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Same-Sex: Same Entitlements: Chapter 14

Same-Sex: Same Entitlements Report


 

Chapter 14. Aged

Care

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14.1 What

is this chapter about?

This chapter examines discrimination against same-sex

couples and their families in the context of residential aged care (aged care).

When people enter an aged care facility they

usually have to pay certain daily fees and other payments to fund their care and

residence. The Aged Care Act 1997 (Cth) (the Aged Care Act) sets out how

those fees and payments should be calculated in both public and private aged

care facilities.

The Aged Care Act uses assets

and income tests to calculate the various residential care fees and the

liability to pay a bond.

For an opposite-sex

couple, the value of the family home is exempted from the assets test if it is

still occupied by the aged person’s partner or close family member.

However, the Aged Care Act does not recognise a same-sex couple as a genuine

couple, so the family home of a same-sex couple is included in the assets test

even if a same-sex partner is living in

it.

Similarly, the income tests under the Aged

Care Act treat a same-sex couple as two individuals rather than as a couple.

This means that same-sex couples will be subject to different income thresholds

than opposite-sex couples.

The end result is

that a person in a same-sex couple will often pay more than a person in an

opposite-sex couple when entering an aged care facility.

The discrimination against same-sex couples

regarding the calculation of aged care daily fees, payments and bonds occurs

because of the definitions of ‘member of a couple’ and

‘partner’ in the Aged Care Act. These definitions include married

and opposite-sex de facto partners, but exclude same-sex partners.

Further, the definitions of ‘dependent

child’ and ‘close relation’ may exclude the child of a lesbian

co-mother or gay co-father.

The narrow

definitions can affect how a same-sex couple’s assets are assessed for

accommodation payments and may jeopardise the ownership of the family

home.

This chapter outlines how the application

of assets and income tests for residential aged care fees and payments

discriminate against same-sex couples. It also discusses some of the

non-financial concerns that same-sex couples have about residential aged care.

The chapter identifies how the human rights of

aged same-sex couples are breached. It then recommends changes to the law in

order to address those breaches.

Specifically,

this chapter addresses the following questions:

  • Do same-sex couples pay more for aged care?
  • What other issues face ageing same-sex

    couples?

  • Does aged care legislation breach human

    rights?

  • How should aged care legislation be amended to eliminate

    future breaches?

14.2 Do

same-sex couples pay more for aged care?

Same-sex couples are likely to pay different fees for

aged care than opposite-sex couples. Often same-sex couples will pay more than

opposite-sex couples, sometimes they will pay less. Where same-sex couples do

pay more, the impact can be devastating.

14.2.1 There

are a range of fees for residential aged care

A person entering an aged care facility must pay both

an accommodation payment and daily residential care fees. These

maybe reduced and/or waived if a person is facing ‘genuine financial

hardship’.[1]

An

assets test is used to determine the accommodation payments (in the form

of an accommodation charge or an accommodation bond).

An income test is used to determine daily

residential care fees.

The modified social

security assets and income tests used to determine those fees take into account

the income, assets and housing needs of the individual going into care as well

as his or her partner, close relation or dependent child.

The definitions of ‘partner’,

‘close relation’ and ‘dependent child’ in the Aged Care

Act exclude same-sex partners and may exclude a child born into and

raised by a same-sex couple in some circumstances. A carer is not specifically

defined.

This means that the assets and income

tests apply differently to same-sex families than to opposite-sex families. The

following sections explain the discriminatory impact that this can have on

same-sex families.

14.2.2 A

same-sex partner who owns a home will be liable for ‘accommodation

payments’

A person entering an aged care facility will only have

to make an accommodation payment if he or she has qualifying assets valued at

more than $33 000.[2]

If a person is in a recognised couple then the

qualifying assets include the combined asset pool of the couple. The assets are

then valued at 50% of the couple’s total relevant asset

pool.[3] In other words, a person who

is a member of a recognised couple will only have to pay an accommodation

payment if the average of the couple’s qualifying assets is valued at more

than $33

000.[4]

The

Aged Care Act provides that the value of a person’s home is

disregarded for the purposes of the assets test if that home is occupied

by:

  • the person’s ‘partner’ (or the

    other ‘member of a

    couple’)[5]

  • a ‘dependent child’ of the

    person[6]

  • a ‘close relation’ of the person in

    certain circumstances[7]

  • a carer of the person in certain

    circumstances.[8]

However, an elderly same-sex couple

is unlikely to benefit from any of these exemptions, as described below. This

means that a same-sex couple’s home will almost always be counted in the

assets test. So a person in a same-sex couple entering aged care will generally

be liable for an accommodation payment if he or she owns a home (solely or

jointly).

