1. An instance of the Applicant's unredacted name in paragraph 3 has been replaced with the assigned pseudonym.

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Respondent: Secretary, Department of Health, Disability and Ageing

Decision: The application is dismissed pursuant to section 101 of the Administrative Review Tribunal Act 2024/

Order: Pursuant to section 70(1) of the Administrative Review Tribunal Act 2024, information tending to reveal the identity of the applicant is not to be published, and to that end a pseudonym is to be used in place of the name of the applicant.

On 10 December 2025, the Tribunal ordered pursuant to section 70(1) of the Administrative Review Tribunal Act 2024 that a pseudonym is to be used in place of the name of the applicant. This is to replicate the effect of subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999, which do not apply to these proceedings, but where it is nonetheless desirable to protect the privacy of the applicant.

AGED CARE - interlocutory application for dismissal - decision pertaining to priority for home care package - assessed as medium priority - applicant seeks assessment as high priority - applicant assigned home care package while review pending - application for review now lacking in substance - accommodation payment - estimate of likely costs incorrect and contradictory - means tested amount - subsidies provided by Commonwealth to providers of aged care - accommodation supplement - maximum accommodation supplement amount - entry (into aged care) - jurisdiction of Tribunal to determine value of persons assets - method of determining value of person's assets - Subsidy Principles- certain provisions of social security law do not apply - home exemption cap

Aged Care Act 1997

Administrative Review Tribunal Act 2024

Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 [97]

Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963; (2007) 99 ALD 106 [24]

