Budd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 962

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 962

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3009

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Pamela Budd

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date24 November 2010

PlaceSydney

Decision The decision under review is AFFIRMED.

................[sgd].........................

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY:  Application for Crisis Payment alleging inability to remain in home. Home undergoing repairs and alternate accommodation offered by NSW Department of Housing.  Continued to be paid Disability Support Pension.  Decision refusing claim affirmed.

LEGISLATION

Social Security Act 1991, Section 1061JH.

CASES

Arcibal v Secretary, Department of Family and Community Services (2002) 36 AAR 53.

REASONS FOR DECISION

24 November 2010 M D Allen, Senior Member            

1. By application made 20 July 2010, the Applicant sought review of a decision of the Social Security Appeals Tribunal (“SSAT”) made 7 July 2010, affirming a prior determination that the Applicant was not entitled to Crisis Payment, pursuant to Section 1061JH of the Social Security Act 1991 (“SSA”).

2. Section 1061JH SSA reads:

“(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 based on:

(i)  the qualifications set out in this section; or
(ii)  the qualifications set out in section 1061JHA (remaining in home after removal of family member due to domestic or family violence).

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.

(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.”

3.      At the request of the Applicant this matter was dealt with “on the papers”, there being no appearance by either party to this review.

4.      There is no dispute that the Applicant has had a long running dispute with the NSW Department of Housing regarding the suitability, in particular the state of repair, of her accommodation.

5.      I had before me numerous documents evidencing her difficulties with the Department of Housing.  Without referring to all of the documents, I note reports from Clinical Psychologists Dr Barker and Ilan Cohen, General Practitioner Dr Goodman, Senator John Faulkner and numbers submissions by her solicitors Messrs Creagh and Creagh.  In addition I note a lengthy submission by the Applicant received at the Tribunal on 25 October 2010.

6.      On 25 February 2010 the NSW Consumer Trader and Tenancy Tribunal (“CTTT”) made the following orders in favour of the Applicant:

“1. The Tribunal orders that the respondent(s): Department of Housing 223-239 Liverpool Road ASHFIELD NSW 2131 Australia is to carry out the following work on or before 25-Mar-2010 in a proper and workmanlike manner.

Details of work order:

The respondent is to inspect the applicant’s leased premises and undertake such repairs as may be required.  While the inspection and the repair work is being undertaken the respondent is to arrange temporary accommodation for the applicant at the Gemini Motel, Belmore Road Randwick.

The respondent has no liability for the cost of any telephone calls made by the applicant during the period of temporary accommodation and is not required to provide cabcharge vouchers to the applicant.  The respondent is to provide funds for direct travel to the motel and for direct travel from the motel to her unit.

The applicant is to leave the keys to her apartment with an appropriate person prior to temporary accommodation being arranged.”

7. To qualify for a Crisis Payment, Section 1061JH SSA requires that a person must be in financial hardship and has left or cannot return to their home because of an “extreme circumstance”.

8.      “Extreme circumstance” is not defined in the SSA although examples are given in the note to subsection (2) of S1061JH. Such notes is taken to be part of the subsection (see Ss39(1A) SSA). The examples listed are not exhaustive (see Acts Interpretation Act 1901 S15AD).

9.      In  Arcibal v Secretary Department of Family and Community Services (2002) 36 AAR 53, Heerey J at page 55 stated inter alia::

“…I think the Tribunal was entitled to look at the whole of the circumstances in which the Applicant left his home, these include 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. 

The 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.”

10.     Although the Applicant has real and ongoing issues with the NSW Department of Housing regarding the accommodation offered to her, given the order made by the CTTT and the fact the Applicant continues to be paid a Disability Support Pension, it cannot be said that the Applicant has left or cannot return to or remain in her home because of extreme circumstances nor is the Applicant in severe financial hardship.

11.     The decision under review is AFFIRMED.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .....................[sgd]................................
  K. Lynch, Associate

Date of Hearing on the Papers      19 November 2010
Date of Decision        24 November 2010