of years where Ms Boatwright put Otranto Ave as her residential address and appear to be relying solely on this evidence to justify its decision regarding where Ms Boatwright lived during the relevant period.
We have obtained statutory declarations and several letters, two of which are from independent Doctors, confirming either how long Ms Boatwright had been residing at the property and/or the level of care she had been providing for Mrs Traill. In our view, these documents confirm that Ms Boatwright had resided in Mrs Traill’s property at Gossling [sic] Street for at least the relevant period.
The fact that the dates provided on the various letters and statutory declarations can not necessarily be reconciled to the forms completed by Ms Boatwright (as the Department appears to be attempting to do) actually adds credibility to the fact that the letters and declarations were provided freely to the best of that particular persons knowledge.
In Ms Boatwright’s case, she was informed by a Centrelink employee that she needed to have lived in the property for at least three years in order for Mrs Traill’s home to be exempt from the calculation of her assets. Ms Boatwright took that time frame literally in her own Statutory Declaration even though she had been living there for significantly longer.”
Did Ms Boatwright occupy the Gosling Street home of the Applicant?

The evidence before the Tribunal is divergent.
The Respondent, quite correctly, highlights the fact that Ms Boatwright repeatedly stated that her principal place of residence was at Otranto Avenue and not Gosling Street.
The Tribunal rejects the contention, from the evidence presented, that any confusion by Ms Boatwright was the result of Centrelink advice. It is not uncommon that a case is based on the claimed incorrect oral advice of a Centrelink officer, and from that point onwards a spiral of misfortune ensues. Great care needs to be taken when contentions of this type are put forward. Usually they are suggested from the perspective of an allegedly unsuspecting person who has put herself or himself at disadvantage as a result. The obvious problem with such a contention is clear. Why would a professional and well trained officer give to an untrained person manifestly bad advice? This can occur from time to time and cannot be automatically rejected, but as a standard contention without more, it should be given little or no weight.
Mr Nolan also sought to rely on Schiavello and Secretary, Department of Health and Ageing [2012] AATA 538. This case also involved a carer providing to the Department a residential address different to that of the person being cared for. In particular Mr Nolan relied on the following passage (at [17]):
“Most of Ms Schiavello’s evidence related to addresses she had written on Centrelink forms and other documents. These addresses related to properties other than the Armadale property. The issue is not what Ms Schiavello wrote on forms or why, but where she was actually living.”
It is self-evident that the task of the Tribunal is to ascertain where Ms Boatwright was living during the relevant period. However, to reach a sound conclusion contemporary documentation, particularly in statutory declarations, as to a person’s address is prime evidence of occupancy of particular premises. In short, if the Tribunal in Schiavello was discounting the probative value of such documentation in making a finding on occupancy, then, with respect, it was in error.
In this matter the key question is why Ms Boatwright continued to assert that her principal home was Otranto Avenue, if in fact she was living at Gosling Street for least the two years before the Applicant was admitted into full-time aged care.
The answer to this question is to be found in evidence provided about the character of both the Applicant and that of Ms Boatwright.
When giving evidence on 29 January 2018, Ms Boatwright described the Applicant as a very private person who was obstinate and did not want anyone knowing that she was being cared for. Subsequently, Ms Boatwright referred to the Applicant’s “paranoia” and her refusal to allow Ms Boatwright’s mail to be delivered to her residential or post office box addresses.
This description of the Applicant was mirrored in the testimony of Ms Hogarth and Ms Winstanley on 12 April 2018. They described the Applicant as a domineering and manipulative person who controlled, as much as she could, Ms Boatwright. The picture painted by the witnesses was one of Ms Boatwright being a dedicated and loving carer who was pushed to her physical and mental limits by the endless demands and behaviour of the Applicant. No doubt much of this odd behaviour could be attributed to the slow but steady onset of dementia which progressively clouded the mental faculties of the Applicant.
Further, the Tribunal had the benefit of Dr Drennan’s testimony on 29 January 2018, as well as her medical report of 9 August 2017 – Exhibit 1 T12 p. 116.
Ms Boatwright was hospitalised from 20 August 2014 until 19 October 2014 due to depression and exhaustion. She was again hospitalised in June 2016 for five weeks, after her cognitive function became impaired following a mini-stroke. It was only after the second admission that it became clear that she was no longer physically able to care for the Applicant.