(a) A

same-sex partner is not a ‘partner’

The Aged Care Act defines a ‘partner’ as

the other ‘member of a couple’ of which the person is also a

member.[9]

A

‘member of a couple’ is a person who is legally married to another

person or someone who lives with another person ‘in a marriage-like

relationship, although not legally married to the other

person’.[10]

The term ‘marriage-like

relationship’ is not defined in the Aged Care Act. However, as discussed

in Chapter 4 on Recognising Relationships, the 1998 Federal Court decision in Commonwealth of Australia v HREOC and Muller suggests that the reference

to a ‘marriage-like relationship’ will exclude a same-sex

relationship.[11]

Consequently, a member of a same-sex couple

entering an aged care facility cannot exempt his or her home from the assets

test, even though his or her partner is living in it.

(b) A

same-sex partner is unlikely to be a carer

If a same-sex partner is a carer then the

couple’s home may be exempt from the assets

test.[12] A carer is not

specifically defined in the legislation but includes a person who:

  • has been living in the home for at least two years; and
  • is eligible to receive an income support payment

    (for example a Centrelink or Department of Veterans’ Affairs means-tested

    pension or

    benefit).[13]

Only

a limited number of people will be eligible for those payments, and therefore a

limited number of same-sex partners will qualify as a

carer.[14]

(c) A

child of a same-sex couple may be a ‘dependent

child’

If a ‘dependent child’ is living in the

house owned by the person entering an aged care facility, the home will be

excluded from the assets

test.[15]

The

Aged Care Act defines a ‘dependent child’ to include a child where

the adult:

(i) is legally responsible (whether alone or jointly with

another person) for the day-to-day care, welfare and development of the young

person; or

(ii) is under a legal obligation to provide financial

support in respect of the young person...[16]

In

addition, the child must not be in full-time employment or be receiving a social

security pension or benefit.[17] And

the child must be either under 16, or between 16 and 25 and in full-time

education.[18]

Chapter

5 on Recognising Children notes that when children are born to a lesbian or gay

couple their parents may include a birth mother, lesbian co-mother, birth father

or gay co-father(s).[19]

This definition of ‘dependent

child’ potentially includes the child of all of these parents. However, it

may be more difficult for a lesbian co-mother or gay co-father to prove that he

or she is ‘legally responsible’ or ‘under an obligation to

support’ a child, than it would be for a birth mother or birth father.

The legislation does not specify what is

required to prove these elements of the definition. However, a birth mother or

birth father are generally the legal parents of a child and therefore are assumed to have legal responsibility. On the other hand, a lesbian

co-mother or gay co-father may have to take additional steps to prove that legal

relationship. A parenting order in favour of the lesbian co-mother or gay

co-father should be sufficient. However, as Chapter 5 on Recognising Children

explains, parenting orders can be expensive and may involve lengthy court

proceedings.

If a same-sex couple does not

have the resources to go through this process, a lesbian co-mother or gay

co-father may be in a more tenuous position than a birth mother or birth father

(who need little more than a birth certificate to prove that a child is a

‘dependent child’).

However, the

impact of this potential discrimination is limited, as few people old enough to

enter an aged care facility will have a child under 25 living with them in their

home.

(d) A

child of a lesbian co-mother or gay co-father is not a ‘close

relation’

Under the Aged Care Act, a ‘close

relation’ of a person entering residential aged care is:

the father or mother of the person, or a sister, brother,

child or grandchild of the person, or a person included in a class of persons

specified in the Residential Care Subsidy

Principles.[20]

In

addition, the person must have occupied the home for the past five years and

must be eligible to receive an income support payment at the

time.[21]

‘Child’

is not defined in the legislation. As discussed in Chapter 5 on Recognising

Children, where there is no definition of child it is generally assumed that the

legislation is only referring to the child of a birth mother or birth father.

This means that the child of a lesbian co-mother or gay co-father will not

qualify as that person’s ‘close relation’.

(e) A

same-sex couple’s home will usually be counted in the assets test for

accommodation payments

Since an elderly same-sex couple is unlikely to

qualify for any of the exemptions under the legislation, the couple’s home

will generally be counted in the assets

test.

The full value of a same-sex

couple’s home will be taken into account in the assets test if the partner

entering aged care is the sole title-holder. And half of the value will be taken

into account if the partner entering aged care holds half the title of the home.

The value of the home will only be exempt if the partner entering aged care has

no interest in the home at all. An opposite-sex couple’s home would be

exempt in all these circumstances.

Therefore,

most people in a same-sex relationship who own a home on their own, or with

their partner, will have to make accommodation payments. Only those opposite-sex

couples with sufficient assets on top of their home will have to make

these payments.

14.2.3 A

same-sex partner who owns any other assets is likely to be liable for

accommodation payments

In addition to a home, there are a large range of

other assets included in the assets

test.[22]

If a person is a member of an opposite-sex

couple, the value of that person’s assets and the value of his or her

partner’s assets will be added together and then halved for the purposes

of the assets test.[23]
However, if a person is a member of a same-sex

couple, the full value of that person’s assets will be counted and none of

his or her partner’s assets will be counted. This will disadvantage a

same-sex couple where the partner entering aged care owns substantial assets,

and the other partner owns very few assets. It could be to the advantage of the

same-sex couple if the situation were

reversed.

