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Do payments for the provision of domestic services qualify as medical expenses for the purposes of the medical expenses tax offset under section 159P of the Income Tax Assessment Act 1936 (ITAA 1936)?

No. Payments for domestic services do not qualify as medical expenses for the purposes of the medical expenses tax offset under section 159P of the ITAA 1936, as the services were not rendered 'as an attendant of a person' for the purposes of paragraph 159P(4)(h) of the ITAA 1936.

The taxpayer's spouse, an Australian resident, is ill and visually impaired.

The taxpayer's spouse requires assistance to meet some of their needs to enable them to continue living at home. They are not however confined to a bed or invalid chair.

The taxpayer pays an entity for the provision of persons to assist their spouse to assist with some domestic duties.

These people provide house cleaning, home and garden maintenance services.

The taxpayer's spouse does not require or receive any assistance from the attendants in respect of their personal care (eg bathing, showering, personal hygiene).

A medical expense tax offset is available to a taxpayer under section 159P of the ITAA 1936, where the taxpayer incurs medical expenses for themselves or a dependant who is an Australian resident.

The term 'medical expenses' is defined in subsection 159P(4) of the ITAA 1936. Paragraph (h) of that definition includes payments 'as remuneration of a person for services rendered by him as an attendant of a person who is blind or permanently confined to a bed or an invalid chair'. It is not necessary that the payments be made direct to the person performing the services. They can, for example, be made to a company who employs the person who provides the services (ATOID 2002/934).

The term 'attendant' is not defined in income tax legislation. Accordingly, it is necessary to consider the ordinary meaning of the term.

The Australian Oxford English Dictionary defines 'attendant' as 'a person employed to wait on others or provide a service.'

The ordinary meaning of the term could arguably include a person who is employed to provide any service. However, the scope of the term 'attendant' must be read within the context of paragraph 159P(4)(h) of the ITAA 1936, which provides that the payment must relate to the remuneration of a person for the services they provide 'as an attendant of a person'. The requirement that the services be provided as an attendant 'of a person' necessitates that the services provided by the attendant (to a person who is blind or permanently confined to a bed or an invalid chair) are primarily to assist the person with their personal care, for example bathing, washing, dressing and feeding.

Accordingly, payments for services that are primarily domestic services (such as house cleaning, home and garden maintenance services) would fall outside the scope of paragraph 159P(4)(h) of the ITAA 1936. Whilst the need to employ a person to provide assistance with house cleaning, and home and garden maintenance may be necessitated by the taxpayer's medical condition, paragraph 159P(4)(h) of the ITAA 1936 does not extend to cover payments for the provision of services that are primarily domestic services.

The taxpayer pays an entity for the provision of attendants to assist their spouse with house cleaning, and home and garden maintenance services. The attendants do not assist the taxpayer's spouse with their personal care needs.

Accordingly, the payments made by the taxpayer to an entity in respect of the provision of services that are solely domestic services do not qualify as medical expenses for the purposes of the medical expenses tax offset under section 159P of the ITAA 1936.

[Note : In the circumstances of this case it was not necessary to consider whether the taxpayer's spouse was 'blind' for the purposes of paragraph 159P(4)(h) of the ITAA 1936).]