Watson and Secretary, Department of Health (Social services)

[2018] AATA 751

Watson and Secretary, Department of Health (Social services) [2018] AATA 751 (9 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4553

Re:Una Watson

APPLICANT

AndSecretary, Department of Health

RESPONDENT

DECISION

Tribunal:N Gaudion, Member

Date:9 March 2018

Date of written reasons:        30 March 2018

Place:Sydney

The decision under review is affirmed.

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

N Gaudion, Member

Catchwords

HEALTH – Aged care – blind pension – application for financial hardship assistance – assessment of Applicant’s assets – where amounts gifted in excess of threshold – no discretion – decision under review affirmed

Legislation

Aged Care Act 1997 (Cth) s 52K.1(2)

Fees and Payment Principles 2014 (No. 2) (Cth) s 38(2)

REASONS FOR DECISION

N Gaudion, Member

30 March 2018

1. At the conclusion of the hearing of this matter heard on 9 March 2018, the terms of the decision intended to be made and the reasons for that decision were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly after.  The written reasons are set out below. 

2. By way of background, the applicant seeks a review of a decision of an Authorised Review Officer of the Department of Human Services that was made on 17 July 2017. The Authorised Review Officer affirmed the original decision made on 15 June 2017 to reject the applicant's application for financial hardship assistance for aged care assessment purposes.

3. The issue to be determined by the Tribunal is whether the correct decision has been made to reject the applicant's application for financial hardship assistance for aged care purposes on the ground that she gifted more than $30,000 in the previous five years.

4. The facts in the matter are largely agreed. The background is as follows. The applicant was born in December 1921 and is currently 96 years old.  She was in receipt of an age pension since 12 July 1984 and then a blind pension since 13 October 2014.

5. On 7 November 2014, the applicant met with a Financial Information Services Officer. In attendance was also her son, Graham Watson and Elizabeth Carlo.  Elizabeth Carlo is understood to be a registered financial planner who had been assisting the applicant for a number of years.  The purpose of the meeting was to understand the applicant's options with respect to her assets since she had been approved for a blind age pension.

6. It is asserted that at the meeting, the applicant was told that she was no longer subject to the gifting provisions associated with a standard age pension, and that she could deal with her assets as she wished.  A complaint of the applicant is that the Financial Information Services Officer did not provide any proactive advice about what the implications would be if her residential care requirements changed in the future. I am not aware of the scope in which the financial planner in attendance was engaged, but it is understood that the financial planner did not provide any advice with regards to the implications on the applicant if her aged care requirements changed.

7. Given the understanding that she was allowed to gift her assets, she did so.  It is agreed by the applicant and the respondent that the following amounts were gifts by the applicant to her only son, Graham Watson:

   a.1 November 2014 a loan of $100,000;

   b.2 September 2015 a cash amount of $100,000;

   c.6 October 2015 a cash amount of $100,035;

   d.23 March 2016 a cash amount of $36,008;

   e.18 May 2016 a cash amount of $8000;

   f.6 September 2016 a cash amount of $50,982.

8. The applicant's health deteriorated and she moved into a different level of residential aged care. At the time of changing her residential care, the applicant had minimal assets other than the amount of approximately $64,000 that was available to her from the previous unit she occupied in the aged care facility.

9. There is an asset test associated with the amount that the applicant is required to pay for her current level of care. This asset test takes into account amounts that have been gifted as assets. This resulted in the aged care facility requiring the applicant to pay a lump sum amount understood to be a refundable accommodation deposit of $360,000 or an additional daily amount of $56.81.

10.As the applicant had gifted most of her assets, she did not have the personal capacity to pay the amount of $360,000. Therefore she is currently being charged the daily rate, which is being deducted from the $64,000 amount the aged care facility holds from her previous residential unit.

11.The applicant applied for financial hardship assistance for aged care assessment purposes on 16 May 2017.

12.I wish to note that the honesty and the integrity of the applicant is not in question. I have not seen anything in the information available to suggest that the applicant acted inappropriately in any way in order to gain an unfair advantage. At the time the applicant gifted the funds to her only son, she was entitled to do so and it was not until after she had moved into a different level of aged care that she began to understand the implications of her past actions to gift the money to her son.

13.The decision of the tribunal is an application of the law and not a comment on the character of the applicant.

14.Section 52K.1(2) of the Aged Care Act 1997 (Cth) states that when deciding whether to make a determination for financial hardship, the Secretary must have regard to the matters (if any) specified in the Fees and Payments Principles. Section 38(2) of the Fees and Payment Principles 2014 (No. 2) (Cth) states that the Secretary must not make a financial hardship determination in relation to a person if that person has gifted more than $10,000 in the previous 12 months or $30,000 in the previous five years. It is agreed that the applicant has gifted amounts in excess of these thresholds within the relevant periods at the time the application was made.

15.There is no discretion provided within the legislation to disregard the amounts of the gifts when considering an application for financial hardship. 

16.Therefore the decision under review is affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of N Gaudion, Member

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Associate

Dated: 30 March 2018

Date(s) of hearing:	9 March 2018
Applicant:	G Watson
Solicitors for the Respondent:	Department of Human Services