The main point is that for a same-sex

couple, which partner owns what asset will determine liability for accommodation

payments. In an opposite-sex couple, it does not matter who owns what

assets.

14.2.4 A

same-sex couple will generally pay higher accommodation payments

The assets test described above is used to decide

whether, and how much, a person entering aged residential care must pay in accommodation payments.

Depending on

the level of care a person requires, the accommodation payment will take

the form of one of two types of payments:

  • an accommodation charge
  • an accommodation

    bond.

The following sections show

that the discriminatory application of assets tests means that same-sex couples

will generally pay higher accommodation payments than opposite-sex

couples.

(a) Same-sex

couples generally pay higher accommodation charges

An accommodation charge is a daily amount that is

payable (in addition to daily residential care fees - see section 14.2.5) by

residents who enter permanent care and need a high level of

care.[24]

The amount of the accommodation charge depends

on the value of the resident’s assets at the time of their entry as a

permanent resident to the aged care home. Since more assets are often counted

for same-sex couples they will generally pay a higher accommodation

charge.

(i) More

assets may be counted for same-sex couples

For a same-sex couple, but not an opposite-sex couple,

the following assets will generally be counted:

  • the home in which the same-sex couple lives (this asset

    is usually exempt for an opposite-sex couple)

  • the full value of all other assets owned by the partner

    entering care (only the average of both partners’ combined assets will be

    counted for an opposite-sex

    couple).

Therefore a person in a

same-sex couple will generally pay a higher charge because more of their assets

will be counted.[25]

(ii) The

charges increase if a person has more assets

The maximum accommodation charge of $17.13 a day only

applies if a person entering aged care has relevant assets worth $64 263 or

more.[26]

People

with assets between $33 000 and $64 262 may pay an accommodation charge on a

sliding scale, based on the amount of assets above $33

000.[27]

People with less than $33 000 in assets,

respite residents, concessional residents and residents for whom a hardship

determination is in place, do not have to pay an accommodation

charge.[28]

(iii) Example

comparing accommodation charges for a same-sex and opposite-sex

couple

The following example

illustrates how the assets tests for accommodation payments affect same-sex and

opposite-sex couples differently.

If a person

enters an aged care facility and requires a high level of care, they will be

asked to pay a daily accommodation charge.

Jane is entering an aged care facility requiring a high

level of care. Her partner Michael will remain in their jointly owned family

home.

Sean is entering an aged care facility requiring a high

level of care. His partner Brian will remain in their jointly owned family

home.

Because Jane is a member of an opposite-sex

couple:

  • her family home will not be included in the

    assets test[29]

  • the sum total of all of Jane and

    Michael’s other assets will be

    halved.[30]

As

the following table demonstrates, despite the fact that Jane and Michael, and

Sean and Brian have the same total assets, Sean will be liable for a $17.13

daily accommodation charge and Jane will not.

Assets ($)
Jane (and Michael)
Sean (and Brian)
Home (jointly owned)
$600 000
$600 000
Motor Vehicle (owned by Jane/Sean)
$30 000
$30 000
Savings account (held by Jane/Sean)
$33 500
$33 500
Total asset value
$663 500
$663 500
Assessable assets
$31 750
$363 500
Daily accommodation charge
Nil
$17.13

(b) Same-sex

couples generally pay higher accommodation bonds

An accommodation bond is payable (in addition to daily

residential care fees – see section 14.2.5) by residents who enter

permanent care at a low level of care. An accommodation bond must also be paid

if a resident would like a higher standard of service and

accommodation.[31]

An accommodation bond is like an interest free

loan by the resident to the aged care

facility.[32] Accommodation bonds

can be high amounts. They can cost up to tens of thousands of

dollars.

Under

the Aged Care Act, the facility can deduct a monthly amount from the bond,

called the retention amount, for up to five

years.[33] The facility can also take any interest earned from the accommodation

bond.[34] The balance of the bond is

refunded to the resident on departure, or to their estate on

death.[35]

(i) More

assets are counted for same-sex couples

A person entering aged care cannot be charged a bond

which would leave them with less than $33 000 in

assets.[36] For a member of an

opposite-sex couple the couple must be left with their home plus $66 000 in

other assets. This is because the total value of both partners’ assets

will be halved for opposite-sex couples for the purposes of the assets

test.[37] For a same-sex couple who

owns a home, that home will automatically require them to pay the bond,

irrespective of the value of the other assets of the partner entering care.

(ii) The

bond increases if a person has more assets

There is no fixed formula for calculating an

accommodation bond, but the amount is related to the assets of the person

entering aged care. So a person in a same-sex couple will likely be asked to pay

a higher bond because their home will be counted in the assets test.

(iii) A

same-sex couple’s home may be at higher risk

A person or couple can choose to fund an accommodation

bond in any way that is convenient, either as a lump sum, as a periodic payment,

or as a combination of both.[38]

However, for many people their home is their

primary, or only, asset with sufficient value to fund an accommodation bond.

