Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A reference in this Act to the principal home of a person includes a reference to:
(a) if the principal home is a dwelling - house--the land adjacent to the dwelling - house to the extent that:
(i) the land is held on the same title document as the land on which the dwelling - house is located; and
(ii) the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land; or
(b) if the principal home is a flat or home unit--a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.
(2) The Commission may determine that land is to be treated, for the purpose of subparagraph (1)(a)(i), as if it were held on the same title document as other land if any of the following apply:
(a) the dwelling - house is located on both blocks of land;
(b) the dwelling - house is located on one of the blocks of land but that block and the other block, taken together, are a place, or are part of a place, that is protected under a law of the Commonwealth, or of a State or Territory, because of its natural, historic or indigenous heritage;
(c) the alienation of one of the blocks of land without the other would seriously undermine the function of the house as a dwelling.
Note: A mere loss of amenity, such as the loss of a swimming pool, garden, tennis court or view, would not seriously undermine the function of a house as a dwelling.
Private land use test
(3) The private land use test is satisfied in relation to land if:
(a) the area of land, together with the area of the ground floor of the dwelling - house, is not more than 2 hectares; and
(b) the land is used primarily for private or domestic purposes in association with the dwelling - house.
To whom does the extended land use test apply?
(4) The extended land use test applies to a person in relation to land adjacent to the dwelling - house if:
(a) the person has reached the qualifying age; and
(b) the person is eligible to receive a service pension, income support supplement or a veteran payment and that pension, supplement or payment is payable to the person; and
(c) the dwelling - house has been the person's principal home for 20 years or more continuously.
Note: For qualifying age see section 5Q.
(5) Where a person (the first person ) to whom the extended land use test applies in relation to land adjacent to the dwelling - house in which the person lives is a member of a couple:
(a) the extended land use test applies to the first person's partner (the second person ); and
(b) the extended land use test continues to apply to the second person if the first person and the second person cease to be members of a couple for any reason, provided the dwelling - house continues to be the second person's principal home.
Extended land use test
(6) The extended land use test is satisfied in relation to land if:
(a) the area of the land, together with the area of the ground floor of the dwelling - house, is more than 2 hectares; and
(b) the Commission determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.
(7) In determining whether a person is making effective use of the land, the Commission is to take into account the following matters:
(a) where the land is located;
(b) the size of the block of land;
(c) the person's family situation;
(d) the person's health;
(e) whether the land contains a dwelling - house occupied by a family member of the person, or a child of a family member of the person, receiving an income support payment (within the meaning of the Social Security Act 1991 );
(f) whether the land is being used to support:
(i) a family member of the person; or
(ii) a child of a family member of the person;
(g) any current commercial use of the land;
(h) any potential commercial use of the land;
(i) whether the person's capacity to make commercial use of the land is diminished because the person, or the person's partner, has responsibility for the care of another person;
(j) whether the block of land is an amalgamation of 2 or more blocks and, if so:
(i) when the amalgamation occurred; and
(ii) whether the amalgamation reduced the potential for the land to produce personal income or to support the person;
(k) environmental issues relating to the land;
(l) any other matter that the Commission considers relevant.
Effect of absences from principal home
(8) A residence of a person is taken to be the person's principal home during:
(a) if the Commission is satisfied that the residence was previously the person's principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident--any period during which:
(i) the person is accruing a liability to pay an accommodation charge (or would be accruing such a liability, assuming that no sanctions under Part 7B of the Aged Care Quality and Safety Commission Act 2018 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person's partner, is earning, deriving or receiving rent for the residence from another person; and
(b) if the Commission is satisfied that the residence was previously the person's principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident--any period during which:
(i) the person is liable to pay all or some of an accommodation bond by periodic payments (or would be liable to do so, assuming that no sanctions under Part 7B of the Aged Care Quality and Safety Commission Act 2018 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person's partner, is earning, deriving or receiving rent for the residence from another person; and
(ba) if the Commission is satisfied that the residence was previously the person's principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident--any period during which:
(i) the person is liable to pay all or some of a daily accommodation payment or a daily accommodation contribution (or would be liable to do so, assuming that no sanctions under Part 7B of the Aged Care Quality and Safety Commission Act 2018 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person's partner, is earning, deriving or receiving rent for the residence from another person; and
(c) any period during which the residence is, because of paragraph (a), (b) or (ba), the principal home of the person's partner.
