Dowker and Secretary, Department of Social Services (Social services second review)
[2016] AATA 763
•25 August 2016
Dowker and Secretary, Department of Social Services (Social services second review) [2016] AATA 763 (25 August 2016)
Division
GENERAL DIVISION
File Number
2016/1340
Re
Lee Dowker
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Britten-Jones
Date 25 August 2016 Date of written reasons 30 September 2016 Place Adelaide The decision under review is affirmed.
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Senior Member Britten-Jones
CATCHWORDS
SOCIAL SECURITY - application for crisis payment - claim for forced departure from home - whether applicant meets qualifications for crisis payment - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), ss 19D, 1061JH
CASES
Arcibal v Secretary, Department of Family and Community Services [2002] FCA 1313
Dowker & Anor v Paoletti [2015] HCA Trans 145
REASONS FOR DECISION
Senior Member Britten-Jones
30 September 2016
This is an application for a crisis payment under s 1061JH of the Social Security Act1991 (the Act). On 26 June 2015 Ms Dowker lodged a claim for a crisis payment, which was rejected by Centrelink on 1 July 2015. This is an application for a review of a decision made by the Social Security and Child Support Division of the Administrative Appeals Tribunal on 16 February 2016. That decision affirmed the Centrelink decision of 1 July 2015, and a decision of an authorised review officer dated 23 September 2015, both of which rejected the claim for crisis payment.
The issue that is before me today is whether Ms Dowker is entitled to a crisis payment. The relevant legislation at s 1061JH(1) provides that 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 circumstances occurred; and
(f)on the day on which the claim is made:
(i) the person is in a severe financial hardship (see s 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….
There is a note to the legislation that provides for examples of an extreme circumstance which would qualify a person for a crisis payment, namely the person’s house being burnt down or the person being subjected to domestic or family violence.
In order to qualify for a crisis payment, Ms Dowker must satisfy all the criteria set out in s 1061JH(1). There is no dispute with respect to subsections (b), (c), (d), and (g). Subsection (e) is satisfied because the claim is deemed by s 13 of the Act to have been made on 26 June 2015, when contact was first made with Centrelink, which is within the required seven days. This is accepted by the Secretary.
Ms Odgers, as representative of the Secretary, submitted that there was insufficient written evidence to make a finding that Ms Dowker was in a severe financial hardship under s 1061JH(1)(f)(i). Severe financial hardship is defined in s 19D(3) of the Act. I am satisfied by the oral evidence given by Ms Dowker that at the relevant time in June 2015 she had no savings and minimal liquid assets, consisting of her car and some personal effects, and therefore subsection (f) of s 1061JH(1) is satisfied.
This leaves the critical issue for determination, which is whether Ms Dowker left her home in June 2015 because of an extreme circumstance, as required by s 1061JH(1)(a). There is no definition of extreme circumstance, but there is the note referred to above. Ms Dowker has not been subjected to any circumstances in the nature of the examples provided. Those examples, however, are not exhaustive.
Ms Dowker was evicted from her house after the landlord obtained an order for vacant possession. I pause to consider an authority dealing with a similar factual situation. That authority is the decision of Heerey J in Arcibal v The Secretary, Department of Family and Community Services [2002] FCA 1313. In that decision the applicant for the crisis payment had been evicted for failing into arrears of rent. The tribunal had said:
…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…
At paragraph 8 of the Arcibal decision, Heerey J said that he saw no error in the approach of the tribunal. He said [at 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.
It is necessary for me to consider the whole of the circumstances in which Ms Dowker left her home in June 2015, and I make the following findings of fact based on the oral evidence of Ms Dowker and the documents that were admitted into evidence.
Ms Dowker and her partner had lived at a property at Lewiston for about 15 years. In 2013 they were having difficulties with the mortgage, and the bank was putting pressure on them to sell it.
A local man offered to buy the property and to allow them to stay on as tenants. There is a dispute, which is ongoing, as to what was promised by him at the time of the sale, but I do not need to resolve that dispute. The property was sold to the local man, and a 12-month lease was granted from May 2013. Later in 2013 disputes arose with the purchaser of the house. He claimed damages against them, and tried to evict them for being in arrears of rent, which Ms Dowker denied.
After the 12-month lease expired the owner refused to renew the lease, but Ms Dowker stayed on with her partner whilst the owner sought orders from the court for vacant possession of the property. There was a trial in the District Court, then an appeal to the Full Court. An order for vacant possession was granted, but stayed to give Ms Dowker an opportunity to appeal to the High Court.
An application for a stay of execution of the order for vacant possession was brought in the High Court by Ms Dowker. It was heard by the Honourable Justice Nettle on 15 June 2015. Ms Dowker and her partner were still living at the Lewiston property at that time. Ms Dowker represented herself, so too did the owner of the property.
Nettle J refused the application for a stay. In his ex tempore reasons he refers to the application for special leave to appeal from the judgment, and the orders of the Full Court of the Supreme Court of South Australia, which were given on 13 April 2015. The Full Court had dismissed an appeal against orders of a judge of the District Court for vacant possession of the property of which Ms Dowker and her partner were in possession as lessees.
