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

[2008] AATA 596

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 596

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/5614

GENERAL ADMINISTRATIVE DIVISION		)
Re		CRAIG CARMODY

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date10 July 2008  

PlaceSydney

Decision The decision under review is set aside. The Applicant is entitled to the Australian Government Disaster Recovery Payment.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Australian Government Disaster Relief Payment – meaning of adversely affected – rendered uninhabitable – no damage to principal residence – damage not a requirement for payment – decision under review is set aside.

Social Security Act 1991 – ss 1061K, 1061L, 1061L(2)

Social Security (Australian Government Disaster Recovery Payment) Determination              (No 4) 2007

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

REASONS FOR DECISION

10 July 2008  Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1.The decision of the Social Security Appeals Tribunal (‘SSAT’) dated 4 October 2007, which affirmed a decision by a Centrelink authorised review officer (‘ARO’) to not pay the Australian Government Disaster Recovery Payment (‘AGDRP’) to Mr Carmody.

BACKGROUND

2.In June 2007, the Central Coast and Hunter regions of New South Wales were subjected to severe storms and flooding.  As a result, in June 2007, the AGDRP was activated by the then Minister for Families, Community Services and Indigenous Affairs to assist people who had been adversely affected.

3.On 26 June 2007, Mr Carmody lodged a claim for the AGDRP in respect of himself and his wife.  The claim was rejected, but on review his wife was considered to be eligible for AGDRP on the basis of her being evacuated for more than 48 hours.  Mr Carmody’s claim was AGDRP refused on the basis that his principal home was not damaged in the storm and that he chose not to evacuate home when he was advised by the State Emergency Service (‘SES’) and other authorities to do so.

4.That decision was affirmed on internal review and by the SSAT. 

LEGISLATIVE FRAMEWORK

5.Qualification for AGDRP is set out in S1061K of the Act. To qualify a person must be “adversely affected” by a major disaster.

6.Pursuant to section 1061L of the Act 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. On 10 June 2007, the Minister made a determination under s 1061L(2): Social Security (Australian Government Disaster Recovery Payment) Determination (No 4) 2007.  Schedule 1 of the Determination identified the major disaster as ‘Storm damage and associated flooding that began on 7 June 2007 in the Central Coast and Hunter regions of New South Wales’.

7.Schedule 2 of the Determination specified that a person was adversely affected by this major disaster if:

‘As a direct result of the major disaster mentioned in Schedule 1:
(a) the person is seriously injured and requires hospitalisation for at   least  48 hours, or
(b) the person’s principal place of residence has been destroyed or rendered uninhabitable for a period of 48 hours or more’.

ISSUE FOR THE TRIBUNAL

8.As there was no contention that Mr Carmody suffered a serious injury requiring hospitalisation as a result of the major disaster, the remaining issue was whether his principal place of residence had been destroyed or rendered uninhabitable for a period of 48 hours or more.

EVIDENCE

9.I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents").

10.Mr Carmody provided me with the notice he was given by the State Emergency Service (SES) timed and dated 1.45 pm 10 June 2007.

11.On 26 June 2007, Mr Carmody wrote in his AGDRP claim form:

“had to evacuate(d) our livestock, could not get true information on flood from SES, Police, Fire Brigade. Then moved Electrical appliances and checking on Mary that she was all right, then Police came (sic) said the river had come over. So I moved out Bed + cloths (sic).”  

12.Mr Carmody told me that on the Saturday (11 June) the police had come to his property and said that the river had breached its banks about 3-4 kms away and that it was ‘up to [him]‘ if they evacuated at that time.  His father, who has lived in the area all his life, advised him to get out while they could, because from his experience, if the levee were to break, the area would flood rapidly.  Mr Carmody’s wife and son left during the day on Saturday, taking with them only clothing for about 3-4 days.  People in the area were in ‘total panic’.  He decided to stay to pack up.  He moved his brood mares to his parents’ property, which was about five minutes away but on higher ground.  Several friends came round to help him move the family’s possessions.  They took three mattresses, three televisions, the fridge, freezer, stereo and all electrical appliances.  They even took CDs and glassware.  In fact, all that was left was the bed frames and a bit of food in the kitchen, and some kitchenware.  The place was ‘a bare shell’.

13.Despite the help, it took all day.  He had no dinner.  He had intended to go to his parents’ but fell asleep on the floor in front of the combustion burner with only a blanket.  He was exhausted, having been up all Friday night as well because of the storm. 

