Amanda Wilson and Secretary, Department of Social Services

[2014] AATA 350

[2014] AATA 350

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0515
Re	Amanda Wilson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P Wulf, Member
Date	4 June 2014
Place	Brisbane

The Tribunal affirms the decisions under review.

...............................Sgd.....................................

Mr P Wulf, Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Multiple claims for Australian Government Disaster Recovery Payment (“AGDRP”) – Whether principal place of residence – Whether at principal place of residence at time of disaster – Applicant’s property and place of residence not flooded – Access to neighbours’ properties and streets available – Applicant not stranded in her place of residence – Whether no electricity for more than 48 hours – Not adversely affected – Debt owed – Decisions under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 36, 1061K, 1061L, 1223, 1236, 1237A, 1237AAD

CASES

Horsfield and Secretary, Attorney-General's Department [2013] AATA 811
Kahler and Secretary, Attorney-General's Department [2012] AATA 786
Mason and Secretary, Attorney General’s Department [2011] AATA 904

Dranichnikov v Centrelink [2003] FCAFC 133

SECONDARY MATERIALS

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

Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 4) ss 3, 4; Schedules 1 and 2

REASONS FOR DECISION

Mr P Wulf, Member

4 June 2014

INTRODUCTION

1. Miss Amanda Wilson[1] seeks review of two decisions made by Centrelink to raise two debts, this being the “first debt”[2] and “second debt”,[3] both issued on 14 April 2011 in relation to two payments of Australian Government Disaster Relief Payment (“AGDRP”) made on 18 January 2011 (“first claim”)[4] and 4 February 2011 (“second claim”)[5] respectively.

   [1] Exhibit 1, 1/1–2.

   [2] Exhibit 1, 34/139-140.

   [3] Exhibit 1, 34/141-142.

   [4] Exhibit 1, 17/74-75.

   [5] Exhibit 1, 21/79-80.

2. The respondent raised the two debts ($2,800 in total - $1400 each made up of $1,000 compensation for Miss Wilson personally and $400 compensation for her daughter) for both claims as it considered that Miss Wilson was not adversely affected by a major disaster at the time of the claims, as the two locations where she indicated she was residing were not her principal places of residence.

3. An Authorised Review Officer (“ARO”) affirmed the decisions to raise the debts in relation to both claims on 12 August 2013.[6]

   [6] Exhibit 1, 41/187-198.

4. On 7 October 2013, Miss Wilson appealed to the Social Security Appeals Tribunal (“SSAT”) which upheld the original decisions to raise the debts in relation to the claims for AGDRP.[7] Miss Wilson subsequently applied to this Tribunal for review of the decisions.

   [7] Exhibit 1, 2/3-8.

5. For the reasons that follow, this Tribunal affirms the decision under review; although the reasons for affirming the decision in relation to the first claim and the corresponding debt are for different reasons to those of the ARO and SSAT with respect to the principal place of residence only.

   THE ISSUE FOR THE TRIBUNAL'S DETERMINATION

6. The issues for the Tribunal’s determination are whether:

   (a)Miss Wilson’s principal place of residence at the time of the first claim was
   Adam Court, Redbank Plains,[8] or 26 Redbank Plains Road, Redbank Plains;[9]

   (b)Miss Wilson’s principal place of residence at the time of the second claim was in an area affected by Cyclone Yasi, namely Lucinda Caravan Park;[10] and if so,

   (c)Miss Wilson was affected by the two disasters in a way determined by the Minister in relation to the disasters under ss 1061K and 1061L of the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 1) (“the First Determination”) and Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 4) (“the Second Determination”).

   [8] No number provided for anonymity – herein referred to as “Adam Court”.

   [9] Herein referred to as “Redbank Plains Road”.

   [10] Shortened for anonymity.

   LEGISLATION

7. The first claim was made in accordance with the First Determination, enacted by the then Attorney-General on 4 January 2011. The First Determination related to 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 s 36 of the Act.