The risk of having to sell or refinance a home

to pay a bond will be higher for a same-sex couple whose only major asset is

their home. This is because the home will be used to calculate the

accommodation bond and it will be the only asset to support the payment

of that bond.

For an opposite-sex couple in

the same situation, their home will be exempt from the calculation with the

likely result that no bond is payable. Thus, the home of an opposite-sex couple

is much better protected than the home of a same-sex

couple.

The risk to same-sex couples is

described by Jim Woulfe as follows:

[W]here a member of an opposite-sex couple is

incapacitated and requires nursing home care, the means test for an

accommodation bond excludes the family home. However, if one member of a

same-sex couple requires residential nursing care, then that person’s

share of the family home is treated as an asset. What this means for us is that

if either of us were ever incapacitated, we would face the possibility of being

forced to sell our home out from under the other

one.[39]

Rod

Swift from Gay and Lesbian Equality (WA) told the Inquiry:

If one person is being admitted to a nursing home, and the

other person is staying at home, [de facto heterosexual couples and married

couples] don’t have to sell the family home to pay for nursing home bonds.

That’s not the case for a same-sex couple. They [are], even... as tenants

in common... treated as individuals for that law, and would have to sell one

half the house to raise the bond... this is a huge financial burden [for]

same-sex couples.[40]

(iv) Example

comparing accommodation bonds for same-sex and opposite-sex

couples

If Jane (who is a member of an opposite-sex couple)

and Sean (who is a member of a same-sex couple) from the example in section

14.2.4, are both entering an aged care facility and require a low level of care,

they will be asked to make an accommodation payment in the form of a

bond.

The assets of both couples will be

assessed in the same way as illustrated in section 14.2.4.

Jane and

Michael

 
Jane is entering an aged care facility and Michael will

remain in the family home:

Total assets value $ 663 500
Jane’s assessable assets $ 31

750

A person cannot be asked to pay an accommodation bond

if they are left with less than $33 000 in

assets.[41] Therefore, Jane will not

be required to pay an accommodation bond.

Sean and

Brian

 
Sean is entering an aged care facility and Brian will

remain in the family home:

Total assets value $ 663 500
Sean’s assessable assets $ 363

500

There is no maximum accommodation bond an aged care

facility can charge, but a person must be left with $33 000 in assets. Sean

could be asked to pay an accommodation bond of over $100 000 because he has $363

500 in assessable

assets.[42]

14.2.5 The

income distribution between same-sex partners will determine the amount of daily

care fees

All people entering residential aged care facilities

must pay daily care fees in addition to an accommodation payment (unless they

are former prisoners of war).[43]

There are two types of daily care

fees:[44]

  • Every person who enters a residential aged care facility

    must pay a basic daily care fee which is currently set at:

    • $30.77 for

      pensioners receiving a means-tested income support

      payment[45]

    • $38.35 for

      non-pensioners.[46]

  • Part-pensioners and non-pensioners may be asked

    to pay an additional income-tested

    fee.[47]

The

amount of the daily care fee is determined by an income test using the same

rules used for the age and service

pensions.[48] Centrelink and the

Department of Veterans’ Affairs assess the income for the Department of

Health and Ageing for the purposes of determining daily care fees.

As discussed in Chapter 9 on Social Security,

and Chapter 10 on Veterans’ Entitlements, the income test applies

differently to same-sex and opposite-sex couples because a same-sex couple is

treated as two individuals.

(a) Only

the income of the same-sex partner in care will be counted in the income

test

If a person is a member of an opposite-sex couple, the

income of each member of the couple is added together and then divided in

half.[49]

However, a same-sex partner is not recognised

as a ‘partner’ under the Aged Care Act, the Social Security Act

1991 (Cth) or the Veterans’ Entitlements Act 1986 (Cth), so a

same-sex couple is not recognised as a couple for the purposes of the income

test.

This means that only the income of the

same-sex partner in care will be counted in the income test.

(b) Same-sex

and opposite-sex partners will pay different daily care fees

Since same-sex partners are treated as two individuals

rather than as a couple, the amount of the daily care fee paid by a member of a

same-sex couple will depend on the distribution of income between that couple.

For an opposite-sex couple the income distribution between partners is

irrelevant.[50]

Sometimes

a same-sex couple will pay more than an opposite-sex couple and other times less

than an opposite-sex couple.

(i) A

same-sex couple may pay higher daily care fees

A resident entering care who has a higher income than

his or her same-sex partner will be at a disadvantage when compared to an

opposite-sex couple in the same position.

This

is because the person entering care will not be able to combine his or her own

income with that of his or her partner and divide the total amount by two for

the purposes of the income test. The entirety of the income of the person

entering care will be included in the income test and he or she will be charged

a higher rate than a person in an opposite-sex couple.

(ii) A

same-sex couple may pay lower daily care fees

A resident entering care who has a lower income than

his or her same-sex partner will be at an advantage when compared to an

opposite-sex couple in the same position.

This

is because only the lower income of the person entering care will be assessed.

He or she will be charged a lower rate than a member of an opposite-sex couple

in similar circumstances.