14.On Sunday morning he disconnected the motors of his farm machinery which  took a couple of hours.  Then he received the notice from the SES, telling him to evacuate by 8:00 PM that night.  He kept listening to a transistor radio (which he had borrowed from his mother) so as to hear the flood updates.  People were milling around waiting to see what would happen.  There were even sightseers.

15.Heeding the SES advice, he went to his parents and slept there on Sunday night.  On Monday he returned to the property to see what was happening and learned that the floodwaters were banking up ‘around the corner’.  He returned to his parents for Monday night.  On Tuesday his friends helped him move back into his home.

16.As it transpired, the property was unaffected by floodwaters, but rain damaged the mattresses and some cupboards in the move.  Some food was also spoilt.

17.He did not know if the electricity was unavailable in his absence as he had turned it off, as advised by the SES.  At the time he left there was still running water and the septic system had not flooded.

CONSIDERATION OF THE EVIDENCE

18.The Secretary contended that Mr Carmody was not adversely affected by the disaster in that his principal place of residence was not rendered uninhabitable.  It was noted that there was no damage to the house and that the water damage to his furniture was caused by the tarpaulin not being secured properly when he moved them to his parents’ house in the rain.  The electricity was not cut off and the spoiled food was caused by his forgetting about them when he put them in someone’s car trunk. 

19.I was referred to the Guidelines for payment of AGDRP.  Centrelink submitted that Mr Carmody’s circumstances do not fall within any scenarios listed in the Guidelines.  Further, in order for the principal place of residence to be uninhabitable, there must have been evidence of a loss of power, water and sewerage.  In this case, none of these happened apart from some water damage.

20.Whilst I am not bound to apply policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

21.The Guidelines set out examples of circumstances which would result in either successful or unsuccessful claims.  According to the Guidelines where a claimant is evacuated for more than 48 hours and returns to undamaged premises, no AGDRP is payable.

22.The Guidelines were formulated, it appears, within just over a week of the storm of 7 June 2007, in an endeavour to clarify what might be accepted.  No doubt, they were of great assistance to Centrelink staff to quickly evaluate the many AGDRP claims.  They however, go far beyond the simple requirement of the Determination, namely that the person's principal place of residence must be ‘rendered uninhabitable’ for a period of 48 hours or more.

23.I note for interest that, by comparison, the relevant Determination in relation to the January 2008 floods in Mackay and the Whitsunday regions (Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 1)) specified that to be ‘adversely affected’ a claimant’s principal place of residence had to have actually been damaged, and that “damaged” is defined. One might speculate that this change in the focus of the 2008 Determination from the 2007 Determination was to overcome the problem which now arises due to lack of precision in drafting the earlier Determination.

24.Regrettably, “rendered uninhabitable” is not defined in the Determination.  The Oxford English Dictionary defines ‘inhabitable’ as “Not habitable, not adapted to human habitation, uninhabitable”.

25.There was essentially no dispute that from at least the Saturday Mr Carmody’s house was under threat of being flooded.  On his evidence the police were at that time raising the possibility of the need to evacuate.  Mr Carmody took advice from his father who knew the area well.  Prudently, he sent his wife and son elsewhere while he and friends removed virtually all the contents of the house.  As a result it was ‘a bare shell’.  Mr Carmody fell asleep on the floor, exhausted on Saturday night and, in accordance with the SES instruction, vacated the property on Sunday and remained away until Tuesday, a period of 48 hours.

26.I accept Mr Carmody’s evidence that he vacated the property by order of the SES.  The evacuation was not negotiable.  In that respect, I consider the house to have been ‘uninhabitable’ because he was not permitted to remain there.  That the property was subsequently found to have been undamaged by floodwaters was merely fortuitous.  The Determination, as I have discussed above, has no such requirement.

27.Further, while unnecessary for me to decide in this matter, it is arguable that, from the time all the family’s belongings were moved out, the property was uninhabitable. 

DECISION

28.The decision under review is set aside. The Applicant is entitled to the Australian Government Disaster Recovery Payment.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER.

Signed:   ………[sgd]……………………………..………………
  Associate

Date of Hearing  30 June 2008
Date of Decision  10 July 2008
Appearance for the Applicant                   Self-represented
Advocate for the Respondent  Ms S Mantaring,
  Centrelink Legal Services