8. The second claim was made in accordance with the Second Determination, enacted by the then Attorney-General on 3 February 2011. The Second Determination related to the severe weather, storm surges and flooding as a result of Tropical Cyclone Yasi.

9. The First Determination’s AGDRP is an emergency payment made to people adversely 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.

10. 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.

11. Section 1061L(2) empowers the Minister to determine, in writing, the circumstances in which persons are to be taken to be adversely affected by the disaster. With respect to the first claim, Sch 2 of the First Determination states:

    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.

12. With respect to the second claim, Sch 2 of the Second Determination states:

    A person is adversely affected by a major disaster mentioned in Schedule 1 if:

    (a)as a direct result of the disaster:

    (i)      the person is seriously injured; or

    (ii)     the person is an immediate family member of an Australian who is killed; or

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

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

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

    (b)as a result of the disaster, the person’s principal place of residence was without electricity, water, gas, sewerage service or another essential service for at least
    48 hours; or

    (c)the person is the principal carer of a child to whom paragraph (a) or (b) applies.

13. To be eligible to make a claim, a person must firstly live in a principal place of residence that was in an adversely affected area; and secondly, must have been adversely affected in one of the ways listed in either the First or Second Determination. Just living in an adversely affected area is not enough to be eligible to claim AGDRP.

14. Section 1223(1) of the Act provides that where an amount has been paid to which a person was not entitled for any reason to be paid, it becomes a debt owed to the Commonwealth. Section 1223(1AB) sets out the circumstances under which a person is taken not to have been entitled to obtain the benefit of a payment and includes in subs (d) where, "the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation".

15. Section 1236 provides for write-off of a debt where the debt is either irrecoverable at law; or the debtor has no capacity to repay the debt; or the debtor's whereabouts are unknown; or it is not cost-effective for the Commonwealth to take action to recover the debt. Section 1237A provides for a waiver of debts which is attributable solely to an administrative error if the debtor received the payments in good faith.

16. Section 1237AAD provides for the waiver of debts in special circumstances and provides as follows:

    Waiver in special circumstances

    The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

    (a)     The debt did not result wholly or partly from the debtor or another person knowingly:

    (i)making a false statement or a false representation; or

    (ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

    (b)     There are special circumstances (other than financial hardship alone) that make it desirable to waive; and

    (c)      It is more appropriate to waive than to write off the debt or part of the debt.

    ANALYSIS

17. A person is only eligible to be paid AGDRP if they are able to demonstrate they pass a two-part test. The test requires that:

    (a)A person must live in a principal place of residence that was in an adversely affected area; and secondly

    (b)The person must have been adversely affected in one of the ways listed in the First or Second Determination.

18. This matter relates to two claims Miss Wilson made for AGDRP. When making both claims, Miss Wilson declared that the information provided for the claim was complete and correct.[11] There is a third claim that Miss Wilson advised both Centrelink and the Tribunal that she did not make, this being one in relation to her being in Grafton, NSW during the week of 11 January 2011.[12] This date is important as this was the time when Adam Court was supposedly adversely affected. Further, it is noted that this claim was rejected and no payment was ever made.

    [11] Exhibit 1, 17/74-75 and 21/79-80.

    [12] Exhibit 1, 33/115-138, see 125-126.

19. It is not in dispute that Miss Wilson meets the requirements in s 1061K(1)(a) and (b) of the Act. However, the previous decisions were that Miss Wilson was not eligible for AGDRP as she did not pass the first limb of the test, this being that her principal place of residence was not in an adversely affected area. For ease of reading, the first and second claims are discussed separately below.

    First Claim – Principal Place of Residence

20. The weather events of the summer season of 2010-2011 will be remembered by Queenslanders as some of the worst ever seen. The flooding in relation the Miss Wilson’s claim commenced on 11 January 2011, with Brisbane and surrounding areas being significantly affected.