When the Applicant gave evidence on 29 April 2018, it was obvious from her speech and how she replied to questions posed, that she is still a very sick person.
Consequently, the evidence discloses that at least in the period 2014 through to 2016, Ms Boatwright was ill, and, based on Dr Drennan’s evidence, some of the cause of this ill-health flowed from the demands placed on Ms Boatwright in caring for the Applicant.
The overall evidence, leads to the following conclusions:
(a)Ms Boatwright has known the Applicant all her life;
(b)Ms Boatwright is the god-daughter of the Applicant, and as the Applicant had no children of her own, Ms Boatwright solely cared for her;
(c)after separating from her husband, and as her children became adults, Ms Boatwright devoted more and more time to the care of the Applicant;
(d)the Applicant was suffering from dementia;
(e)the Applicant was a domineering person who controlled Ms Boatwright and was paranoid about her “independence” and did not want third persons to know that she was being cared for;
(f)Ms Boatwright did not challenge the demands and strange behaviour of the Applicant; and
(g)the stress and demands of caring for the Applicant, led to Ms Boatwright’s health progressively deteriorating, until she could no longer care for the Applicant.
The sheer weight of evidence presented leads to the conclusion that Ms Boatwright was living at Gosling Street as the full-time carer of the Applicant for at least three years prior to her admission into full-time aged care. The exact time that the Applicant commenced occupying the Gosling Street property is unclear. It would appear that Ms Boatwright had been caring for the Applicant over a very long period, and the degree of care provided increased as the health of the Applicant declined. The seeming inconsistencies in the time periods provided by Ms Boatwright do not derogate from the conclusion that she commenced living at Gosling Street as the Applicant’s full-time carer sometime in the 2012 to 2013 period.
Ms Campbell very persuasively outlined the Respondent’s case as to why the decision under review should be affirmed. Normally where a carer has declared that they are not living with an applicant, the Tribunal will accept the veracity of the contemporaneous documentation and give less weight to oral testimony.
In this matter, however, the seeming contradictions in Ms Boatwright’s case became explicable on hearing from the various witnesses. It should also be noted that the Tribunal formed a very favourable view of the evidence given by Ms Boatwright as well as the numerous friends and colleagues who corroborated her version of events.
It is not necessary, and perhaps not possible, for the Tribunal to reach a final view as to why Ms Boatwright continued to claim that her permanent residence was Otranto Avenue when she was, in fact, living at Gosling Street. Various explanations have been given, including alleged misleading Centrelink advice, Ms Boatwright’s confusion, the difference between ownership and residence and, finally, her state of health. Certainly, it is clear that during much of the relevant period, Ms Boatwright was unwell and confused. However, the more likely explanation from the evidence, is that Ms Boatwright’s contradictory answers were all born from her desire not to upset the Applicant. The Applicant in turn was a private, woman who had a strange desire to hide from the world her dependence on Ms Boatwright. The relationship between the two women was complicated and ultimately severely impacted on the health and well-being of Ms Boatwright. Viewed from this prism, Ms Boatwright’s actions in filling out the various forms, and her general behaviour, including mail collection, becomes explicable.
CONCLUSION
It follows from the above findings that the Respondent incorrectly included the value of the Applicant’s home at Gosling Street in her assets.
The overwhelming weight of evidence supports a finding that Ms Boatwright was the full-time carer of the Applicant and occupied the Gosling Street home for at least two years prior to the Applicant being admitted into aged care, and, more likely was occupying the Gosling Street premises for somewhere between three and four years.
DECISION
The decision under review is set aside and in substitution it is determined that the value of the Applicant’s home should be disregarded in the calculation of the residential care subsidy.

I certify that the preceding “90”(“ninety”) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..........................[SGD]..............................................
Associate
Dated: 18 May 2018

Date(s) of hearing: 29 January 2018, 12 April 2018

Advocate for the Applicant: Mr Ben Nolan

Advocate for the Respondent: Ms Claire Campbell

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 1355

18 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Standing

Date(s) of hearing:	29 January 2018, 12 April 2018
Advocate for the Applicant:	Mr Ben Nolan
Advocate for the Respondent:	Ms Claire Campbell
Solicitors for the Respondent:	Sparke Helmore