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

[2008] AATA 864

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 864

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6323

GENERAL ADMINISTRATIVE DIVISION        )

ReLYLE NORMAN GLEESON

Applicant

AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

TribunalDr J Campbell, Member

Date26 September 2008

PlaceGosford

DecisionThe decision under review is affirmed.

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

Dr J Campbell
  Member

CATCHWORDS

SOCIAL SECURITY – Australian Government Disaster Recovery Payment – adversely affected – rendered uninhabitable – guidelines to determine qualification for Australian Government Disaster Recovery Payment – decision under review affirmed

Social Security Act 1991 - ss 36, 1061K, 1061L

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

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

REASONS FOR DECISION

26 September 2008	Dr John Campbell, Member
summary

1.      Mr Gleeson is a 56 year old man.  He has been receiving disability support pension payments since 1989.  The conditions from which he suffers includes headaches and sinus problems, short-term memory loss, together with anxiety and depression for which he receives medication, namely Zoloft.

2.      Mr Gleeson has lived at the same address in Umina, New South Wales since 1994.  The house is a two bedroom home of fibro-tile construction.  There is one bathroom, with the house having been constructed more than 40 years ago.

3.      On 7 June 2007, a significant storm swept through the area, and continued over the following four days.  Mr Gleeson was caring for his 11 year old son on the long weekend, as part of shared care arrangements with his ex-wife, the divorce having occurred in 1999.

4.      In the afternoon of 8 June 2007, the electricity to the house was cut off.  After waiting for a period to see whether the power returned, Mr Gleeson elected to leave the house with his son, to seek refuge with a friend, who had a generator.

5.      The primary reason detailed by Mr Gleeson for leaving the house was the loss of electricity.  Mr Gleeson and his son did not return to the house until the following Wednesday morning after the power had been restored.  Mr Gleeson had, during the period he was away from the house, returned on a number of occasions to ascertain whether the power had been restored, and the extent of damage to the house.  Mr Gleeson observed that on either the Saturday and/or Sunday during one such visit, that water was dripping from the ceiling at a fast rate over the toilet in the bathroom.  Mr Gleeson established that the source of the water inflow was from broken roof tiles, with the roof damage having been caused by a neighbour’s falling tree (branch).  Mr Gleeson also noted that his refrigerator and freezer were rendered inoperative by the loss of electricity caused by the storm and had to be dispensed with.

6.      On 10 June 2007, the Minister, as a consequence of the devastation caused by the Central Coast/Hunter storms and floods, activated the Australian Government Disaster Recovery Payment (“payment”) to assist people who had been adversely affected as a direct result of storm damage and associated flooding.

7.      Mr Gleeson lodged a claim for payment on 14 June 2007 (T3), in which he detailed that he had left the house on 8 June 2007 because the fridge and freezer had no power and did not work after power was restored.  Further, Mr Gleeson detailed that he had no edible food for two days and returned to his home on 14 June 2007.

8.      On 15 June 2007, Centrelink rejected Mr Gleeson’s claim on the basis that he was not “adversely affected”, there being “no flood damage” (T4).

9.      Mr Gleeson lodged a further claim dated 29 July 2007, in which he detailed the home was uninhabitable because of water leaking into the house, because of broken roof tiles and loss of food and medication as a consequence of the loss of his fridge and freezer.  Mr Gleeson also stated that he had to stay with his brother until the roof was repaired, fridge and freezer bought and further food and medication obtained (T5).

10.     On 16 August 2007, after further enquiries were made of Mr Gleeson concerning the inconsistencies between the two claims, the original decision-maker affirmed the decision (T7).

11.     Mr Gleeson provided to Centrelink photographs of the damage to the roof and ceiling of the bathroom, together with a statutory declaration dated 24 August 2007 (T10, T11) in which he indicated that the reason why he left with his son on 8 June 2007 was to do with his concern of an electrical fire arising from the water in the bathroom light fittings when the power was restored.  Further, Mr Gleeson noted that when he returned to the house on Monday, 11 June 2007, the lights were working, but not the fridge and freezer, with the latter situation causing him to stay away until he was able to borrow a refrigerator.

12.     On 18 September 2007, an Authorised Review Officer (ARO) affirmed the decision that Mr Gleeson did not qualify for payment (T13).  The decision was reviewed and affirmed by the Social Security Appeals Tribunal (SSAT) in the decision dated 28 November 2007.

issue

13.     The relevant issue in this matter is:

§Was Mr Gleeson adversely affected by a major disaster, in so far as his principal place of residence was rendered uninhabitable for a period of 48 hours or more?

consideration and findings

14.     Mr Gleeson was anxious at the hearing and appeared stressed by the hearing process.  It was also evident that Mr Gleeson seemed unaware of options and remedies available from his house insurers in relation to the roof damage and fusion of his electrical items.  Mr Gleeson was clearly unaware of possible options in relation to the damage to the roof by a neighbour’s tree, with his fixation being on the $1,000 insurance excess.

15.     I would note that Mr Gleeson stated that he had not thought to turn the power off at the main prior to leaving the house on 8 June 2007.  Further, while I note the variation in content between his first and second claim, and indeed also in his evidence given at the hearing, that the water was dripping into the bathroom before he left the house late in the afternoon of 8 June 2007, the only inference I draw is that Mr Gleeson, because of his stress and anxiety, finds it easy to become confused over detail, with memory of such detail at times distant.

