Ms X had been a permanent resident in an aged care facility since February 2016, incurring $132,099.35 in monthly fees during this time. As a consequence, the aged care facility intended to take steps to recover the debt, placing Ms X's accommodation at risk. The NSW Trustee and Guardian, acting in its capacity as Ms X's financial manager, decided to sell a property she owned jointly with her son, DNP. DNP disputed the sale on that basis that it is was not a 'correct and preferable decision' under the Administrative Decisions Review Act 1997.
At the hearing, DNP agreed the only other practical way in which the debt could be repaid in the short term would be for him to obtain a loan of $140,000. DNP provided no evidence of his income or assets. Mr McCarthy, representing the NSW Trustee and Guardian also submitted that DNP had been given a reasonable opportunity to organise repayment.
In making her order, Deputy President Hennessy considered the following:
- as at 15 August 2018, Ms X owed her aged care facility $132,099.35;
- the solicitors for the aged care facility had commenced debt recovery action;
- Ms X is highly unlikely to return to live in her home which she owns as a tenant in common with DNP;
- the property was valued at between $1,800,000 and $2,000,000;
- the property was currently occupied but no rent is being paid; and
- DNP was on notice as of 29 May 2018 that he needed to put forward a concrete proposal to repay the debts but had not done so by the deadline of 6 July 2018.
The Tribunal approved the decision to sell the property jointly owned by Ms X and DNP.
The Tribunal reasoned that Ms X's accommodation in an aged care facility was at risk, and that her welfare and interests should be given paramount consideration. Given the lack of evidence provided, the Tribunal was not satisfied that DNP could readily raise funds to cover the amount owing. As such, the only source of funds in the short term was Ms X's share in the property.