ADEL and WAFAA TANIOUS and SECRETARY, ATTORNEY GENERAL'S DEPARTMENT

[2012] AATA 291

[2012] AATA 291  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0011
Re	ADEL and WAFAA TANIOUS
APPLICANT
And	SECRETARY, ATTORNEY GENERAL'S DEPARTMENT
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	15 May 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Claim for Australian Government Disaster Recovery Payment (AGDRP) – Applicants qualified for an AGDRP as adversely affected by a major disaster (the Queensland floods) – Applicants unable to gain access to their principal place of residence for at least 24 hours – Claims lodged outside of relevant time-frame – No special circumstances applying to justify a late lodgement – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 1061K, 1061L

Social Security (Administration) Act 1999 (Cth) s 27A

Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No 1) ss 4(2), 5; Schedules 1 and 2

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

Mr R G Kenny, Senior Member

15 May 2012

BACKGROUND

1. On 6 September 2011, Mr Adel and Mrs Wafaa Tanious (the applicants) lodged claims with Centrelink for Australian Government Disaster Recovery Payment (AGDRP) which is payable under the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Their claims were rejected by a Centrelink delegate on the same date and those decisions were affirmed on 23 September 2011 by an Authorised Review Officer (ARO) and again affirmed on 22 November 2011 by the Social Security Appeals Tribunal (SSAT).

   LEGISLATION AND ISSUES

2. The AGDRP is an emergency payment made to people affected by specific disasters as determined by the Minister under s 1061L(2) of the Act. Qualifications for the AGDRP are set out in s 1061K of the Act which reads:

   1061K Qualification for Australian Government Disaster Recovery Payment

   (1) A person is qualified for an Australian Government Disaster Recovery Payment if:

   (a) the person is at least 16 years old, or is receiving a social security payment; and

   (b) the person:

   (i) is an Australian resident; or

   (ii) is the holder of a visa that is in a class of visas determined by the Minister for the purposes of subparagraph 729(2)(f)(v); or

   (iii) is receiving a social security payment; or

   (iv) is an Australian citizen who is not an Australian resident and who is covered by a determination under subsection (2); and

   (c) the person is adversely affected by a major disaster.

3. It is not in dispute that the applicants meet the requirements in ss 1061K(1)(a) and (b) of the Act. However, the respondent contends that they do not meet the requirement in s 1061K(1)(c) of the Act. In that regard, a person is “adversely affected by a major disaster” if he or she is affected in a manner stated in a Ministerial determination made under s 1061L of the Act which, in so far as relevant, reads:

   1061L Meaning of adversely affected

   (1)   For the purposes of this Act, a person is adversely affected by a major disaster if the person is affected by the disaster in a way determined by the Minister in relation to the disaster.

   (2)   The Minister may determine in writing, in relation to a major disaster, the circumstances in which persons are to be taken to be adversely affected by the disaster.

   …

4. Of relevance in this matter is the Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 1) (the Determination) which was made by the Minister on 4 January 2011. Under s 5 of the Determination, a person was adversely affected by a major disaster mentioned in Schedule 1 if the person was affected in a way mentioned in Schedule 2. Schedule 1 of the Determination lists the relevant major disaster for the purposes of the AGDRP. It reads:

   Schedule 1 Major disaster

   The heavy rainfall, storm damage and associated flooding in Queensland that began in November 2010 and continued into January 2011, determined to be a major disaster under section 36 of the [Social Security] Act by the Acting Attorney‑General on 1 January 2011.

5. Schedule 2 of the Determination sets out the circumstances in which a person is adversely affected for the purposes of the AGDRP. It reads:

   Schedule 2 Circumstances in which person adversely affected

   A person is adversely affected by a major disaster mentioned in Schedule 1 if, as a direct result of the disaster:

   (a) the person is seriously injured; or

   (b) a person is an immediate family member of an Australian who is killed; or

   (c) the person’s principal place of residence has been destroyed or has sustained major damage; or

   (d) the person is unable to gain access to his or her principal place of residence for at least 24 hours; or

   (e) the person is stranded in his or her principal place of residence for at least 24 hours; or

   (f) the person’s principal place of residence:

   (i) was without electricity, water, gas, sewerage service or another essential service for at least 48 hours (a utility failure); and

   (ii) the utility failure was caused by damage to public or private infrastructure; or

   (g) the person is the principal carer of a child to whom any of the previous paragraphs apply.