14.3 What

other issues face ageing same-sex couples?

There were a number of oral and written submissions to

the Inquiry discussing issues facing ageing same-sex couples. Many of them are

about the extra cost and financial risks associated with aged care.

The following issues do not directly relate to

financial matters. However, they do relate to additional discrimination facing

ageing same-sex couples.[51]

14.3.1 Aged

care policies and codes ignore same-sex couples

A number of submissions to the Inquiry argue that

federal government policies do not acknowledge the existence of older gay,

lesbian, bisexual, trans and intersex (GLBTI)

Australians.[52] For example, the

Australian Medical Association argues that:

[t]here is a need to recognise sexual and gender diversity

within the aged care sector as this lack of recognition means that the health

needs of many older people are not being adequately addressed with culturally

appropriate

care.[53]

The

Gay and Lesbian Rights Lobby (NSW)argues that ‘it is important that aged

care policy and education reflects the diversity in aged care

needs’.[54]

Dr

Jo Harrison, an academic in the field on ageing, states that the User Rights

Principles 1997 under the Aged Care Act make no mention of same-sex

couples.[55] She argues that the

Charter of Resident Rights contained within the User Rights Principles

1997 should make explicit reference to GLBTI

concerns.

A number of submissions note that the

Council on the Ageing and the National Seniors Association have already

recommended changes to the Code of Practice for Residential Aged Care to include

same-sex couples:

Facilities [should] be provided for couples - including

same sex couples - requiring different levels of nursing care to enable them to

remain together and care for each other in the same establishment should they so

choose. Provision of this supportive care to elderly same-sex couples allows

them the same dignity and respect as heterosexual couples in comparable

situations.[56]

Lesbian

and Gay Solidarity (Melbourne) argue that outlawing discrimination on the

grounds of sexuality could be a useful addition to the Code of Ethics for the

aged care industry, which was developed in

2001.[57]

14.3.2 Aged

care facilities may not accept same-sex couples

Many submissions expressed great concern that aged

care facilities will not accept and recognise the legitimacy of same-sex

couples. As one person told the Inquiry:

I have recently started thinking about what will happen if

or when one of us requires some sort of assisted accommodation or nursing home

care and the prospect of that alienation in our elderly years because we will no

longer be recognised as a couple is distressing to say the

least.[58]

The ALSO Foundation told the Inquiry that:

There is an assumption in many aged care facilities that

older people have heterosexual partners or no partner at all and there is

usually no precedence for same-sex couples to cohabit at such facilities. While

it would be extremely traumatic for elderly GLBTI [gay, lesbian, bisexual,

transgender and intersex] people to live without their long-term partners, their

vulnerability at this time due to a lack of viable alternatives will often mean

they will not complain about discriminatory

practices.[59]

Other

concerns regarding access to aged care include:

  • overt discrimination experienced by GLBTI people

    accessing aged care[60]

  • difficulties for same-sex couples seeking to

    access shared space within aged care

    facilities[61]

  • no acknowledgement of a visiting

    partner[62]

  • no staff training to ensure recognition and

    respect for GLBTI residents and their

    relationships[63]

  • the failure of official forms (for registration

    etc) to recognise GLBTI

    relationships[64]

  • the invisibility of older GLBTI

    people[65]

  • potential discrimination when care is provided at

    home.[66]

14.4 Does

aged care legislation breach human rights?

The definitions of ‘partner’ and

‘close relation’ in the Aged Care Act exclude a same-sex partner.

This means that the assets tests apply differently to same-sex couples than to

opposite-sex couples. In many circumstances a same-sex couple will pay more for

residential aged care than an opposite-sex couple in the same

position.

Where the narrow definitions place

same-sex couples at a financial disadvantage to opposite-sex couples in the same

position, there will be a breach of article 26 of the International Covenant

on Civil and Political Rights, which prohibits discrimination in any law.

Chapter 3 on Human Rights Protections explains

Australia’s human rights obligations to same-sex couples in more detail.

14.5 How

should aged care legislation be amended to avoid future

breaches?

It is clear that same-sex couples are treated

differently to opposite-sex couples when determining the fees for residential

aged care. And in most cases, same-sex couples seeking to access aged care will

pay higher fees than opposite-sex couples.

The

Inquiry recommends amending aged care legislation to avoid future discrimination

against same-sex couples seeking to access aged

care.

The following sections summarise the

causes of the problem and how to fix them.

14.5.1 Narrow

definitions are the main cause of discrimination

Same-sex couples are generally worse off than

opposite-sex couples because the definitions in aged care legislation fail to

include same-sex couples and families.

The

primary cause of the discrimination lies in the definition of ‘member of a

couple’ in the Aged Care Act 1997 (Cth). That definition does not

consider a same-sex partner to be a member of a

couple.

The definition of ‘close

relation’ is also a problem because it does not appear to include the

children of a lesbian co-mother or gay co-father.

