Booker and Secretary, Department of Family and Community Services
[2004] AATA 936
•7 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 936
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/282
GENERAL ADMINISTRATIVE DIVISION ) Re MELVIN BOOKER Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date7 September 2004
PlaceSydney
Decision The decision under review by the SSAT dated 29 January 2004 is set aside, and the Applicant is found to be eligible for the Crisis Payment.
[SGD] Rear Admiral A R Horton AO
CATCHWORDS
SOCIAL SECURITY – crisis payment – applicant removed from premises by NSW police – applicant obtained alternate accommodation – applicant to meet criteria for crisis payment - claim not lodged within seven days – consideration as whether extreme circumstances exist – whether in severe financial hardship - discretion exercised over seven day clause – applicant found to be in extreme circumstances and suffering severe financial hardship – decision set aside - applicant eligible for crisis payment
Social Security Act 1991 – sections 39(1A),1061JH(1)and (2), 1061JL(1) 1061JM,
1061JU(1) and (2)
Acts Interpretation Act 1901 – section 15AD
REASONS FOR DECISION
REAR ADMIRAL A R HORTON AO 1. This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 29 January 2004, that affirmed a decision of a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) on 13 August 2003, that Mr Melvin Booker (“the Applicant”) was not eligible for Crisis Payment. The latter decision had been affirmed by an authorised review officer (“ARO”) on 7 October 2003.
2. At a hearing on 16 August 2004, Mr Booker was self represented. Ms Susan Mantaring, advocate, represented the Respondent. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975. The Tribunal also took into evidence a letter from Ms Gail Ritchie dated 18 July 2004 (exhibit A1), a letter from Mr Simon Carrigan, President of the Unanderra Conference of St Vincent De Paul Society, undated (exhibit A2), a photocopy of the Centrelink “Customer Charter” (exhibit A3), a photocopy of a document entitled “Crisis Payment: Who can get it?” from a Cenrelink booklet dated October 2002 (exhibit A4) and the Respondent’s Statement of Facts and Contentions (exhibit R1).
BACKGROUND
3. In the late evening of 2 June 2003, when Mr Booker was residing at the home of Ms Gail Ritchie at Figtree, the NSW police were called to the home, and Mr Booker was removed from the premises. He was taken to the Wollongong Police Station, and later charged with assault of the police. On leaving the Police Station, he made his way on foot to Wollongong Hospital for treatment of bruises to his ribs and left arm. This is confirmed by the Illawarra Area Health Service Accident and Emergency Discharge report (T5 p 15). Mr Booker left the hospital about 4 or 5 am and returned to the premises at Figtree where he resided for some days pending arrangement of alternate accommodation at Farmborough Heights, another suburb of Wollongong.
4. On 6 June 2003 he attended Centrelink Corrimal to obtain a statement of income necessary to gain financial assistance from the Department of Housing for the bond required for the Farmborough Heights rental. On 18 June 2003, he attended Centrelink Dapto to provide details of his new address (T7). On 9 July 2003 he spoke by telephone with a social worker who advised him of the availability of the Crisis Payment, but indicated that he may not be eligible as he had left his home at Figtree some four weeks previously (T8). Centrelink records show that Mr Booker attended Centrelink Dapto on 17 July 2003, the record stating “attended at 4.30pm stating that he fulfilled the criteria for a crisis payment. Advised that we were unable to help him at this time, however if he wished to return on the Friday (the next day) we would have a look at his situation….” (T9).A further note on 18 July 2003 refers to Mr Booker lodging a complaint with his local member, and states “I advised Brian from Jenny George’s office (local member) that it appears he is not eligible due to the time frame since the incident and when he has applied” (T10). On 25 July 2003, Mr Booker attended at Centrelink Warrawong to discuss his claim. The Centrelink record of the visit (T11 p 21) notes that a claim for crisis payment had not been lodged at that time, albeit the entry of 18 July 2003 seems to acknowledge, at least, an informal claim.
5. On 13 August 2003, a file note states that whilst Mr Booker “had been advised that he is not eligible, no claim had actually been lodged” (T13). The report then states that the author assisted Mr Booker to complete a claim (T12 p22 – p24), advised him that certain documents would need to be produced before the claim could be processed, and then stated “I would then reject his claim due to the 7 day criteria” and that the claim would then be referred to an ARO (T14). On or about 1 October 2003, Mr Booker formally sought a review of this decision, and on 7 October, Ms Cheryl Skinner, ARO, affirmed the original decision, providing advice as to the information she took into account, relevant extracts of the Social Security Act1991 (“the Act) and policy guidelines, and the reasons for her decision. On 29 January 2004, the SSAT affirmed the decision to reject Mr Booker’s claim for crisis payment (T2).
