Arcibal and Secretary, Department of Family and Community Services

[2002] AATA 501

DECISION AND REASONS FOR DECISION [2002] AATA 501

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/31

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      JUANITO QUIBA ARCIBAL       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Mr J. Handley, Senior Member    

Date21 June 2002

PlaceHobart

Decision      The decision under review is affirmed.   
  ...........Sgd J Handley...........................
  Senior Member

CATCHWORDS
Social Security - Crisis payment - whether applicant left his home because of an extreme circumstance - decision affirmed.
Social Security Act 1991

REASONS FOR DECISION

21 June  2002   Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 19 February 2002.  The SSAT then affirmed a decision previously made by an Authorised Review Officer ("ARO") on 30 October 2001 to reject his application for a crisis payment.

2. The hearing proceeded in Launceston on 30 May 2002.  Mr Arcibal appeared without representation, but with the assistance of an interpreter.  Ms Bradley appeared on behalf of the respondent.

3. The documents prepared by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 were received into evidence. Mr Arcibal also provided a number of written submissions, which will be referred to later in this decision.
   The Legislation

4. Section 1061JH(1) of the Social Security Act 1991 ("the Act") provides that a person will qualify for a crisis payment in the following circumstances-

   "(a)the person has left, or cannot return to, his or her home because of an extreme circumstance; and

   (b)the extreme circumstances makes it unreasonable to expect the person to remain in, or return to, the home; and

   (c)the person has established, or intends to establish, a new home; and

   (d)at the time the extreme circumstance occurred, the person was in Australia; and

   (e)the person makes a claim for a crisis payment within 7 days after the extreme circumstance occurred; and

   (f)on the day on which the claim is made:

   (i)the person is in severe financial hardship (see section 19D); and

   (ii)the person has made a claim (whether on the same day or on an earlier day) for a social security pension or benefit and the person is qualified for the pension or benefit; and

   (g)during the 12 months immediately preceding the day on which the claim is made, no more than 3 crisis payments have been payable to the person."

The Facts

1. At all relevant times, Mr Arcibal was residing as a tenant at premises at number 7 Monash Street Mowbray.  On 28 October 2001, a dispute apparently occurred between he and Mr Grubert, his landlord.  Eventually Mr Grubert escorted Mr Arcibal from the premises and drove him to a local hotel - the Mallee Grill - and arranged accommodation for him on the night of 29 October at those premises.  Mr Grubert also delivered the applicant's possessions and paid the cost of the accommodation for that night.

2. On the next day, Mr Arcibal approached the Housing Trust of Tasmania and Anglicare.  Anglicare arranged to pay the cost of one weeks accommodation in premises which were located by the Housing Trust at Lambert Street, Ravenswood.  The applicant continues to reside in those premises.

3. The applicant also applied for a crisis payment at the Launceston Centrelink Office on 29 October.  That application was denied.

4. At the hearing, Mr Arcibal said that the owner of the premises in Mowbray was operating a "improper business" and was contravening the tenancy laws.  He said that the owner of the premises "takes" a bond payment in the sum of $160 from tenants.  Apparently, the tenants are students.  Additionally, it was put that the owner of the premises required tenants to pay rent fortnightly in advance. 

5. On the night of 28 October 2001, Mr Arcibal said that Mr Grubert detained him in his room, and insisted on the payment of rent.  He said he was detained for a period of approximately 2 hours and was "hassled" by the owner and his "manager".  Mr Arcibal said that he then suffered a "terrible headache" and from "blood pressure". He also said that he was "mentally tortured" by Mr Grubert, that he was not physically assaulted or exposed to physical violence, but the "mental torture hurt more than physical action.  Their words were like knives, an axe and bullets.  They tormented my brain.  I am not used to bullying words".  Apparently Mr Grubert rang the police to enlist their assistance to evict Mr Arcibal, but they refused to intervene.

6. In cross-examination, Mr Arcibal said that he had paid a bond of $160 and had been paying rent fortnightly in the equivalent sum.  When pressed on this issue, he agreed that he was in arrears of rent.  He also agreed that Mr Grubert drove him in his car to the Mallee Grill, having previously secured accommodation for him on that night.  He agreed that Mr Grubert also delivered his personal belongings and paid for one nights accommodation.  He also agreed that Mr Grubert paid him $40 in cash being the difference between arrears of rent and bond monies.

7. During the course of the hearing, it became obvious that Mr Arcibal was very unhappy with some members of the local Centrelink office.  He also alleged that there was collusion between Centrelink, the Authorised Review Officer and the Social Security Appeals Tribunal.  He made allegations about interference in the decision making process by Centrelink officers.  He also submitted two documents he completed, recording alleged instances of certain events affecting the processing of various claims that he made, which support his contentions of collusion. 
   Conclusion & Reasons For Decision

8. I am not satisfied that any of Mr Arcibal's allegations, with respect to the conduct and administration of Centrelink claims or the conduct of Centrelink officers, have any credibility.  They do no more than offer a distraction from the real issue, namely, whether Mr Arcibal is entitled to a crisis payment. 

9. The applicant agreed that he was not exposed to nor did he suffer from physical violence.  His previous landlord arranged alternate accommodation for him, paid for it and delivered him to those premises.  Whilst it would appear that the applicant was evicted because of arrears of rent, that fact of itself is not an "extreme circumstance".  On the one hand, the landlord is exercising his tenancy rights.  On the other hand, if there has been a contravention of Tasmanian laws with respect to domestic tenancies, the applicant has rights that he may choose to exercise. 

10. Examples of "extreme circumstances" are recorded within the Act as being a person's house being burnt or a person being subjected to domestic or family violence. None of those events or type of events occurred. The applicant was apparently evicted because he did not pay rent. However, the landlord did deliver him to other premises and paid for those premises. On the next day, the applicant qualified for alternative housing and the rent for the first week was paid by a local welfare agency. At all relevant times the applicant has had accommodation. He continued to receive his Social Security benefits. There has been no interruption in the availability to him of accommodation, nor has there been any interruption in pension payments.

11. I am unable to find that the applicant has left his former home in Mowbray because of an extreme circumstance, as s.1061JH(1)(a) requires. Additionally, there is no evidence that the applicant was then in severe financial hardship (s.1061JH(1)(f)(i)).

12. I note the applicant has been the subject of an earlier appeal within this Tribunal, with respect to a refusal to grant crisis payment (T2000/122).  I note from reading the decision the Tribunal then made, that the applicant left his former premises because he feared eviction by reason of rent arrears.  The Tribunal then found that his circumstances were not extreme.  I note the similarity between the circumstances giving rise to the applicant leaving his former accommodation in the earlier application, and the reasons given in the present application.

13. In all of the circumstances, the decision under review must be affirmed. 

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed:         Katherine Navarro.................
  Associate

Date/s of Hearing  30 May 2002
Date of Decision  21 June 2002
Counsel for the Applicant        Mr Arcibal
Solicitor for the Applicant          
Counsel for the Respondent    Ms R Bradley
Solicitor for the Respondent