Note 1: Accommodation charge and accommodation bond have the same meaning as in the Aged Care Act 1997 : see subsection 5L(1).
Note 2: For rent , see subsection 5N(2). For in a care situation , see subsection 5NC(2). For aged care resident , see subsection 5NC(5).
Note 3: This subsection is not meant to imply that a person may have more than one principal home at the same time.
Note 4: A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care (Transitional Provisions) Act 1997 . For rules about accommodation bonds, see Division 57 of that Act.
(8A) Subsection (8) does not apply in relation to a person who first enters a residential care service or a flexible care service on or after the commencement of this subsection.
(8B) Subsection (8) does not apply, and never again applies, in relation to a person if:
(a) the person enters a residential care service or a flexible care service on or after the commencement of this subsection; and
(b) that entry occurs more than 28 days after the day the person last ceased being provided with residential care or flexible care through a residential care service or a flexible care service (other than because the person was on leave).
(8C) An expression used in subsection (8A) or (8B) and in the Aged Care Act 1997 has the same meaning in that subsection as in that Act.
(9) A residence of a person is to be taken to continue to be the person's principal home during:
(a) any period (not exceeding 12 months or any longer period determined under subsection (9A) or (9B)) during which the person is temporarily absent from the residence; and
(b) if the person is in a care situation or is an aged care resident--the period of 2 years beginning when the person started to be in a care situation or an aged care resident; and
(c) any period during which:
(i) the person is in a care situation or is an aged care resident; and
(ii) the residence is, or because of paragraph (a) or (b) continues to be, the principal home of the person's partner or non - illness separated spouse; and
(d) if:
(i) the person is in a care situation or is an aged care resident; and
(ii) while paragraph (c) applies, the person's partner or non - illness separated spouse dies while in a care situation or while an aged care resident; and
(iii) the person's partner or non - illness separated spouse had been in a care situation or an aged care resident for less than 2 years;
the period of 2 years beginning at the time the person's partner or non - illness separated spouse started to be in a care situation or an aged care resident; and
(e) where:
(i) the person is in a care situation or is an aged care resident; and
(ii) while paragraph (c) applies, the person's partner or non - illness separated spouse dies (but not while in a care situation or while an aged care resident);
the period of 2 years from that death; and
(f) any period of up to 2 years while the person is absent from the residence and is personally providing community - based care for another person.
Note 1: For in a care situation , see subsection 5NC(2).
Note 2: For aged care resident , see subsection 5NC(5).
(9A) For the purposes of paragraph (9)(a), the Commission may determine, in writing, a period of up to 24 months if:
(a) a person's principal home is lost or damaged (including, for example, by a natural disaster); and
(b) the loss or damage was not wilfully caused by the person; and
(c) the person is making reasonable attempts, as a result of the loss or damage, to:
(i) rebuild or repair the principal home; or
(ii) sell the principal home in order to purchase or build another residence that is to be the person's principal home; or
(iii) purchase or build another residence that is to be the person's principal home; and
(d) the person has made those attempts within a reasonable period after the loss or damage; and
(e) the person has experienced delays beyond his or her control in:
(i) rebuilding, repairing or selling the principal home; or
(ii) purchasing or building the other residence.
(9B) For the purposes of paragraph (9)(a), the Commission may, in relation to a person and a residence of the person, determine, in writing, a longer period if:
(a) the Commission is satisfied that the person is temporarily absent from that residence because the person is absent from Australia; and
(b) the Commission is satisfied that the person's absence from Australia is temporary; and
(c) the Commission is satisfied that the person is unable to return to Australia before the end of the following period because of circumstances beyond the person's control:
(i) the 12 months mentioned in paragraph (9)(a), unless subparagraph (ii) of this paragraph applies;
(ii) if the Commission has determined a period under subsection (9A) in relation to the person and that residence--that period.
(10) If a person has a right or interest in the person's principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Commission is satisfied that the right or interest does not give the person reasonable security of tenure in the home.
(11) In this section:
"title document" , in relation to land, means:
(a) in relation to land title which is registered under a Torrens system of registration--the certificate of title for the land; or
(b) in any other case--the last instrument by which title to the land was conveyed.
Application of the Legislation Act 2003
(12) A determination under subsection (2) or paragraph (6)(b) is not a legislative instrument.