LEGISLATION AND POLICY GUIDELINES
6. Section 1061JH of the Act sets out the criteria for qualification for crisis payment:
”1061JH Qualification—extreme circumstances forcing departure from
home1061JH(1) 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.
Note: Examples of extreme circumstances that would qualify a person for crisis payment are the person's house being burnt down, or the person being subjected to domestic or family violence.
1061JH(2) A person is not qualified for a crisis payment in respect of an extreme circumstance if the Secretary is satisfied that the extreme circumstance is brought about with a view to obtaining a crisis payment.
The following sections of the Act are also relevant to an application for crisis payment:
“1061JL Need for a claim form
1061JL(1) A person who wants to be granted a crisis payment must make proper claim for that payment.
1061JM Form of a claim
1061JMTo be a proper claim, a claim must be in writing and must be in accordance with a form approved by the Secretary.
1061JU Amount of payment
1061JU(1) Subject to subsection (2), the amount of a crisis payment payable to a person is half the fortnightly amount at the maximum basic rate of the social security pension or social security benefit that is payable to the person.
1061JU(2) If a person is a CDEP Scheme participant, the amount of a crisis payment payable to the person is half the fortnightly amount at the maximum basic rate of the social security pension or social security benefit that the person is taken to be receiving under section 1188H.”
7. The Guide to the Social Security Law (“the Guide”) at 3.7.4.20 provides policy guidance. It confirms that all the criteria in the legislation must be met. Of particular relevance, the Guide provides some latitude in certain circumstances in respect of the interpretation of the seven days clause, describes “home” as the place of residence for the foreseeable future, and states that the customer cannot reasonably be expected to remain in, or return to, their home when his or her safety or well being is at risk. The Guide also states that if the person has to leave home because of a court order, this is not considered an extreme circumstance, and hence the person does not qualify for the Crisis Payment (T3).
EVIDENCE8. Mr Booker spoke to the circumstances which led to his removal from the home of Ms Ritchie at Figtree. He described Ms Ritchie as having a nervous anxiety condition, with mood swings and panic attacks. He described his relationship as at time personal, albeit that aspect was “dwindling”, but always as that of a tenant. On 2 June 2003, she was suffering from a panic attack and he was endeavouring to calm her down to no apparent avail. She telephoned her son, who lives locally, and on his arrival at the home, he telephoned the police. On their arrival, Mr Booker was told to leave the house, which he did. He was subsequently denied permission to go back into the house to retrieve his shoes, and was then assaulted by a policeman. He stated that at that point, the other two policemen, who had been in the police wagon, joined in the assault on his person. Mr Booker was taken to the police station and allowed to leave at about 2 am. His evidence was that no apprehended violence order was sought or issued. Nor did the police assist him to find alternate accommodation as was later claimed. In time, he was charged with assaulting the police, and in November 2003, he was found guilty, being placed on a good behaviour bond and fined $100.
9. The letter from Ms Ritchie (exhibit A1) states that Mr Booker was a lodger at the time, and was charged by the police with matters not related to the domestic incident with her. She is adamant that Mr Booker was not the perpetrator of domestic violence. The file note of 13 August 2003, previously referred to, notes that Mr Booker was advised that he would be required to prove to the SSAT, should he take that action, that he was the victim and not the perpetrator of the domestic violence (T13).
10. Following his treatment at Wollongong Hospital, and in the absence of any alternate accommodation and because he was still owed some days rent by Ms Ritchie, he returned to her home at Figtree later that morning. He stated that she did not want to let him in, but in the absence of alternate accommodation and because he was to move to new accommodation, allowed him to stay. This he initially did in the garage. Mr Booker described his physical condition at this time, and for some weeks after, as extremely painful, with difficulty breathing and moving because of bruises to his ribs. In response to the Tribunal, he stated that he had remained on medication, as prescribed by the hospital, for some weeks, and he found it difficult to sleep without it. He later saw a general practitioner to confirm the state of his injuries.