21. Miss Wilson made a claim as being one of the residents adversely affected. In her claim for AGDRP, Miss Wilson stated that her principal place of residence at the time of the Brisbane floods was Adam Court. This was inconsistent with where Centrelink had her listed as living in relation to her actual residential address, this being Redbank Plains Road. Miss Wilson was listed as living at Redbank Plains Road from September 2010 to April 2011 except for a period when she was supposedly in Lucinda.[13] Centrelink listed Adam Court as her postal address during this period.[14] When re-assessing the claim, the ARO and SSAT determined that Miss Wilson’s principal place of residence was Redbank Plains Road rather than Adam Court and therefore they determined she was not in an adversely affected area.

    [13] Exhibit 1, 39/158-185, see 158.

    [14] Exhibit 1, 39/158-185, see 166.

22. There appeared to be a number of reasons as to why Miss Wilson supposedly decided to stay with her mother at Adam Court. These included that the rent for the property she was residing at in Fortitude Valley was increasing; and further, in her discussions with the ARO, Miss Wilson indicated she was moving as a result of issues with her ex-partner with respect to harassment.[15] Interestingly, on 17 November 2010, during a telephone conversation with Centrelink, Miss Wilson advised that she was intending to move in with her mother at Adam Court,[16] which appears to contradict her evidence that she moved in with her mother in September 2010.

    [15] Exhibit 1, 41/187-192.

    [16] Exhibit 1, 33/115-138, see 138.

23. During the hearing, Miss Wilson relied upon evidence from a number of sources[17] that she resided at Adam Court rather than Redbank Plains Road. Miss Wilson stated that she had never advised Centrelink that she was renting a property at Redbank Plains Road and suggested others may have provided that evidence to Centrelink.

    [17] Exhibit 3.

24. The Adam Court property was managed by Professional Realty Goodna

    
    

    (“the Professionals”) with Miss Wilson’s mother and her then husband being the only tenants listed on the lease. Miss Wilson indicated that her arrangement with her mother and her mother’s then husband was an informal arrangement, insofar as she was not listed on the lease and there were no formal sublease documents. Miss Wilson states that this was the reason the Professionals were not able to confirm that Miss Wilson was residing at Adam Court,[18] although Miss Wilson stated that Aida from the Professionals knew she was residing at the property. It is also noted that when Centrelink requested information from the ANZ Bank on 4 April 2011,[19] the ANZ Bank advised that her address was Adam Court.[20]

    [18] Exhibit 1, 41/187-192, see 188.

    [19] Exhibit 1, 31/97-101.

    [20] Exhibit 1, 31/102-113.

25. During a telephone conversation with the ARO, Miss Wilson’s mother indicated that Miss Wilson was living at Adam Court but did not provide specific dates.[21] It would appear that the respondent placed some weight on this insofar as it suggests that she may not be living at the address as they were unable to confirm the dates with her mother in later phone calls.

    [21] Exhibit 1, 41/187-192.

26. Miss Wilson told the Tribunal that when Centrelink advised that her AGDRP claim had been reversed on the grounds that Centrelink believed Miss Wilson was residing at Redbank Plains Road, her mother’s then husband and she drove to Redbank Plains Road to investigate the property. During her evidence, Miss Wilson indicated that the property was only a “horse paddock” and that she would not bring her daughter up in that location.

27. On 13 April 2011, the respondent contacted the owner of Redbank Plains Road. The owner of the property (the property numbers were changed from 26 to 16-26 Redbank Plains Road) indicated that Miss Wilson did not live at the property. When Centrelink undertook a Google search of the property, they observed the property to be a shop.[22] During the hearing, the Tribunal made its own investigations as to Redbank Plains Road and discussed this investigation with the parties. The Google search indicated that the address included a shop and a number of reserves and it is suggested that one of these could be property Miss Wilson identified as a “horse paddock.” This would be consistent with what Centrelink may have also found in their search.

    [22] Exhibit 1, 33/115-138, see 117.