1. Ms DJTC was approved for a Level 3 Home Care Package with medium priority on 18 October 2024. The reference to 'medium priority' is a reference to a decision under section 22-2A of the Aged Care Act 1997[1] (the Act), which requires the Secretary to determine a person's priority for home care services upon approving a person as a recipient of home care.
2. Essentially, decisions of this nature regulate the National Prioritisation Queue, intended to provide a more equitable and flexible way of distributing Home Care Packages. In practice, the difference between being assigned medium priority as against high priority is that a person who has been approved for a Home Care Package as a medium priority will need to wait longer than a person assigned high priority before they are assigned the Home Care Package and can access the services available through the package. By way of context, the 'myagedcare.gov.au' website lists the wait times for medium priority as 8 to 9 months, and high priority as 1.5 to 2.5 months as at the date of this decision.
3. A decision as to priority is a reviewable decision. On 14 November 2024, Ms DJTC requested review of the decision as to her priority. On 11 February 2025, a delegate of the Respondent confirmed the decision pursuant to section 85-5 of the Act. This decision is termed a 'reconsideration'. Reconsideration decisions are amenable to review in the Tribunal: section 85-8 of the Act.
4. Ms DJTC applied to the Tribunal for review on 26 February 2025.
5. Ms DJTC's review proceedings in the Tribunal have not been dealt with substantively in the ten months since the application was lodged. The matter appears to have been diverted to a conference process that ultimately did not progress the matter.
6. Some seven months after Ms DJTC applied for review in the Tribunal, on 1 October 2025, she reached the front of the 'queue' (as it were) on the basis of her assigned medium priority, and the funding in the Level 3 home care package allowing her to receive additional services became available to her.
7. On 28 October 2025, the Respondent applied to the Tribunal to dismiss the application pursuant to section 101 of the Administrative Review Tribunal Act 2024 (the ART Act), arguing that no legitimate purpose can now be achieved by continuing with the proceedings.
8. Ms DJTC opposes the application, seeking that the Tribunal make a substantive decision so that a record might come into existence of her grievances with the process and delay in being able to access the higher level of care, reflective of the adverse impact she feels it has had on her.
9. The ART Act contains procedural provisions that provide for applications to be dismissed at any time if the Tribunal is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance, or has no reasonable prospect of success[2]. The terminology used in this provision is in some ways technical, in that it has legal meaning in particular contexts that may not equate to the use of those words in ordinary language. In this way, using these terms, particularly in the circumstances of cases like this, may cause a degree of offence and carry connotations not directly intended.
10. Ms DJTC's grievance with delays associated with accessing her home care package, particularly given her state of health and challenges with mobility, in no way can be described as engaging with issues that are frivolous, vexatious, misconceived or lacking in substance in general. However, there is a body of legal authority that recognises that where circumstances have developed where no legitimate purpose can be achieved by continuing with proceedings,[3] or where no decision that the Tribunal can make would be of any practical benefit to an applicant[4] continuing the proceedings might be described in that context as vexatious or frivolous.
11. It should be noted that Fearnley recognises that a proceeding might not be vexatious when instituted, but becomes vexatious once no legitimate purpose can be achieved, and considered the issue by reference to the question of whether the applicant in that case continued to have an interest or standing to pursue the application.
12. In Ms DJTC's case, and putting to one side any issue associated with standing, it is now quite clear that no legitimate purpose can be achieved by continuing with the review, nor could the Tribunal make a decision of any practical benefit to Ms DJTC. This is the result of the unusual nature of the decision under review which is only a decision as to priority in delivery (rather than entitlement per se), and the passage of time to the point that the benefit has now been delivered. As discussed at the hearing, the decision under review is akin to the placement of Ms DJTC in a queue, and she has since reached the front of the queue and obtained the benefit she was entitled to. There is now simply no purpose in deciding again where in the queue she should have been.
13. Even having regard to the decisions in Fearnley and Currey, I remain uncomfortable with the labels of 'vexatious', 'frivolous' or indeed 'misconceived' given what the Tribunal would have been dealing with but for Ms DJTC subsequently receiving her Home Care Package. Ms DJTC's application and grievance at the time she applied to the Tribunal was none of those things. I consider that 'lacking in substance' is a better descriptor of the situation the review proceedings now find themselves in, and this is only because the passage of time and the delivery of the benefit to Ms DJTC has now taken the substance out of the proceedings.
14. Ms DJTC emphasised in her written response to the application for dismissal and in the hearing that she feels the lack of assistance has led to adverse consequences for her which she has detailed, and feels that her engagement with "MyAgedCare" has been unsatisfactory. She is concerned that if she can't proceed with Tribunal proceedings, she will not be able to have her complaints addressed in the future. She was motivated to persevere with her application in the hope that others will not suffer as she perceives she has.
15. Ms DJTC's position assumes that she would have been successful in the proceedings. No part of my review of the evidence for the purpose of the interlocutory proceedings has been focussed on the merits of Ms DJTC's case. However, it must be observed that while the policy framework behind the allocation of priority is expressed very broadly, the policy presumes that only a small percentage of people who are eligible for a Home Care Package will be approved as high priority, with language around immediate risk to personal safety or immediate risk of entry into residential care as factors to consider in allocating a high priority. On the face of it, the policy which the Tribunal would have regard to sets a high bar.
16. Any decision that the Tribunal might ultimately make on the merits of Ms DJTC's case would not serve in the way Ms DJTC intends, as each assessment as to priority will inevitably turn on the facts of each case. Any systemic issues associated with the assessment of priority or the operation of the "MyAgedCare" system would typically be addressed by the Tribunal only as an adjunct to the Tribunal's core function of reviewing the decision that Ms DJTC is (or was) affected by. Although I acknowledge Ms DJTC's grievance and motivation for continuing, I do not consider those matters amount to a legitimate purpose having regard to the role of the Tribunal, or operate to retain substance in Ms DJTC's application now she has received her benefit. Ms DJTC's concerns as to wider and systemic operation of the aged care system and the "MyAgedCare" process are best addressed to the Commonwealth Ombudsman or her local Member of the Parliament (Commonwealth).

1. I am satisfied that Ms DJTC's application now lacks substance in the sense described in these reasons, emphasising that it did not have that characteristic when Ms DJTC commenced the proceedings. I will therefore dismiss the application pursuant to section 101 of the ART Act.

[1] The Act has been repealed and replaced by the Aged Care Act 2024, but application provisions provide that the old Act continues to apply to reviews of decisions made prior to the repeal.

[2] Section 101(1)(a) and (b) of the ART Act

[3] Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 [97]

[4] Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963; (2007) 99 ALD 106 [24]