6. In this matter, the applicants claimed the AGDRP on the basis that they were adversely affected by the floods in Queensland in the manner listed in paragraph (d) in that they were unable to gain access to their principal place of residence[1] for at least 24 hours. This was conceded by Mr Hamilton, on behalf of the respondent. I am satisfied that this concession was properly made and note that, in the respondent’s Guidelines[2] for AGDRP, an assessment of a person’s inability to gain access to the principal home could include “formal notification and/or or public announcement of road closures and associated conditions limiting access from local council or emergency services authorities” and could be on the basis of “a self-declaration that they were unable to gain access to their principal place of residence for 24 hours or more as a direct result of the disaster”.[3]

   [1] This is defined in s 4(2) of the Determination.

   [2] The Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.

   [3] See Guidelines at s 7.12.

7. The remaining aspect of this matter is the time-frame within which a claim for AGDRP must be lodged. The relevant period is set out in s 27A of the Administration Act which reads:

   27A Time limit for claim

   (1) A claim for an AGDRP relating to a major disaster must be lodged within 6 months after the determination of the disaster under section 36 of the 1991 Act.

   (2) However, the claim may be lodged more than 6 months after the declaration if the Secretary is satisfied that:

   (a) there are special circumstances applying to the person’s claim that justify a late lodgement; and

   (b) the claim is lodged within a reasonable period having regard to those circumstances.

8. As noted above, the Determination was made on 4 January 2011 and the applicants’ claims were lodged on 6 September 2011. 

9. It is not in dispute that the applicants lodged their claims more than the six months after the Determination was made. What must be determined is whether the extension under s 27A(2) of the Administration Act should be applied to them.

   EVIDENCE

10. The undisputed facts in this matter are that, during the time of the floods in Queensland, the applicants, and their three children, each aged under 16 years, returned, at about 3 pm, to the Sunshine Coast airport from Melbourne. They then drove in their car, which had been left at the airport, towards their home in Hervey Bay. Floodwaters blocked highway access at Gympie and Maryborough and they were prevented from continuing to their home. They drove to Brisbane where they stayed with friends and, on the next day, flew to Hervey Bay, arriving at their home at about 10 pm. Getting home was important to them because of work commitments for Mr Tanious who practices as an anaesthetist. On the following weekend, Mr Tanious flew to Brisbane, accessed his car and then returned by road to Hervey Bay. Their estimated cost of flights and airport car parking was in excess of $1,500. 

11. The applicants were not aware of the availability of the AGDRP until Mrs Tanious, who manages the family finances, spoke with her accountant in late August when dealing with the annual taxation returns. The accountant advised her of the payment scheme and Mrs Tanious immediately contacted Centrelink for further information. Within days, each applicant lodged a claim for the AGDRP.

12. The applicants conceded that, as their home was not directly threatened by flood waters, they had not made any particular enquiry about relief payments. They were unaware of any advertising of the AGDRP and, in any event, were more concerned with events occurring in Egypt at the time. They came from Egypt to Australia in 1994 and, at the time of the floods, political problems in Egypt were manifested in rioting and armed conflict. Each has close family in Egypt and they were concerned about their wellbeing, especially because of the wide television news coverage of the conflict. Mrs Tanious suffered from depression during that period.

    SUBMISSIONS

13. The applicants submitted that, while they were unaware of the AGDRP until after the claim period had expired, regard should be had to the distraction they experienced due to the political problems in Egypt and their associated concerns for family members as well as the health concerns of Mrs Tanious.

14. While Mr Hamilton conceded that that the applicants were adversely affected by the floods, he submitted that they were outside of the relevant time-frame for lodging their claims for the AGDRP and that the matters raised by them did not amount to special circumstances which would justify late lodgement. He submitted that the reason for the delay in making the claims was that the applicants were not aware of the right to make claims. He submitted that this did not amount to a special circumstance.

    CONSIDERATION

15. Every individual and every family have their own circumstances in their respective lives and, clearly, many of these are special to them. I accept that the matters relating to the events in Egypt and Mrs Tanious’ health were special to the applicants. However, the extent to which the applicants’ circumstances were special is not the issue under s 27A of the Administration Act. That provision has, as its focus, special circumstances applying to the person’s claim that justify a late lodgement. There is no evidence before me to indicate that, in the absence of health problems and the events in Egypt, the applicants’ circumstances “applying to” their claims would have been any different. Those circumstances did not serve “to justify a late lodgement” of their claims. The claims were lodged more than six months after the making of the Determination because the applicants had no knowledge of the AGDRP. I am satisfied that acceptance of mere ignorance of the right to make a claim as a special circumstance to justify late lodgement would defeat the clear intention of Commonwealth Parliament to set an end date for making claims.

    DECISION

16. The Tribunal affirms the decision under review.

I certify that the preceding 16 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated  15 May 2012

Date of hearing	4 May 2012
Applicants	In person
Advocate for the Respondent	Bob Hamilton, Departmental Advocate