A captain in the Allied merchant navy during World War II, 100-year-old Egon Pedersen, has been fighting the multi-billion-dollar company Lendlease for more than six months for the legal return of his refundable accommodation deposit (RAD). Lendlease, the largest owner of retirement villages in Australia and a company that earned $92 billion between 2014 and 2019, has been relying on technicalities to try to hang on to Egon’s deposit of $270,000.
The David and Goliath battle began eight months ago, soon after Egon suffered a stroke. The aged care assessment team recommended Egon vacate his apartment in Lendlease’s Goodwin Close Retirement Village and move into an aged care home. He needed to pay the aged care home’s accommodation deposit and took out a loan because he expected Lendlease to refund his deposit within the legislated 14 days. He certainly didn’t expect to have to hire a lawyer to fight his corner when the company refused to return his money.
Get a lawyer
When I heard about Egon’s situation, I phoned the Aged Care Quality and Safety Commission and Older Person’s Advocacy Network. Neither could help. I was told to: “get a lawyer who specialises in contract law”. Instead, I contacted Michael West.
Last Friday morning, Michael put some questions to Lendlease.
- Could you please describe Lendlease’s position?
- Is the company relying on a claim that it is in financial hardship and therefore cannot refund the RAD?
- Has Lendlease lost the plot?
By Friday afternoon, Michael had received a reply from Lendlease:
“Thank you for bringing this to our attention. Unfortunately, senior management was not aware of this issue either through escalation from the business or through our customer complaints portal. We are making contact with Mr Pedersen and his family to sincerely apologise and to take action to address the issue. We’ll also be reviewing our escalation and customer complaints processes to avoid a similar issue happening again.”
Soon afterwards, Egon’s son received a phone call from the managing director of Lendlease retirement living. He was very apologetic and said he would direct his staff to refund the full amount to my Dad immediately. Four day’s later, Egon is still waiting for the money to be returned.
Aged care legislation updated
In 2011 Egon moved into the Lendlease retirement village in Goodwin Close. He signed a contract as a non-owner resident and paid an ingoing contribution. This contract included a clause stating that Lendlease would return the accommodation deposit within two years of him vacating the apartment. However, the legislation changed in 2017, mandating the return of the deposit within 14 days for those moving into an aged care home. This change was intended to help fund accommodation costs in aged care.
Egon took out a loan because, like many others, he was unaware he could wait six months before paying the aged care home’s accommodation deposit. Egon anticipated it would only be a short-term loan and that his $270,000 would be returned in accordance with the Retirement Villages Regulations (2017).
The only reason for a company not to return the RAD in a timely manner is if the company is in financial hardship. It is unlikely that a company that earned $92 billion over the six years from 2014 to 2019 could claim financial hardship.
Contract stands, Egon told
Egon’s lawyer told Lendlease that Egon required the RAD to be returned so he could meet his ongoing care needs in the aged care home. A lawyer representing Lendlease replied that Egon’s RAD would be returned within two years of the date he vacated the retirement village, as per the original 2011 contract. As Egon’s son explained: “Dad might be dead by then.”
Lendlease used a technicality to hang on to Egon’s RAD. It was “their view” that the Regulation 7 Retirement Villages (Contractual Arrangements) Regulations 2017 (Victoria) did not apply because Egon had paid the aged care home’s RAD in full (because he wasn’t made aware he had any other option).
According to Lendlease’s lawyer: “You will see that the regulation contemplates that payment would be made directly to the aged care provider, and (in our view) it is not intended to operate as reimbursement of the RAD already paid.”
Lendlease’s unconscionable treatment of a 100-year-old man makes a mockery of its stated core values (“pillars”) are integrity, openness and trust. Coupled with the aggressive and arguably illegal tax position taken by Lendlease in its Retirement Village business, the fact that Lendlease has paid almost no income tax in Australia for a decade and the fact that Lendlease is claiming JobKeeper (relying on an aggressive and legalistic view of entitlements to the JobKeeper scheme), on what basis can LendLease claim to be an ethical company?
The Royal Commission into aged care quality and safety has focussed on substandard care and neglect of older people in aged care homes. It needs to give more attention to aged care providers who financially abuse old er people.
First published in Michael West on 7 July 2020