11. Mr Booker told the Tribunal that when obtaining the statement of income from Centrelink Corrimal on 6 June 2003, he informed that office that he had been assaulted by the police. A lease for new accommodation at Farmborough Heights was signed on 7 June 2003. The Respondent claims in exhibit R1 that Mr Booker moved into the new premises on or about the 13 June 2003, that is, he remained living at the home of Ms Ritchie at Figtree until that occurred. This date is not supported by the Centrelink file note of 18 June 2003 when Mr Booker advised his change of address. That note indicates only a change of address of 7 June 2003 (T7), and in evidence to the Tribunal, Mr Booker confirmed that as the date on which the premises became available and he was able to start moving his few possessions from Figtree.
12. Mr Booker has no car, and was reliant on his brother and others to assist with transport. That he had problems is confirmed in the letter from the St Vincent De Paul Society (exhibit A2), which states that the Unanderra Conference:
“ …was called for assistance to Mr Mel Booker on 26 June 2004.The Society members who visited Mr Booker found him in a state of crisis both financially and emotionally. Mr Booker, despite having found accommodation, was without essential items of furniture, had no food, and required help with transport of his few personal belongings.
Mr Booker was found to be in a fragile and emotional state. At the time he was hard pressed to hold a conversation without breaking down.
The Society gave him emergency assistance…”
13. Mr Booker was quite adamant that he commenced living at Farmborough Heights once the lease was signed. In the four days until that occurred (which he felt was reasonable given he had paid rent accordingly and in any event, had no other accommodation), and at times thereafter until he had some furniture at Farmborough, he ate occasional meals and sometimes stayed at Figtree. He indicated that he was able to do so because Ms Ritchie well understood that he was moving to new accommodation, and required he do so. In cross examination, he stated that the description in the decision of the SSAT that “he was able to remain residing in his previous premises at Figtree until he was ready to move into his new accomodation” (T2 p10) overstated the situation.
14. Mr Booker expressed fear that at any time he was at Figtree, a panic attack by Ms Ritchie might again lead to police involvement, and hence he considered he was in extreme circumstances for that period. In effect, he argued that for that reason alone, he could not return on a permanent basis to Figtree, even had Ms Ritchie considered that appropriate. Because of his removal by the police, it was unreasonable to expect him to be able to remain in that house.
15. Mr Booker gave evidence that when he advised Centrelink Dapto of his new address on 18 June 2003, he was given advice as to organisations that might help him. In his view, it was not until 9 July 2003, when he spoke by telephone with a social worker that he became aware of Crisis Payment, and the requirement to make a claim within seven days, albeit that he was led to believe that he would qualify in all other areas. Whilst an appointment was made for 25 July 2003, he understood at that time that his claim had informally started from those discussions on 9 July 2003. Subsequent events were as indicated in paragraphs four and five above.
16. Mr Booker described his current situation as being one of “constant poverty”, and of having no fear at his residence at Farmborough heights. He was no longer in financial or personal crisis as he had been in 2003. At that time, he was financially impoverished, and following the incident at Figtree, whilst he was not in fear of mortal danger, he had intense fear of another telephone call to the police. He considered he had not been provided with proper and timely advice by Centrelink of the availability of Crisis Payment, and indeed, the document relating to the need for special help and that payment (exhibit A4) was not readily available.
17. He submitted that with the exception of the seven day clause, his circumstances met the conditions in the legislation for Crisis Payment. In respect of that clause, he considered that Centrelink staff should have informed him of the requirement on his visits of 6 June 2003 when requesting an income statement, and on 18 June 2003 when advising of his new address. He referred the Tribunal to the Centrelink pamphlet (exhibit A4), which does not refer to a seven day requirement to submit a claim.
18. The position of the Respondent was that all criteria in section 1061JH(1) of the Act must be met. The Respondent did not consider the circumstances of Mr Booker met the “extreme” criteria in subparagraphs (a) and (b). His relationship as a tenant, a situation he had referred to, could not be considered in that vein, as the landlord had the right to ask him to leave. The Respondent did suggest that had the relationship with Ms Ritchie been substantially of a personal and ongoing relationship, than there might have been more consideration as to whether it met the extreme circumstances.
19. The Respondent further submitted that Mr Booker was able to return to the premises at Figtree, and the evidence as to when he left is not conclusive. The Respondent accepted that Mr Booker met the criteria in (c) in respect of establishing a new home, and (d), (f) and (g), these referring to the person being in Australia, in severe financial hardship and meeting the previous claims criteria.