The definition of ‘dependent

child’ may include the child of a lesbian co-mother and gay co-father as

well as the child of the birth parents. But in the absence of parenting

presumptions or adoption, the lesbian co-mother or gay co-father may need to get

a parenting order to prove the relationship. This can be expensive and

complicated.

14.5.2 The

solution is to amend the definitions and clearly recognise both same-sex

parents

Since the main problem with the Aged Care Act is the

narrow scope of legislative definitions, the solution is to amend those

definitions so they are inclusive, rather than exclusive, of same-sex couples

and families.

Chapter 4 on Recognising

Relationships presents two alternative approaches to amending federal law to

remove discrimination against same-sex couples.

The Inquiry’s preferred approach for

bringing equality to same-sex couples is to:

  • retain the current terminology used in federal

    legislation (for example retain the term ‘member of a couple’ in the

    Aged Care Act)

  • redefine the terms in the legislation to include same-sex

    couples (for example, redefine ‘member of a couple’ to include a

    person in a ‘de facto relationship’)

  • insert a new definition of ‘de facto

    relationship’ which includes same-sex

    couples.

Chapter 5 on Recognising

Children sets out how to better protect the rights of both the children of

same-sex couples and the parents of those children.

The Inquiry recommends that the federal

government implement parenting presumptions in favour of a lesbian co-mother of

a child conceived through assisted reproductive technology (ART). This would

mean that a lesbian co-mother of an ART child would automatically be a

‘close relation’ of the child (in the same way as the father in an

opposite-sex couple would be a ‘close

relation’).

Chapter 5 also suggests that

it should be easier for a lesbian co-mother or gay co-father to adopt a child.

Again, if this occurred then they would also be assumed as parents under the

legislation and the child would automatically qualify as a ‘close

relation’ or ‘dependent

child’.

Finally, Chapter 5 suggests that

federal legislation should clearly recognise the status of a person who has a

parenting order from the Family Court of Australia. This would mean that the

child of a gay co-father or lesbian co-mother with parenting orders would more

clearly qualify as a ‘dependent child’ under the Aged Care Act.

The following list sets out the definitions

which would need to be amended according to these suggested approaches.

The Inquiry notes that if the government were

to adopt the alternative approach set out in Chapter 4 on Recognising

Relationships then different amendments may be required.

14.5.3 A

list of legislation to be amended

The Inquiry recommends amendments to the following

legislation discussed in this

chapter:

Aged

Care Act 1997 (Cth)

‘close relation’ (s 44.11(1) – no need

to amend if a lesbian co-mother and gay co-father and their children may be

recognised through reformed parenting presumptions or adoption laws)

‘de facto relationship’ (insert new

definition)

‘dependent child’ (s 44.11(2) –amend to

clarify the role of a parenting order; otherwise no need to amend if the child

of a lesbian co-mother or gay co-father may also be recognised through reformed

parenting presumptions or adoption laws)

‘member of a couple’ (amend s 44.11(1) to

replace ‘marriage-like relationship’ with ‘de facto

relationship’)

‘partner’ (s 44.11(1) – no need to amend

if ‘member of a couple’ is amended)

‘young person’ (s 44.11(3) – no need to

amend)


Endnotes

[1] Australian Government, Department of Health and Ageing, 5 Steps to Entry into

Residential Aged Care, June 2006,

p26, http://www.health.gov.au/internet/wcms/

publishing.nsf/Content/ageing-rescare-resentry_a.htm-copy2,

viewed 14 March 2007.
[2] Australian Government, Department of Health and Ageing, Aged Care Australia, Help with aged care homes, updated 03 August 2006,

http://www.agedcareaustralia.gov.au/internet/agedcare/publishing.nsf/Content/

Accommodation+payments#PaymentAssessed,

viewed 5 April

2007.
[3] Aged Care Act 1997 (Cth), s

44.10(3).
[4] Relevant assets include accounts held with banks, building societies, credit

unions, bonds, shares, superannuation assets from which lump sums can be drawn,

real estate, businesses, farms and surrender value of life insurance policies: Residential Care Subsidy Principles 1997, s 21.15. The Residential

Care Subsidy Principles 1997 were made under the Aged Care Act 1997 (Cth), s

96(1).
[5] ‘Partner’ and ‘member of a

couple’ include a person who lives with another person ‘in a

marriage-like relationship, although not legally married to the other

person’: Aged Care Act 1997 (Cth), ss 44.11(1), 44.10(2)(a).
[6] Aged Care Act 1997 (Cth), s

44.10(2)(a).
[7] Aged Care Act 1997 (Cth), s

44.10(2)(c).
[8] Aged Care Act 1997 (Cth), s 44.10(2)(b).
[9] Aged Care Act 1997 (Cth), s

44.11(1).
[10] Aged Care Act 1997 (Cth), s

44.11(1).
[11] Commonwealth of Australia v HREOC & Muller (1998) EOC

92-931.
[12] Aged Care Act 1997 (Cth), s

44.10(2)(b).
[13] Aged Care Act 1997 (Cth), s 44.10(2)(b). See also Australian Government,

