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Does an establishment that is approved under the Aged Care Act 1997 to provide residential aged care services satisfy the meaning of a 'home for aged persons' for the purposes of paragraph 53(4)(d) of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?

Yes. An establishment that is approved under the Aged Care Act to provide residential aged care services is a 'home for aged persons' for the purposes of paragraph 53(4)(d) of the EGCSA.

An entity provides accommodation and care to individuals at an establishment. The entity is an approved provider of residential aged care under the Aged Care Act.

The establishment is approved under the Aged Care Act for use in the provision of the accommodation and care.

Section 53 of the EGCSA provides that, subject to the conditions and restrictions specified in the Energy Grants (Credits) Scheme Regulations 2003, an entity is entitled to an off-road credit if they purchase or import into Australia off-road diesel fuel for a use that qualifies.

Subsection 53(4) of the EGCSA includes the following qualifying use: (a) .... (b) use at residential premises to generate electricity for use in: (i) providing food and drink for; or (ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or (iii) meeting other domestic requirements of residents of the premises (c) use at a hospital or nursing home or at any other institution providing medical or nursing care (d) use at a home for aged persons.

A 'home for aged persons' is specifically excluded from the definition of a 'residential premises' in section 4 of the EGCSA. When the term 'home' is considered alongside the terms 'hospital', 'nursing home' and 'any other institution', it is clear that the term 'home for aged persons' is intended to apply to a facility that is other than a private residence.

In Bannerblade Pty Ltd v. Commissioner of Taxation [2008] AATA 259, the Tribunal considered whether a retirement village constituted a 'home for aged persons'. At paragraph 42 the Tribunal considered the characteristics of a premises that give the 'common or ordinary meaning' of a 'home for aged persons'. The Tribunal concluded that such premises would have: ... multiple occupation, usually within individual units or rooms providing some degree of privacy but where the facility is specifically constructed with regard to the needs of those persons who are of mature age and who need to reside in such a facility ...

The Tribunal commented that this occupancy was distinctly opposite to that of persons 'residing independently in a residential home, privately owned and acquired by choice in a village or cluster type environment'.

It was further explained that: ... The particular construction type would ensure the provision of handrails, adequate bathroom and toilet access (either ensuite or communal) and ramps ...

While the Tribunal acknowledged that the concept of providing care was not mentioned in paragraph 53(4)(c) of the EGCSA, it did consider that a level of care would be provided at the facility, including, for example, the provision of meals and nursing or the like if it was required.

Importantly, the Tribunal considered that the proprietor of the facility would be subject to compliance with the Aged Care Act.

The provision of accommodation and care to persons requiring a certain level of care is funded by the Government under the Aged Care Act. The Aged Care Act refers to these services as 'residential aged care'.

An entity that meets the eligibility criteria set out in the Aged Care Act is approved to provide residential aged care services at certain establishments. These establishments are required to be approved under the Aged Care Act, and are commonly referred to as 'aged care homes'.

Accordingly, an establishment that is approved under the Aged Care Act for use in the provision of residential aged care services satisfies the meaning of a 'home for aged persons' for the purposes of paragraph 53(4)(d) of the EGCSA.

ATO ID 2006/256