28. There was discussion during the hearing as to any proof Miss Wilson could provide the Tribunal as to residing with her mother at Adam Court. One piece of evidence that would have been beneficial would have been some form of rent receipt. Miss Wilson indicated that she was paying her mother $150/week rent on her “big week”[23] and between $60 and $80/week on the alternate week when she received her Family Benefit Payment.

    
    

    The Tribunal determined that on average, she was paying $110/week during the period she said she was staying with her mother. Specifically, Miss Wilson advised the Tribunal that her mother had not provided her with any rent receipts as she was her daughter and had never requested any.

    [23] When she received her parenting payment from Centrelink.

29. The evidence in relation to the rent is in significant conflict with what Miss Wilson had advised she was paying based on her discussions with the ARO ($200/week),[24] what she was registered as paying with Centrelink (ranging from $180 to $240 during

    
    

    September 2010 to April 2011)[25] and based on a rent receipt provided by JH[26] for the period when she made her first claim (11 to 18 January 2011).[27] JH was supposedly the person Miss Wilson was renting a property from in Grafton during that week,[28] although Miss Wilson repeatedly advised Centrelink that she had not been in Grafton and she had no friends in Grafton.[29]

    [24] Exhibit 1, 41/187-192.

    [25] Exhibit 1, 39/158-185, see 172 and 173.

    [26] Shortened for anonymity.

    [27] Exhibit 1, 40/186.

    [28] Exhibit 1, 33/115-138, see 120.

    [29] Exhibit 1, 37/147-148.

30. Centrelink sent Miss Wilson a SU523 Rent Certificate (New Claim) form on

    
    

    2 December 2010,[30] and she was sent other letters with respect to her change of address and rent payments.[31] On 16 February 2011,[32] Miss Wilson advised Centrelink that she was paying $240/week in rent to Mr S.[33] On 13 April 2011, Miss Wilson advised Centrelink that she was not living with her parents, not sharing accommodation, and paying rent of $200/week.[34] Further, on the same date, Miss Wilson advised Centrelink that she was no longer living at Redbank Plains Road, that she would be moving in with her parents; and that she was paying $240/week in rent to a Mr S.[35]

    [30] Exhibit 1, 13/62.

    [31] Exhibit 1, 28/90-92.

    [32] Exhibit 1, 33/115-138, see 131.

    [33] Exhibit 1, 33/115-138, see 117.

    [34] Exhibit 1, 33/115-138, see 116.

    [35] Exhibit 1, 33/115-138, see 117.

31. The Tribunal has significant concerns with the evidence regarding rent given to this Tribunal, as the amount is, as the respondent put it, significantly less than the amount Miss Wilson was claiming and therefore being paid based on her rent assistance calculations. This is particularly so with respect to the rent receipt provided by JH that was for the specific period when Adam Court was supposedly adversely affected.[36] It is extremely concerning that Miss Wilson would provide this document to Centrelink when she has told this Tribunal that she was paying $150/week rent on her “big week”[37] and between $60 and $80/week on the alternate week. Accordingly, concern is raised over the preparation and submission of this rent receipt.

    [36] Exhibit 1, 40/186.

    [37] When she received parenting payment from Centrelink.

32. While the issues as to rent raises concerns as to credit, the Tribunal is persuaded, on the balance of probabilities, that Miss Wilson’s principal place of residence was Adam Court rather than Redbank Plains Road. There seems to be enough evidence to suggest she may have been at this location during the time of the major disaster despite the claim for AGDRP for the same period when she was supposedly in Grafton, a claim she rejects making. On this basis, the Tribunal finds that Adam Court was Miss Wilson’s principal place of residence and accordingly, the first limb of the test is found in the affirmative.

    First Claim – Schedule 2(a): Serious Injury

1. There is nothing in the evidence that would suggest Miss Wilson suffered a serious injury as a result of the major disaster, this being that covered by the First Determination.

