Graham and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 920
•15 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 920
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0816
GENERAL ADMINISTRATIVE DIVISION ) Re SYLVIA GRAHAM Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date15 October 2008
PlaceSydney
Decision The decision under review is set aside. The Applicant is entitled to the Australian Government Disaster Recovery Payment.
...................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Australian Government Disaster Recovery Payment – meaning of adversely affected – meaning of uninhabitable – no access to house during flood – no structural damage to house – carpets wet and smelly – loss of electricity for 12 hours – house inaccessible for 3 days – decision under review set aside.
Social Security Act 1991 (Cth) ss 23, 1061K, 1061L
Social Security (Australian Government Disaster Recovery Payment) Determination 2007 (No. 4)
Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 1)
Guidelines for Australian Government Disaster Recovery Payment to those adversely affected by storms and associated flooding in the Hunter Valley and the Central Coast of New South Wales in 2007
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Carmody andSecretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 692
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 864
REASONS FOR DECISION
15 October 2008 Ms Robin Hunt, Senior Member summary
1. Sylvia Graham is contesting a decision to refuse her an Australian Government Disaster Recovery Payment (‘AGDRP’). Mrs Graham was affected by the Central Coast and Hunter region storms and floods, which occurred in early June 2007. The devastation caused the Australian Government to issue a legislative instrument providing for disaster recovery payments to assist people who had been adversely affected. Mrs Graham was affected by the storm and floods but previous decision makers considered that she had not been sufficiently affected to qualify for the special payment. I have found that Mrs Graham does so qualify. My reasons are set out below.
issue
2. Mrs Graham’s entitlement to payment depends on a finding that her house was uninhabitable for a period of 48 hours or more as a direct result of the event, storm damage and associated flooding, which gave rise to the provision of disaster relief payments.
consideration
3. On 27 July 2007, Mrs Graham lodged a claim for disaster recovery payment. In the claim form, Mrs Graham filled in the answers to various questions. In answer to whether her ‘principal home’ was damaged, Mrs Graham wrote “not the structure itself, just water damage”. To the question about when this happened, Mrs Graham answered 7 June 2007. She wrote that her house was uninhabitable and that she could not get in because a river was running across the front and the back and that carpets and rugs were sodden. She also mentioned perishable food. She observed that the area was flooded 3 days before Maitland. She stated that she had since returned to the house. To the question about being adversely affected, Mrs Graham wrote that Maitland Vale Road was blocked by flood water at both ends and in many places. She was unable to get out for supplies and had to stay on higher ground where she was feeding neighbour’s animals and could not get dry clothes. Her car took a week to drain out.
4. The Secretary rejected her claim on the basis that Mrs Graham was unable to verify the extent of damage to her home, that she was not evacuated and had no power, water or sewerage outage. Mrs Graham gave oral evidence at the tribunal hearing that she did experience power outage for 12 hours but did not complain of any other loss of services. Her property is connected to a septic tank and is not connected to a sewerage system, she said.
5. Mrs Graham gave further evidence at the tribunal hearing. She said she lived alone in a farming area where there were few services available. There were some neighbours nearby. Mrs Graham explained she had been looking after the animals belonging to one of her neighbours at the time when the storm and flooding occurred. She told the tribunal that her neighbour had died earlier in the year, leaving a number of animals untended. The animals left included bulls bred for sale to other farmers in the calving season and two dogs. When her neighbour died, his estate passed to some relatives who lived in Queensland so there was no one able to look after the animals on the property. Mrs Graham voluntarily looked after the animals at first and then with the knowledge of the relatives. She also parked her motor vehicle in the deceased’s driveway to make the house appear occupied and to protect valuable farm equipment stored in the shed. She had met the relatives and they knew she was looking after the animals.
6. When the rain and storm started, Mrs Graham said she went to the neighbour’s place to feed the animals and became stranded there. She said the neighbour’s property was on higher ground than hers. When she was ready to return home, she saw there was a fast flowing river between the two houses and she felt it was too dangerous for her to try to return. She said to try to cross the water would have been against State Emergency Service guidelines and might have caused her to be swept away and drowned. There was also the risk of snakes being swept along and the risk she would be bitten. Mrs Graham described the fast flowing water running in front of and behind her house. When the water abated, there was thick mud and she was worried that she was not strong enough to make her way through it either. Mrs Graham said she was aged 67 and had arthritis and some heart problems which made it more problematic for her to attempt to cross the flood to reach her house.
7. As well, Mrs Graham said that she was soaking wet after feeding the animals but had no dry clothes. There were no clothes in the deceased’s house. She was forced to wear nothing more than a towel for some days as her clothes would not dry. She hung them up but they were still wet several days later when the deceased’s relatives came to see how she was faring. By then, she had been able to get back to her own house to fetch some clothes but returned to the neighbour’s house because the smell from her wet carpet made her unwell. She said she was unable to breathe but was not sure if the carpet brought on asthma or what caused her breathing difficulties.