Department of Health and Ageing, The Residential Care Manual, April 2005,

para 8.3.2.5,

http://www6.health.gov.au/internet/wcms/publishing.nsf/Content

/

ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx109.htm,

viewed 14 March 2007. Under the Aged Care Act 1997 (Cth), sch 1, an

income support payment includes a social security benefit, job search allowance,

a social security pension; a youth training allowance under the Social

Security Act 1991 (Cth), s 23(1); a service pension or income support

supplement under the Veterans’ Entitlement Act 1986 (Cth). A social

security pension includes a carer payment: Social Security Act 1991 (Cth), s

23(1).
[14] See Chapter 9 on Social

Security.
[15] Aged Care Act 1997 (Cth), s

44.10(2)(a).
[16] Aged Care Act 1997 (Cth), s

44.11(2)(a).
[17] Aged Care Act 1997 (Cth), s

44.11(2)(b).
[18] Aged Care Act 1997 (Cth), s

44.11(3).
[19] For an explanation of these terms see the Glossary of

Terms.
[20] Aged Care Act 1997 (Cth), s 44.11(1). The Residential Care Subsidy

Principles do not specify any other category of person as a ‘close

relation’: Residential Care Subsidy Principles 1997 (Cth).
[21] Aged Care Act 1997 (Cth), s

44.10(2)(c).
[22] Assets include (but are not limited to): accounts, interest-bearing deposits,

fixed deposits, bonds, debentures, shares, investments in property trusts, real

estate, businesses, farms, loans, motor vehicles, boats, caravans, surrender

value of life insurance policies, investment collections, superannuation from

which lump sums can be withdrawn, household contents and personal effects.

Australian Government Department of Health and Ageing, The Residential Care

Manual, April 2005, para 6.3.5.1.5 at:

http://www6.health.gov.au/internet/wcms/publishing.nsf/Content/

ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx107.htm,

viewed 21 March

2007.
[23] Aged Care Act 1997 (Cth), s

44.10(3).
[24] Australian Government, Department of Health and Ageing, The Residential Care

Manual, April 2005, para 8.3.1.1,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx109.htm,

viewed 14 March 2006. This does not apply to a person who accesses care on an

‘extra services’ basis. Instead they may be asked to pay an

accommodation bond, regardless of the level of care they require. An

‘extra services’ place provides a significantly higher standard of

accommodation and services to residents, but not a higher standard of care, para

14.2,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx115.htm,

viewed 14 March

2007.
[25] See ACON, Submission 281; Australian Coalition for Equality, Submission 228;

Tasmanian Gay and Lesbian Rights Group, Submission 233; ALSO Foundation,

Submission 307b; Action Reform Change Queensland and Queensland AIDS Council,

Submission 270a; Gay and Lesbian Rights Lobby (NSW), Submission

333.
[26] Australian Government, Department of Health and Ageing, The accommodation

charge, September 2006 – March 2007,

http://www.health.gov.au/internet/

wcms/publishing.nsf/Content/ageing-publicat-qcoa-15info.htm,

viewed 5 April

2007.
[27] Australian Government, Department of Health and Ageing, The accommodation

charge, September 2006 – March 2007,

http://www.health.gov.au/internet/

wcms/publishing.nsf/Content/ageing-publicat-qcoa-15info.htm,

viewed 5 April

2007.
[28] Australian Government, Department of Health and Ageing, The Residential Care

Manual, April 2005, para 8.3.3.2,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx109.htm,

viewed 19 February 2006; Australian Government, Department of Health and

Ageing, The accommodation charge, September 2006 – March 2007,

http://www.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-publicat-qcoa-15info.htm,

viewed 14 March 2007. The Secretary to the Department of Health Ageing may

make a financial hardship determination in favour of someone if the Secretary is

satisfied that paying the maximum accommodation charge would cause the care

recipient financial hardship: Aged Care Act 1997 (Cth), s

44.31(1).
[29] Aged Care Act 1997 (Cth), s

44.10(2).
[30] Aged Care Act 1997 (Cth), s

44.10(3).
[31] Australian Government, Department of Health and Ageing, 5 Steps to Entry into

Residential Aged Care, p5,

http://www.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-rescare-resentry_a.htm-copy2,

viewed 14 March 2007. See also Australian Government, Department of Health and

Ageing, The Residential Care Manual, April 2005, para 14.2,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx109.htm,

viewed 14 March

2007.
[32] The facility must use income from the loan to improve its building standards,

and the quality and range of its aged care services. Australian Government,

Department of Health and Ageing, 5 Steps to Entry into Residential Aged

Care, p23,

http://www.health.gov.au/internet/wcms/publishing.nsf/

Content/5D86020729E69196CA256F1900106532/$File/06working.pdf,

viewed 14 March

2007.
[33] The maximum retention amount is currently $273.50 per month: Australian

Government, Department of Health and Ageing, Accommodation bonds,

September 2006 – March 2007,

http://www.health.gov.au/internet/wcms/publishing.nsf/

content/ageing-publicat-qcoa-16info.htm,

viewed 14 March

2007.
[34] The maximum permissible interest rate which can be charged by the Australian

