Traill and Secretary, Department of Health (Social services)

This matter concerned an appeal by the Applicant, Ms Traill, against a decision by the Secretary, Department of Health, which included the value of her former principal residence in the assessment of her assets for permanent residential care purposes. The dispute centred on whether Ms Traill's carer, Ms Boatwright, had occupied Ms Traill's home for the two years prior to Ms Traill entering permanent aged care, a condition for the home to be disregarded as an asset.

The Tribunal was required to determine whether Ms Boatwright's occupation of Ms Traill's home met the criteria stipulated by s 44-26A(6)(b)(i) of the relevant Act. Specifically, the core legal issue was to ascertain if Ms Boatwright had resided in the premises for the two-year period preceding Ms Traill's entry into aged care, thereby qualifying the property for exemption from asset assessment.

The Tribunal applied the principles established in *Hughes and Secretary, Department of Health and Ageing* [2007] AATA 1558, which clarified that "occupation" does not necessitate continuous residence but requires evidence of residing in the premises for most of the preceding two years. The Tribunal found that while Ms Boatwright was a long-term carer and received a carer allowance, the evidence did not establish that she had occupied the home for the requisite two-year period. A statutory declaration from a neighbour indicated Ms Boatwright had permanently moved into the home over three years prior when Ms Traill required around-the-clock care. However, the Authorised Review Officer had given greater weight to earlier declarations made by Ms Traill and her nominee, which were inconsistent with the later claim of Ms Boatwright's continuous residence. The Tribunal concluded that the evidence did not support Ms Boatwright's residence for the two years prior to Ms Traill entering care, and therefore, the home could not be treated as an exempt asset.