   
   

   Miss Wilson stated when making the claim that neither a family member nor she was injured.[38] Accordingly, her claim for AGDRP cannot succeed under this provision and the debt remains.

   [38] Exhibit 1, 17/74-75.

   First Claim – Schedule 2(b): a person is an immediate family member of an Australian who is killed

2. There was no evidence that would suggest an immediate family member of

   
   

   Miss Wilson’s was killed as a result of the major disaster, this being that covered by the First Determination. Miss Wilson stated when making the claim that no immediate family member had been killed.[39] Accordingly, Miss Wilson’s claim for AGDRP cannot succeed under this provision and the debt remains.

   First Claim – Schedule 2(c): the person’s principal place of residence has been destroyed or has sustained major damage

   [39] Exhibit 1, 17/74-75.

3. There was no evidence that would suggest the property where Miss Wilson was residing was destroyed or has sustained major damage as a result of the major disaster, this being that covered by the First Determination. Miss Wilson stated when making the claim that that her principal place of residence was not destroyed nor did it suffer substantial damage.[40] The Queensland Reconstruction website indicated the property was not damaged by floodwater.[41] Accordingly, Miss Wilson’s claim for AGDRP cannot succeed under this provision and the debt remains.

   First Claim – Schedule 2(d): the person is unable to gain access to his or her principal place of residence for at least 24 hours

   [40] Exhibit 1, 17/74-75.

   [41] Exhibit 1, 41/187-192, see 191.

4. In her claim, Miss Wilson indicated that Adam Court was inaccessible and had been for one week.[42] Further, Miss Wilson had advised Centrelink that when she returned to Adam Court on 18 January 2011, flood waters had entered the home and affected her daughter’s room, kitchen and lounge room.[43] Miss Wilson further advised Centrelink that she was staying with her mother as “her house was flooded.”[44] Based on the evidence, Centrelink determined that this was the specific grounds for granting the AGDRP to

   
   

   Miss Wilson.[45]

   [42] Exhibit 1, 17/74-75.

   [43] Exhibit 1, 33/115-138, see 120.

   [44] Exhibit 1, 33/115-138, see 129.

   [45] Exhibit 1, 33/115-138, see 124.

5. By contrast, in her evidence before the Tribunal, Miss Wilson indicated that she remained at the property during the major disaster and was able to sleep in the property. This is contradictory to the information contained in her claim. There is no evidence that would suggest that Miss Wilson was unable to gain access to her principal place of residence as a result of the major disaster, and more importantly, her evidence as discussed below with respect to Sch 2(e) indicates that the information she gave when making her claim was misleading. When making her claim, Miss Wilson indicated that Adam Court had been inaccessible for a week.[46]

   [46] Exhibit 1, 17/74-75.

6. The Tribunal is of the opinion that Miss Wilson was able to access her property and on this basis, her claim for AGDRP cannot succeed under this provision of the

   
   

   First Determination and the debt remains.

   First Claim – Schedule 2(e): the person is stranded in his or her principal place of residence for at least 24 hours

7. When making her claim, Miss Wilson stated that she could not leave her property for one week.[47] During the SSAT hearing, Miss Wilson stated that she was unable to leave
   

   [47] Exhibit 1, 17/74-75.

   [48] Exhibit 1, 41/187-192.

   Adam Court for two weeks as a result of the floods. By contrast, during this hearing, Miss Wilson indicated that she was able to leave her home and move freely around her street. This would concur with the evidence from the Queensland Reconstruction website.[48] Miss Wilson’s evidence was that she was able to walk down her street to her daughter’s child care centre and visit adjacent properties; however, Miss Wilson’s evidence at this Tribunal was also that she was unable to get to the shops, including her ANZ Bank Branch, because the water had crossed the road and she did not have a car. The Tribunal prefers the evidence Miss Wilson provided during the current hearing as this is consistent with the information from the Government website.