8. Mrs Graham also said she had nothing to eat for some days except some apples which were in her vehicle. There was no food in the deceased’s house. She had food in her own fridge but could not access it. When she was able to return to her house the food and veterinary supplies she stored in the fridge were affected by the loss of electricity for 12 hours. Mrs Graham gave further evidence that the road to her house was closed at both ends by floodwaters and no one could get in and out during the flood. She also had no radio in the house and the radio in her vehicle did not work. She understood that relatives of the deceased had been trying to contact her to check if she was alright but that the telephone in the deceased’s house was faulty. She had no landline in her own house and her mobile needed recharging at the time she was stranded. In any case, the electricity supply failed for 12 hours so she could not recharge it during this period. The relatives eventually reached the house but this was after the flood had receded and the road reopened. She thought her vehicle must have been flooded because it was wet inside and later developed rust.
9. In response to questioning, Mrs Graham claimed she could not remember how many days she was stranded. While she was adamant that it was several days, she could not recall exactly how long she stayed in the deceased’s house. She thought it was at least a week or maybe five days before she could access her house. Eventually, Mrs Graham admitted that she returned to her own house after about 3 days to get some clothes and food. This was when she decided her house was uninhabitable because of the drenched carpet and the odour. She went back to the deceased’s house, as it was habitable, and said it was several more days before the deceased’s relatives reached her.
10. Qualification criteria for the payment Mrs Graham seeks is set out in section 1061K of the Social Security Act 1991 (‘the Act’). To qualify, a person must be “adversely affected” by a major disaster. Pursuant to section 23, "adversely affected", in relation to a major disaster, has the meaning given by section 1061L. The term, "major disaster", means a disaster in respect of which a declaration is in force under section 36.
11. For the purposes of the Act, a person is adversely affected by a major disaster if the person is affected by the disaster in a way determined by the Minister in relation to the disaster: subsection 1061L(1). Pursuant to subsection 1061L(2) of the Act, the Minister may determine in writing, in relation to a major disaster, the circumstances in which persons are taken to be adversely affected by the disaster. On 10 June 2007, the Minister made a determination called the Social Security (Australian Government Disaster Recovery Payment) Determination 2007 (No. 4) (‘the Determination’). 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”.
12. 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.
13. Mrs Graham referred to the major disaster of 7 June 2007 in her claim form. By this, I take it as being a reference to the day the storm started. I think nothing turns on her having been adversely affected 3 days before Maitland residents were evacuated as she gave evidence that flooding occurred sooner in her region than downriver in Maitland. I am conscious that Mrs Graham has not provided any corroboration of the events she describes. She explained this to some extent by saying she had fallen out with her nearest neighbour and, of course, the deceased’s house where she sheltered was otherwise unoccupied. Mrs Graham gave her evidence about the effects of the storm and flood in a vivid manner and I did not form the impression that she was exaggerating except perhaps as to the length of time that she was stranded. While Mrs Graham was vague about the period she could not access her house, on balance, I accept that Mrs Graham did suffer the difficulties she described in her oral evidence and that she was stranded in the deceased’s house for at least 3 days.
14. After 3 days, Mrs Graham was able to return briefly to her house to collect some clothes. She returned to the deceased’s house because of the wet carpet, about which she gave evidence in some detail to the Social Security Appeals Tribunal (‘the SSAT’) and which she also explained to me. I am not able to reach a conclusion as to when the carpet became so wet that Mrs Graham could not sleep in the house. It may have occurred during the flood or it may have occurred, as the SSAT concluded, because the floodwaters saturated the concrete slab on which Mrs Graham’s house was built and rising damp resulted. Mrs Graham referred to the importance that the SSAT put on the absence of silt in her house and I agree with the SSAT that this indicates no floodwaters entered the house. The Authorised Review Officer noted that the carpets were damaged more near the doorways of the living room and bedroom and that water may have blown under these doors. Whatever the cause, I accept that Mrs Graham’s carpets were saturated and that she felt unable to sleep in her house because of the smell.
15. The question for decision is whether Mrs Graham was adversely affected to the extent required as a direct result of the major disaster which is the subject of the Determination. Mrs Graham gave evidence that the effects of the storm and flood to the house included damage to the carpet and the matters mentioned in her claim form and oral evidence, as well as some other possible effects which she noticed recently. Mrs Graham said she thought leaking from the roof might be the result of the storm as well.