FINDINGS20. Three subparagraphs in section 1061JH(1) of the Act have to be considered in this matter, Mr Booker having met the conditions of the remainder. The emphasis by Centrelink in the early stages following the domestic incident and involvement with the police at Figtree on 2 June 2003 was on Mr Booker’s inability or failure to meet the seven day criteria for lodgement of his claim for Crisis Payment, and the time elapsed since he moved to alternate accommodation. That is supported by the documented file notes and the oral evidence of Mr Booker.
21. The legislation is quite specific. However, the pamphlet entitled “Crisis Payment: Who can get it?” (exhibit A4) issued by Centrelink which was obtained with some difficulty according to Mr Booker as it was not available at all Centrelink offices in his area, makes no mention of the seven day clause. It is accepted that individuals may well be not aware of the existence of, or detail in, legislation, and that unawareness is generally not considered as an excuse for failure to conform to that legislation. However, and notwithstanding that Mr Booker evidently was not aware of the existence and possible availability of the Crisis Payment, the pamphlet provided by Centrelink fails to identify that a claim must be lodged within seven days of the incident or occasion of suffering extreme circumstances. Further, whilst the claim for Crisis Payment was not formally lodged until 13 August 2003, the evidence is that Mr Booker understood that his informal discussions had been accepted as a claim, which, as noted earlier, is implied in the file note of 18 July 2003 (T20). In the circumstances, the Tribunal is of the opinion that discretion can be exercised in the case of Mr Booker in respect of this criteria, and does so.
22. Section 1061JH(1) defines “extreme circumstances” in the context of causing a person to have left, or be unable to return to, his or her home, it being unreasonable to expect the person to remain in, or return to, the home. The note accompanying that section, which the Tribunal accepts must be read as part of the section in accordance with section 39(1A) of the Act, provides examples of “extreme circumstances”. The Respondent did not argue that these are exhaustive, and section 15 AD of the Acts Interpretation Act 1901 supports the contention that they are not exhaustive.
23. The Respondent submitted that a relationship of landlord and tenant would not meet the extreme criteria, whereas one of a more personal relationship may. In this matter, Mr Booker referred to his relationships with Ms Ritchie meeting both criteria, but he did give evidence that the personal relationship was diminishing. In that sense, he was more properly in a situation of facing up to a move to alternate accommodation. However, on the evening in question, and on his evidence, he was still in some relationship with Ms Ritchie, when circumstances got out of hand and the police were called. Mr Booker argues that resulting from his removal from the home of Ms Ritchie, and notwithstanding his subsequent return to that home for some time thereafter, that return reflected his parlous financial position and the time taken to effect alternate accommodation.
24. Mr Booker submitted that it was unreasonable to expect him to remain at Figtree, given that he had already come to the notice of police and been removed from the premises. His view, which the Tribunal accepts, was that he was in fear that at any time, a further call to the police would have serious consequences for him. That is, and putting to one side the wishes of Ms Ritchie, which are not in themselves before the Tribunal, Mr Booker was unable to return to her home on any reasonable permanent basis. Even if he could, it was unreasonable to expect him to remain in that home, or to return on a reasonable permanent basis, given the implications of a further police involvement.
25. In accepting the arguments of Mr Booker in respect of “extreme circumstances”, the Tribunal also takes account of the financial circumstances of Mr Booker at that time. His evidence is that he had no financial ability or assets to obtain alternate accommodation in the immediate short term. Whilst the report from the St Vincent de Paul Society refers to a request for assistance some three weeks later, it does describe Mr Booker as being in a “state of crisis both financially and emotionally”, without essential items of living, no food and in need of help. It further describes him as being in a “fragile and emotional state”.
26. Taking all evidence into consideration, the Tribunal finds it appropriate to exercise discretion in the matter of the seven day clause relating to the claim for Crisis Payment, and finds that his situation was such immediately following the domestic dispute on 2 June 2003 that he meets the criteria of “extreme circumstances”, and other relevant criteria as defined in section 1061JH(1) of the Act.
27. The decision under review by the SSAT dated 29 January 2004 is set aside, and the Applicant is found to be eligible for the Crisis Payment.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO
Signed: M. Di Condio
AssociateDate/s of Hearing : 16 August 2004
Date of Decision : 7 September 2004
Representative for the Applicant: Self Represented
Advocate for the Respondent : Ms S Mantaring
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