8. In Mason and Secretary, Attorney-General’s Department[49] (“Mason”), Deputy President Hack SC stated that the provisions of the Determination in question in that case[50] should “be given a fairly narrow operation”. Based on the precedence of Horsfield and Secretary, Attorney-General's Department,[51] Kahler and Secretary, Attorney-General's Department,[52] and Mason, this matter is bound to follow the same “narrow operation”.

   [49] [2011] AATA 904 at [9].

   [50] Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 4).

   [51] [2013] AATA 811.

   [52] [2012] AATA 786.

9. Schedule 2(e) of the First Determination requires that the claimant be unable to leave their principal place of residence for a period of at least 24 hours. In that sense, it complements and is the converse to Sch 2(d), which operates where a claimant is unable to gain access to their principal place of residence for at least 24 hours.

10. By virtue of s 4 of the First Determination, a place of residence is a person’s principal place of residence if the person normally resides at the place and has a lawful right to reside at that place. Deputy President Hack SC provided an excellent summary of how this Tribunal should assess a principal place of residence in Mason at para [10], where he stated:

    By virtue of clause 3(2) of the Determination, a place of residence is a person’s principal place of residence if the person normally resides at the place and has a lawful right to reside at that place. The language chosen to define the circumstances of adverse affectation is different; a person is adversely affected if stranded in the principal place of residence. That choice of language must be given effect to. Had the Determination defined the circumstances as being stranded at the principal place of residence the applicants might have satisfied the criteria however I do not consider that they were stranded in their place of residence for the required 24 hours. The fact that they were able to leave the residences and travel tells conclusively against acceptance of the proposition that they were stranded in their residences.

11. Based on the above, and the evidence of Miss Wilson, the Tribunal is not satisfied that she was stranded in her principal place of residence for a period of at least 24 hours.
    Miss Wilson’s own evidence was that she could walk out of her house and onto a public road. Miss Wilson had the capacity to leave the residence and to travel, albeit not very far. She may have considered herself as having been adversely affected; however based on precedence and the narrow operation, the Tribunal does not consider that her inability to for example, get to the ANZ Bank, satisfies the requirement of the First Determination. Therefore Miss Wilson was not qualified for the AGDRP in relation to being stranded in accordance with Sch 2(e).

    First Claim – Schedule 2(f): utility failure for at least 48 hours

12. When making her claim, Miss Wilson was unable to indicate what day the electricity had been turned off. This is important in that she was supposedly at the property. For example, Miss Wilson indicated that it may have been either the Wednesday or the Thursday.[53]

    [53] Exhibit 1, 17/74-75.

13. Miss Wilson’s evidence both before the SSAT and this Tribunal was that the
    Adam Court property was without power for 24 hours or more but less than 48 hours. Further, Miss Wilson indicated that the power had been shut off rather than lost as a result of a failure. With respect to this evidence, Miss Wilson provided no other evidence such as a letter from Energex stating that the electricity had failed at Adam Court for any substantive time and therefore the Tribunal takes this evidence on its face.

14. For the property to have been adversely affected by a major disaster, Miss Wilson must pass a two part test with respect to the loss of electricity, this being that the 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.

15. It is noted from Miss Wilson’s evidence that neither of the two parts of the test are satisfied, in that the loss of electricity was not for “at least 48 hours” and that there was not a “failure” as Miss Wilson indicated the power was switched off rather than a failure occurring. While Miss Wilson’s evidence may not be fully informed with respect to the failure as she is unlikely to be fully aware of the events leading up to the loss of power, on her own evidence the property was not without power for at least 48 hours. Based on this evidence, Miss Wilson did not suffer as a result of the major disaster, this being that covered by the First Determination. Accordingly, Miss Wilson’s claim for AGDRP cannot succeed under this provision.

    Conclusion - First Claim

16. Based on the above, this Tribunal is not satisfied that Miss Wilson was adversely affected as a result of the major disaster as per the First Determination. Miss Wilson was able to stay at her principal place of residence, no one died or was seriously injured and she was, on her own evidence, only without electricity for a period of 24 hours or more but less than 48 hours. On these facts, Miss Wilson does not satisfy the requirement of the
    First Determination and the claim should not have been paid. The raising of the debt was correct in the circumstances.

