Arcibal v Secretary, Department of Family and Community Services

[2002] FCA 1313

FEDERAL COURT OF AUSTRALIA

Arcibal v Secretary, Department of Family & Community Services [2002] FCA 1313

SOCIAL WELFARE - appeal from decision of Administrative Appeals Tribunal affirming decision to reject application for crisis payment under s 1061JH of Social Security Act 1991 (Cth) – applicant recipient of Social Security benefits – applicant evicted from rental premises for non-payment of rent – temporary alternative accommodation provided – whether situation constituted an “extreme circumstance” – whether there was “severe financial hardship”

WORDS AND PHRASES – “extreme circumstances”, “severe financial hardship”

Social Security Act 1991 (Cth) s 1061JH

JUANITO QUIBA ARCIBAL v SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
NO T8 OF 2002

HEEREY J
17 OCTOBER 2002
HOBART

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 8 OF 2002

BETWEEN:	JUANITO QUIBA ARCIBAL APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	17 OCTOBER 2002
WHERE MADE:	HOBART

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The applicant pay the respondent’s costs, including reserved costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 8 OF 2002

BETWEEN:	JUANITO QUIBA ARCIBAL APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	HEEREY J
DATE:	17 OCTOBER 2002
PLACE:	HOBART

REASONS FOR JUDGMENT

1. The applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal), given on 21 June 2002, which affirmed a decision of the Social Security Appeals Tribunal (the SSAT) which in turn had affirmed a decision made by an authorised review officer of the Department of Family and Community Services (the Department) on 30 October 2001 to reject the applicant’s application for a crisis payment. The relevant legislation relating to this benefit is s 1061JH(1) of the Social Security Act 1991(Cth) (the Act) which is as follows:

   “  A person is qualified for a crisis payment if, after the commencement of this section:

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

   (b)     the extreme circumstance 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.”

2. The evidence before the Tribunal was to the effect that the applicant had been living as a tenant at premises at 7 Monash Street, Mowbray.  On 29 October 2001 a dispute occurred between the applicant and his landlord.  The applicant was in arrears with his rent and the landlord was insisting on payment.  In his evidence before the Tribunal, the applicant said that he was detained for a period of approximately two hours and was “hassled” by the landlord and his “manager”.  The applicant said that he suffered a “terrible headache” and from “blood pressure” and that he was quite “quite mentally tortured”.  However, he did not suggest that he was physically assaulted or exposed to physical violence.

3. At one stage the landlord rang the police to enlist their assistance to evict the applicant but they refused to intervene.  Eventually the landlord escorted the applicant from the premises and drove him to a local hotel and arranged accommodation for him that night.  The landlord also delivered the applicant’s possessions and paid the cost of the night’s accommodation.  On the next day the applicant approached the Housing Trust of Tasmania and the charity Anglicare.  The latter arranged to pay the cost of one week’s accommodation in premises located by the Housing Trust.  At the stage of the hearing before the Tribunal the applicant was still residing in those premises.

4. The landlord had received a bond of $160 from the applicant and returned to him on the day of the eviction $40 in cash, being the difference between the arrears of rent and the bond moneys. 

5. In the hearing before the Tribunal, the applicant made allegations of collusion between Centrelink, the authorised review officer and the SSAT.  The Tribunal was not satisfied that those allegations had any credibility and I do not see any error in that conclusion. 

6. The substantive issue on which the applicant failed before the Tribunal was whether there had been an “extreme circumstance” within the meaning of sub-s (1)(a) and whether there had been “severe financial hardship” within the meaning of sub-par (1)(f)(i) of s1061JH.

7. It appears to have been accepted by the Department that the other criteria of s 1061JH(1) were established. The Tribunal said at pars 13-15:

   “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.

   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.

   I am unable to find that the applicant has left his former home in Mowbray because of an extreme circumstance, as section 1061JH(1)(a) requires.”

8. I see no error in the approach of the Tribunal.  The Tribunal properly took the examples given in the statute as simply a guide and not of course exhaustive of the circumstances which might constitute extreme circumstances.  That expression is not a technical term.  The OED defines the adjective “extreme” as:

   “presenting in the utmost degree some particular characteristic.”

9. The eviction of a tenant who does not pay rent is a normal and inevitable consequence and the Tribunal was entitled to find that it was not, in the relevant sense, an extreme circumstance.  Moreover, I think the Tribunal was entitled to look at the whole of the circumstances in which the applicant left his home.  These included the provision of alternative accommodation on that night and subsequently.  The net result is that the applicant was not rendered homeless and continued to receive his Social Security benefit. 

10. That latter aspect is relevant to the second issue which was an alternative ground for the Tribunal rejecting the applicant's claim, namely the finding that there was no severe financial hardship.

11. The evidence appeared to show that the applicant was in receipt of a regular disability support pension of $446.75 per fortnight and had $40 in cash.  There was no evidence of other assets or liabilities.  There was no evidence that the applicant was not able to provide for accommodation and the basic necessities of life so I find no error in the reasons of the Tribunal.

12. The appeal will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true coy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:            29 October 2002

Counsel for the Applicant	The Applicant appeared in person
Counsel for the Respondent:	D Wilson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 October 2002
Date of Judgment:	17 October 2002