White and Secretary, Department of Social Services (Social services second review)

[2019] AATA 5245

White and Secretary, Department of Social Services (Social services second review) [2019] AATA 5245 (6 December 2019)

Division:GENERAL DIVISION

File Number:          2018/6904

Re:Ms Joan White

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:6 December 2019

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

Catchwords

FAMILY ASSISTANCE AND SOCIAL SECURITY – Aged care – residential care subsidy – asset test assessment – when to disregard the value of Applicant’s home – carer occupation of home for at least two years prior to assessment – decision affirmed.

Legislation

Aged Care Act 1997 (Cth)

REASONS FOR DECISION

Member R West

6 December 2019

INTRODUCTION

1. This matter concerns an application for review of a decision of an authorised review officer dated 26 October 2018 (the Reviewable Decision) to affirm a decision of a delegate of the Secretary, Department of Social Services (the Respondent) dated 24 February 2017. The delegate decided not to disregard the value of the Applicant’s principal home    (House 90) from her aged care means test assessment under the Aged Care Act 1997 (the Act).

2. The application for review was made by the Applicant’s daughter, Ms Trudy White (Ms White), on behalf of the Applicant pursuant to a power of attorney. The Applicant was represented by Ms White at the hearing. The Respondent was represented by              Ms Maleah Underhill of the Department of Social Services.

   ISSUES ON REVIEW

3. The Applicant contends that the means test assessment for the purpose of calculating her entitlement to a residential care subsidy under the Act should not have included the value of her principal home, because the home was exempt under s 44-26A(6)(b)(i) of the Act. The value of a principal home is exempt from assessment under s 44-26A(6)(b)(i) of the Act if at the time of the assessment, the home was occupied by a carer of the person for the past two years. The Applicant contends that Ms White was a carer within the meaning of the Act and had occupied her principal home for the requisite two years.

4. The Respondent does not dispute that Ms White was a carer for the Applicant for the relevant purposes. 

5. The point of contention is whether Ms White occupied the Applicant’s principal home at House 90 for a period of two years prior to the date of assessment, as required by s 44–26A(6)(b)(i) of the Act.

   RELEVANT FACTS

6. The Respondent assessed the value of the Applicant’s assets, as at 24 February 2017 to determine the amount of residential care subsidy under s 44–22 of the Act, as $243,021.20.[1] This value was the sum of the following assets:

   ·value of House 90 - $340,000 (capped at $162,087.20);

   ·financial accounts - $80,434.00; and

   ·other assets - $500.00.

   [1] An Assets Summary Statement and a covering letter to the Applicant dated 3 August 2017 was provided by the Respondent to the Tribunal subsequent to the hearing.

7. The parties do not dispute the following facts and the Tribunal accepts them as agreed, and makes the following findings:

   ·the Applicant resided at a different house in the same street as House 90    (House 73) from 26 August 1988 until 13 August 2015 when she sold the property;

   ·the Applicant purchased House 90 in 2015 and resided there from 14 August 2015 until 12 April 2017;

   ·Ms White provided regular care to the Applicant from at least 8 May 2015 until 13 April 2017;

   ·Ms White resided at House 90 as a carer for the Applicant from 14 August 2015 until 12 April 2017; and

   ·the Applicant ceased residing at House 90 and commenced full-time residential care in a Bupa aged care facility on 13 April 2017.

8. There is some dispute between the parties as to the circumstances under which Ms White provided care to the Applicant prior to her taking up residence in House 90 on 14 August 2015.  For reasons that are set out below, the Tribunal makes no findings in relation to these matters as they are not relevant to the issue to be resolved in the review.

   LEGISLATIVE PROVISIONS

9. Section 44–26 of the Act sets out how the care recipient’s total assessable income free area is assessed, while sections 44–26A and 44–26C concern determination of the value of the care recipient’s assets. Section 44–26A(6) expressly provides:

   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 *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.

10. There is no dispute that Ms White does not fall within the definition of “dependent child” or “young person”. While Ms White is clearly a “close relation” for the purposes of s 44–26A(6)(c) of the Act, that section requires that the “close relation” of the person occupy the home for a period of five (5) years. It is clear on the evidence that Ms White was not an occupant in either of the Applicant’s residences (House 73 or House 90) for the required five year period.

11. Accordingly, the Applicant’s claim rests on the assertion that s 44–26A(6)(b) applies.       In other words that, at the date of assessment, Ms White was a carer of the Applicant who had occupied House 90 for the past 2 years and was eligible to receive an income support payment at the time.

12. The Respondent accepts that Ms White was a carer eligible to receive an income support payment but contends that, as House 90 could not have been occupied by Ms White for the requisite two year period prior to the date of assessment, the value of this property cannot be disregarded from an assessment of the Applicant’s assets.

13. The date of assessment for the purpose of the Applicant’s claim is 24 February 2017, being the date the delegate of the Respondent made the assessment upon which the Applicant’s Permanent Residential Care Claim for Combined Income and Assets Assessment was rejected.

14. On 24 February 2017 Ms White had resided in House 90 for a period of slightly less than 18 months, being the entire period after the Applicant moved into House 90 on 14 August 2015. This was clearly less than the two year period required under s 44–26(6)(b)(i) of the Act.

15. The Applicant asserts that the Tribunal should have regard to the fact that Ms White provided care to the Applicant in her home at House 73 before she moved to House 90 on 14 August 2015. Unfortunately for the Applicant, s 44–26A(6) of the Act is concerned with the sole issue of whether a particular property, in her case House 90, is to be included in the asset assessment. The section is directed to the circumstances that applied in respect of that particular asset and not more generally to the circumstances of the Applicant. Whether or not the value of House 90 is included in the Applicant’s asset assessment depends on the period of Ms White’s occupancy of House 90. It is not the period of care provided by Ms White that is relevant, but rather her period of occupancy of House 90, albeit in her capacity as a carer.

16. The fact that Ms White was a carer prior to her occupancy of House 90 is therefore not relevant to determining whether House 90 should be excluded from the asset assessment under s 44–26A(6) of the Act.

17. The Tribunal notes that the Applicant ceased to reside at House 90 on 13 April 2017 when she moved into an aged care facility. This is the final date upon which Ms White provided care to the Applicant and was eligible to receive income support payments as required by s 44–26A(6)(b)(ii) of the Act. Had an assessment been made at that date, Ms White would not have met the two year requirement in s 44–26A(6)(b)(i) of the Act. If an application were to be made for an asset assessment at any time after 13 April 2017, Ms White would not, at that time, have qualified as a carer eligible to receive income support payments as required by s 44–26A(6)(b)(ii) of the Act.

18. For these reasons the Tribunal finds that the value of House 90 should not be disregarded in the calculation of the Applicant’s assets at the time of assessment on 24 February 2017.

    DECISION

19. The decision under review is affirmed.

20.     I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Member R West.

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

Associate

Dated: 6 December 2019

Date of hearing:	24 October 2019
Date final submissions received:	11 November 2019
Advocate for the Applicant:	Ms Trudy White
Solicitors for the Respondent:	Ms Maleah Underhill