16. As Mrs Graham was not injured or hospitalised, the only ground for her claim to succeed is for her place of residence to have been destroyed or rendered uninhabitable for a period of 48 hours or more. The term ‘uninhabitable’ is not defined in the Act or in the legislative instrument, being the Minister’s Determination of 10 June 2007. I indicated at the hearing that a combination of inaccessibility to the house plus the damage that occurred, might amount to adverse effects that qualified for the payment. The Secretary argued that inaccessibility did not make a house uninhabitable. I note, however, that Senior Member Isenberg did consider that inaccessibility combined with other circumstances in Re Carmody and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 692 did make the house in that case uninhabitable. By comparison, Member Dr Campbell in Re Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 864 found that an uncomfortable situation where carpet was sodden and the roof was leaking in the bathroom did not make a house uninhabitable. I also have borne in mind the Guidelines for Australian Government Disaster Recovery Payment to those adversely affected by storms and associated flooding in the Hunter Valley and the Central Coast of New South Wales in 2007 (‘the Guidelines’) to which I was referred at the hearing.
17. The Guidelines were published on 15 June 2007 and, as Senior Member Isenberg noted in Carmody, go far beyond the simple requirement of the Determination that the person's principal place of residence must be “rendered uninhabitable” for a period of 48 hours or more. 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 payment should result. The meaning of “rendered uninhabitable” is not defined in the Determination. The word “uninhabitable” is not defined in the Macquarie Dictionary but “habitable” is defined as “capable of being inhabited”. The Oxford English Dictionary defines “inhabitable” as “not habitable, not adapted to human habitation, uninhabitable”. These definitions do not advance the matter much.
18. In my view, Mrs Graham must show she was “adversely affected” by the declared disaster, according to section 1061K, and that her house (noting there is no contest that it is her principal place of residence) was “rendered uninhabitable”, according to the Determination. The Guidelines may also assist.
19. Mrs Graham’s circumstances do not fall within any of the examples listed in the Guidelines. I am not, however, bound to apply policy guidelines inflexibly (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) but the Tribunal usually applies guidelines unless there are strong 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 Ethnic Affairs (1987) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. I also note, as Senior Member Isenberg discovered, that, by comparison, a 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 a claimant’s principal place of residence must be damaged, for a claimant to be “adversely affected” and that “damaged” is defined. The present Guidelines are less precise and it is not a requirement in the Determination that a claimant’s house be damaged.
20. In my view, whether a principal place of residence was rendered uninhabitable by the declared disaster is a matter of fact and degree in each case. Although Mrs Graham’s claims were not corroborated, there was essentially no dispute that her house was under threat of being flooded and that Mrs Graham was separated from it by fast flowing water. Mrs Graham has not claimed her house suffered significant structural damage and her evidence was that she was able to access the house after three days rather than the seven days specified in the Guidelines.
21. The house was inaccessible for more than 48 hours but less than seven days to utilities. In this event, the Guidelines infer that loss of utilities may make a place uninhabitable, referring to utilities “that are necessary to make it habitable”. According to the Guidelines, in order for the principal place of residence to be uninhabitable, loss of access to a utility may be an important factor even where the loss is for less than seven days. In this case, Mrs Graham says electricity was lost for 12 hours and there was some water damage. She also mentioned that her neighbour’s phone was faulty for some days although she did not purport to claim that this must have been due to the storm and flood.
22. The Guidelines also say that all the circumstances should be investigated and advice from local authorities sought concerning the length of time a place may be without utilities. The reviewable decision refusing Mrs Graham payment does not mention that any investigation was made.
23. I also note that the Guidelines indicate that all the circumstances may be taken into account in reaching a decision about whether a claimant qualifies for payment. The main circumstances in the present case include the lack of accessibility to the house for three days, the lack of food and clothing for this period, the damage to the carpet and the result to Mrs Graham of her being unable to breathe and sleep until she removed the carpets once she felt able to return. This was some several days later. I also bear in mind that Mrs Graham lives in a rather isolated farming community and not in any centre where there is a population and rescue services readily at hand. In addition, Mrs Graham is elderly and I think it is appropriate to take into account that she would have more difficulty in crossing floodwaters than a younger able bodied person. She has done her best to manage in atrocious conditions. Overall, I find that Mrs Graham was adversely affected and that the combination of these circumstances mean that her house was rendered uninhabitable for more than 48 hours. This means that she is entitled to the special payment.
decision
24. The decision under review is set aside. The Applicant is entitled to the Australian Government Disaster Recovery Payment.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: ..........................[Sgd]...........................
Jennifer Wong, AssociateDate/s of Hearing 8 October 2008
Date of Decision 15 October 2008
Appearance for the Applicant Self-represented
Advocate for the Respondent Ms S Mantaring – Centrelink Legal Services
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