Nettle J noted that the District Court and Full Court judgments were each without prejudice to the applicant’s right to bring a further proceeding, alleging that they had been induced by misleading and deceptive conduct to sell the property, and to take a lease back for a period of at least 24 months. He said that it appeared from affidavit evidence filed in support of the application, and from what he had been told by Ms Dowker, that it was intended to institute some such proceeding, but it had not yet been instituted as at that date. Nettle J concluded as follows:
As at present advised, I consider that the chances of the applicants succeeding in their application for special leave to appeal are not particularly good. The grounds of appeal do no more than repeat the essence of the argument which they advanced before the Full Court and stress the applicants’ serious states of ill-health and straightened economic circumstances…
Further Nettle J said:
More significantly, however, even on the applicants’ own case, at least as it is recorded in the Full Court’s reasons for judgment, the applicants’ agreement with the respondent went no further than that they could remain in possession as tenants for at least 24 months from the date of 9 July 2013. It therefore appears that they have now been in possession for almost the whole of the time upon which they agreed. Thus, even if the applicants were successful in their application for special leave to appeal, and succeeded in the appeal, they would still be required to vacate the property.
Nettle J was not persuaded to grant a stay, and refused the application. That order was made on 15 June 2015. Four days later, on Friday, 19 June 2015, the owner, with the court bailiff and police, attended at the Lewiston property and Ms Dowker and her partner were forced to leave. This was a traumatic experience. They barely had time to gather some of their possessions, which included 10 dogs that lived with them.
They left the premises and slept in their car for three nights before going to stay at the house of a family member at Parafield Gardens. They stayed there for two weeks. Whilst staying at Parafield Gardens, Ms Dowker first contacted Centrelink. On 1 July 2015 she spoke to Centrelink and her claim for a crisis payment was rejected. It is recorded by Centrelink that Ms Dowker said that she was able to stay with a friend at present, that must have been a reference to the granddaughter’s mother, and staying at the Parafield Gardens house.
She also said that she had the assistance of the SA Housing Trust, and had been given a bond. I understand that to be a reference to the Housing Trust providing a bond and two weeks’ rent in advance on the basis that Ms Dowker was able to find suitable accommodation with the Housing Trust. However, that did not happen. Ms Dowker told Centrelink on 1 July 2015 that she needed to live in a rural area because of her animals, and that therefore there were not many properties that were available. It does appear that Ms Dowker and her partner have had significant difficulties in finding a property suitable for their needs, which includes the accommodation of their 10 dogs, but also to be near their doctor and other medical facilities, given some of the conditions that Ms Dowker currently suffers.
Ms Dowker says that the extreme circumstance was being evicted from the Lewiston property without notice. It is not correct to say that the eviction was without notice. The owner and landlord had not exercised any self-help remedies when the lease expired after 12 months in May 2014. In fact, there were lengthy court proceedings in which Ms Dowker was unsuccessful at trial, and on appeal, and ultimately in the High Court with respect to her stay application which was refused.
I find that Ms Dowker did in fact have considerable notice. She must have been aware that it was likely that the landlord would enforce his rights soon after the hearing on 15 June 2015 when she failed to obtain a stay. She must have been aware that it was likely that a bailiff or some other enforcement authority would attend to evict her from her property, which is what did happen on 19 June 2015.
There is no doubt that what followed for Ms Dowker and her partner was very difficult. However, at the time that she made the application for crisis payment, she was living in the house at Parafield Gardens, and she had spoken to the Housing Trust who had offered her assistance so as to gain accommodation.
Later it turned out that she was not able to find any accommodation. She only stayed at the Parafield Gardens property for two weeks, and thereafter her evidence is that she spent about nine months living out of her car with her partner, which significantly exacerbated numerous medical conditions that she suffered. No doubt this period of nine months was extremely traumatic and difficult for Ms Dowker, but I do not find that it constituted an extreme circumstance in terms of the Act.
Ms Dowker gave evidence that she was hospitalised in October 2015, for cellulitis, for two weeks, and that both she and her partner have suffered numerous other medical conditions which she says were exacerbated by having to live out of her car for such a long time. Eventually Ms Dowker and her partner did find accommodation at another property in Kingston, and they have been renting there from about March of 2016, and it would appear that a renewal of that contract for lease is likely to occur.
Nevertheless, the period in between was a difficult time for Ms Dowker and her partner. The difficulty in finding accommodation was made worse because of the need to accommodate the 10 dogs, which necessitated some sort of rural accommodation. A further constraint was Ms Dowker’s desire to find a property near her doctor at Virginia. Those circumstances seemed to result in that long period with no accommodation.
None of these facts, albeit very difficult for Ms Dowker, establish an extreme circumstance that caused her to leave the Lewiston property. The reason she had to leave the Lewiston property is because there was a court judgment awarded against her. Ms Dowker exhausted all avenues of appeal from that initial decision in the District Court, and she was able to stay at the Lewiston property whilst she took that decision on appeal to the Full Court, and eventually to the High Court.
Ms Dowker has not satisfied the criteria in s 1061JH(1)(a) with respect to an extreme circumstance. It is on that basis that I refuse the application for review, and I affirm the decision under review.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones ......................[Sgd]............................................
Administrative Assistant
Dated 30 September 2016
Date(s) of hearing 25 August 2016 Applicant In person Advocate for the Respondent Ms L Odgers Solicitors for the Respondent Department of Human Services
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