16.     Following consideration of all the material, I find that Mr Gleeson and his son left the house in the late afternoon of 8 June 2007.  The reason for him leaving the house was the absence of power.  I would conclude that he became aware of the roof damage on either 9 or 10 June 2007, when returning to see whether the power had been restored.  I further conclude that he became aware that his refrigerator and freezer were not working on Monday, 11 June 2007, when he returned and power had been restored.  I find that he was away from the house between 8 June 2007 and 13 June 2007, being a period of five days.

17.     Mr Gleeson also described his concerns about the effects of water being in the light fittings of the bathroom.  Mr Gleeson was and remains particular in stating that the remainder of the house was unaffected by the storm.  Mr Gleeson has also provided material from two electricians concerning the state of the wiring in his home and the potential for an electrical mishap (Exhibit A1).  I note that such arises from the age of and technology used in the wiring process.

18.     In addressing the necessary legislative requirements to qualify for the payment, I observe the following relevant issues:

(a)Section 1061K(1) of the Social Security Act1991 (“the Act”) defines the criteria to qualify for payment, with s 1061K(1)(c) detailing the requirement that the “person is adversely affected by a major disaster”;

(b)Section 36 of the Act defines the circumstances in which the Minister may declare an event a major disaster. I note in this situation the Minister did declare the Hunter and Central Coast storms and flooding a major disaster on 10 June 2007 (Schedule 1, Social Security (Australian Government Disaster Recovery Payment) Determination 2007 (No. 4)) (“the Determination”);

(c)Section 1061L(2) of the Act provides for the Minister to determine in writing, the circumstances in which persons are to be taken to be “adversely affected” by a major disaster; and

(d)Schedule 2 of the Determination dated 10 June 2007 (referred to in (b) above) lists the applicable Adverse Circumstances to be considered to determine whether a person had been adversely affected by the storms and associated flooding that began on 7 June 2007 in the Central Coast and Hunter regions. These are:

(i)the person is seriously injured and requires hospitalisation for at least 48 hours;

(ii)the person’s principal place of residence has been destroyed or rendered uninhabitable for a period of 48 hours or more.

19.     I also observe that the Respondent established guidelines for this major disaster to assist in determining qualification for payment to those adversely affected.  I am mindful that I am not bound to apply such policy guidelines (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), but without cogent reasons for not so doing in a particular case, I would usually apply such guidelines (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

20.     In addressing the issues of whether Mr Gleeson was adversely affected, I turn my attention as to whether or not Mr Gleeson’s principal place of residence was rendered uninhabitable for a period of more than 48 hours.  It is evident from the material before me that the reason for Mr Gleeson leaving his place of residence was an absence of power, a situation which continued for a period in excess of 60 hours, until power was restored on 11 June 2007.  An absence of power in such circumstances is very much an inconvenience, but does not make a house uninhabitable.  In using the term “uninhabitable”, and in the absence of a statutory definition, I note the absence of a definition in the Concise Oxford Dictionary of the word “uninhabitable” and infer from the definition of inhabitable that “uninhabitable” means being unable to live in, occupy or dwell in.

21.     Mr Gleeson detailed circumstances of roof damage and water spilling into the bathroom from such damage, with the water entering the bathroom light fittings, with Mr Gleeson expressing concern over the possibility of an electrical fire when the power was restored.  While I understand why Mr Gleeson may have been anxious about such circumstances, it is very much evident that this was not the reason why he elected to move to a friend’s place, the house being equipped with a generator.  Nevertheless, it is difficult to assess such localised water damage as rendering the house unable to be occupied.  In so stating, I would observe that Mr Gleeson’s main concern about the possibility of an electrical mishap could have been curtailed by simply switching the power off at the mains.

22.     Thirdly, Mr Gleeson raised the loss of food and medication because of damage to his refrigerator and freezer.  While no doubt the functioning presence of such items is consistent with normal, everyday living, the loss of power supply in the short term is not of immediate concern, particularly in wintertime, while in the medium to longer term, food loss becomes inevitable.  In such circumstances the issue of inconvenience arises as opposed to rendering a house unable to be occupied.

23.     In summary, I am satisfied that Mr Gleeson’s principal place of residence was not rendered uninhabitable for a period of 48 hours or more.  In so finding I note the localised roof and water damage and inconvenience in the use of the bathroom, and his loss of electrical appliances as a result of the disruption in his power supply.  I do conclude that such circumstances do cause inconvenience, and require a degree of activity to overcome such inconveniences, such as more frequent shopping and careful monitoring of both the refrigerator and freezer items.  I would also observe that the circumstances as detailed can involve an individual in much annoyance and/or frustration.  Finally, I would note that the circumstances as detailed and the findings I have arrived at are not inconsistent with the Respondent’s guidelines issued for this particular major disaster.

DECISION

24.     As a consequence of my deliberations I conclude that Mr Gleeson's principal place of residence was not rendered uninhabitable for a period of 48 hours or more and as such he was not adversely affected by the major disaster.  In such circumstances I conclude that Mr Gleeson does not qualify for the payment and the decision under review be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member

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

Date of Hearing:  5 September 2008
Date of Decision:  26 September 2008
Appearance for the Applicant:       Self-represented
Appearance for the Respondent:   Mr J Larcombe, Legal Services and   Procurement Branch, Centrelink