Government Department of Health and Ageing is announced quarterly. From January

1 2007 to 31 March 2007 the maximum permissible interest rate was 10.37%:

Australian Government, Department of Health and Ageing, Maximum Bond Interest

Rate,

http://www.aodgp.gov.au/internet/wcms/publishing.nsf/Content/

ageing-finance-gic.htm-copy2,

viewed 14 March

2007.
[35] Australian Government, Department of Health and Ageing, The Residential Care

Manual, April 2005, para 8.3.1.2,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx109.htm,

viewed 14 March

2007.
[36] Australian Government, Department of Health and Ageing, Accommodation

bonds, September 2006 – March 2007,

http://www.health.gov.au/internet/wcms/publishing.nsf/content/

ageing-publicat-qcoa-16info.htm,

viewed 5 April

2007.
[37] Aged Care Act 1997 (Cth), s

44.10(3).
[38] Australian Government Department of Health and Ageing, The Residential Care

Manual, April 2005, para 8.3.1.2.

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx109.htm viewed 20 March

2007.
[39] Jim Woulfe, Opening Statement, Sydney Hearing, 26 July 2006. See also Jim

Woulfe, Submission 50; Jennifer Cahalan, Submission

239.
[40] Rod Swift, Perth Hearing, 9 August 2006. See also Jennifer Cahalan, Submission

239.
[41] Australian Government, Department of Health and Ageing, Accommodation

bonds, September 2006 – March 2007,

http://www.health.gov.au/internet/wcms/publishing.nsf/

content/ageing-publicat-qcoa-16info.htm,

viewed 5 April

2007.
[42] Australian Government, Department of Health and Ageing, The Residential Care

Manual, April 2005, para 8.3.3.2,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx109.htm,

viewed 19 February

2006.
[43] Australian Government, Department of Health and Ageing, The Residential Care

Manual, April 2005, para 7.3.2.2,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx108.htm,

viewed 9 March 2007.
[44] Australian Government, Department of Health and Ageing, 5 Steps to Entry into

Residential Aged Care, p18,

http://www.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-rescare-resentry_a.htm-copy2,

viewed 14 March

2007.
[45] Australian Government, Department of Health and

Ageing, Residential care fees for full pensioners,

http://www.health.gov.au/internet/wcms/Publishing.nsf/

Content/ageing-publicat-qcoa-12info.htm,

viewed 5 April 2007.
[46] Australian Government, Department of Health and Ageing, Residential care fees

for self funded retirees,

http://www.health.gov.au/internet/wcms/

publishing.nsf/Content/ageing-publicat-qcoa-14info.htm,

viewed 5 April 2007.
[47] Australian Government, Department of Health and Ageing, 5 Steps to Entry into

Residential Aged Care, p18,

http://www.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-rescare-resentry_a.htm-copy2,

viewed 4 October 2006.
[48] Australian Government, Department of Health and Ageing, The Residential Care Manual, April 2005, para 7.3.4.2,

http://www6.health.gov.au/internet/wcms/publishing.nsf/

Content/ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx108.htm,

viewed 14 March

2007.
[49] Aged Care Act 1997 (Cth), s 44.24, adopting the definition in Social

Security Act (Cth) s

1064-E2.
[50] A single person under the income test must pay $0.25 for every dollar he or she

earns over the single person income threshold ($64). Additional income-tested

income fees are capped at $52.56. A person who is a member of a couple pays

$0.25 for every dollar of a couple’s combined non-pension income over the

income test free area for a member of a couple ($114 per week), divided by two.

Australian Government, Department of Health and Ageing, The Residential Care

Manual, April 2005, para 7.3.4.1,

http://www6.health.gov.au/internet/wcms/publishing.nsf/Content/

ageing-manuals-rcm-rcmindx1.htm~ageing-manuals-rcm-rcmindx108.htm,

viewed 5 April

2007.
[51] See also ACON, Submission 281; Australian Medical Association, Submission 314;

Dr Jo Harrison, Submission

183.
[52] ACON, Submission 281; ALSO Foundation, Submission

307b.
[53] Australian Medical Association, Submission 314.
[54] Gay and Lesbian Rights Lobby (NSW), Submission 333.
[55] Dr Jo Harrison, Adelaide Hearing, 28 August

2006.
[56] Australian Coalition for Equality, Submission 228. See also Tasmanian Gay and

Lesbian Rights Group, Submission

233.
[57] Lesbian and Gay Solidarity (Melbourne), Submission

89a.
[58] Name Withheld, Submission

138.
[59] ALSO Foundation, Submission 307b. See also, Blue Mountains Forum, 16 November 2006; Dr

Jo Harrison, Adelaide Hearing, 28 August 2006; Murray Bridge Forum, 29 August

2006.
[60] Dr Jo Harrison, Adelaide Hearing, 28 August

2006.
[61] Gay and Lesbian Rights Lobby (NSW), Submission

333.