    Second Claim

17. The second claim was made on the premise that the applicant had a principal place of residence in Lucinda at the time of making the claim.

18. At the commencement of the hearing, Miss Wilson agreed that she was not in Lucinda at the time of Cyclone Yasi and therefore was not affected in any way by Cyclone Yasi. Miss Wilson’s bank statements demonstrate she was in Goodna rather than in Lucinda.[54] Further, Miss Wilson advised Centrelink that she was not adversely affected by

    
    

    Cyclone Yasi.[55] Miss Wilson indicated that she did not believe she had made the claim; however she did agree that she had received the $1,400 for AGDRP to which she was not entitled.

    [54] Exhibit 1, 33/115-138, see 118.

    [55] Exhibit 1, 35/143-144.

19. Miss Wilson suggested that this claim and the one in relation to Grafton were not made by her. Miss Wilson indicated that others may have made the claims by impersonating her. There is no material to suggest that this is the case; however the Tribunal notes

    
    

    Miss Wilson’s concerns. The Tribunal recommends that if Miss Wilson has fears that others are impersonating her, she should, for example, come up with a specific password known only to herself and Centrelink to be used during all conversations.

20. On the basis of Miss Wilson’s statements, she agreed that the debt was correct and should be repaid. In these circumstances, the second debt should be repaid.

    Should the Debts be waived or written off?

21. During the hearing, the Tribunal sought submissions from Miss Wilson on whether the debt, if found to be owed, should be waived or written off. Miss Wilson’s first reaction was that if a debt was found to exist, she should be forced to pay it back. When further questioned, Miss Wilson indicated that the debt should be waived on the basis that she had deteriorating health as a result of this matter, she was pregnant with her second child and that her daughter was ill with a bowel condition.

22. The Tribunal finds that it is not appropriate to write off the debt under s 1236(1A). The Tribunal accepts that Miss Wilson has the capacity to repay the debt as she has already repaid some of the debt. The Tribunal considers that none of the other factors referred to in s 1236(1A) apply in the circumstances.

23. The Tribunal does not consider that the waiver of the debts is appropriate pursuant to s 1237A(1) because no portion of the debt was attributable solely to administrative error. While Miss Wilson submitted that she did not advise Centrelink that she was living in certain locations, she definitely made the first claim when there was no evidence to support that she was adversely affected in accordance with the First Determination. Further, she used the money from the second claim when she, on her own evidence, had not made the claim.

24. The penultimate consideration is whether the debt should be waived pursuant to s 1237AAD of the Act. The provisions in this section are conjunctive in that the Tribunal must be satisfied that the debt did not arise wholly or partly from the person making a false statement, or failing or omitting to comply with a provision of the Act or the
    Social Security (Administration) Act 1999 (Cth) and there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt and it is more appropriate to waive the debt than to write it off.

25. The term "special circumstances" has been considered on numerous occasions by both this Tribunal and the Federal Court in both its original and appellate jurisdictions.
    

    [56] [2003] FCAFC 133.

    Special circumstances are generally accepted as circumstances that are different from the usual cases such that they take the case out of the ordinary (for example, see Dranichnikov v Centrelink).[56] While the Tribunal notes Miss Wilson’s and her daughter’s health issues, these are not what would be considered as something that would give rise to special circumstances. Therefore, in the present case, there are no reasons to waive or write off the debts.

    DECISION

26. I am satisfied that the applicant was not a person who was adversely affected by a major disaster as described in the First and Second Determinations, and therefore the Tribunal affirms the decisions under review.

I certify that the preceding 58
(fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

................................Sgd.....................................

Associate

Dated 4 June 2014

Date of hearing	22 May 2014
Applicant	In person
Advocate for the Respondent	Rick McQuinlan, Department of Human Services