Gregory Horsfield and Secretary, Attorney-General's Department
[2013] AATA 811
[2013] AATA 811
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2853
Re
Gregory Horsfield
APPLICANT
And
Secretary, Attorney-General's Department
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 15 November 2013 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Claim for Australian Government Disaster Recovery Payment (AGDRP) – No egress from property to roadway because of floodwater – Applicant’s property and place of residence thereon not flooded – Access to neighbours’ properties available – Applicant not stranded in his place of residence – Applicant not adversely affected by a major disaster – Applicant not qualified for an Australian Government Disaster Recovery Payment (AGDRP) – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 1061K, 1061L
Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No. 3) ss 3(2), 5; Schedules 1 and 2
CASES
Re Mason and Secretary, Attorney-General’s Department [2011] AATA 904
REASONS FOR DECISION
Mr R G Kenny, Senior Member
15 November 2013
BACKGROUND
On 31 January 2013, Mr Gregory Horsfield lodged a claim with Centrelink for Australian Government Disaster Recovery Payment (“AGDRP”) which is payable under the Social Security Act 1991 (Cth) (“the Act”).[1] The claim was rejected by a Centrelink delegate on 5 March 2013. That decision was affirmed on 10 April 2013 by an authorised review officer and again by the Social Security Appeals Tribunal (“SSAT”) on 27 May 2013.
[1] This online claim was followed with a claim in a Centrelink AGDRP form on 1 February 2013: see Exhibit 1, pp. 32-33.
LEGISLATION AND ISSUES
The AGDRP is an emergency payment made to people adversely affected by specific disasters as determined by the Minister under s 1061L(2) of the Act. Qualifications for the AGDRP are set out in s 1061K of the Act which reads:
1061K Qualification for Australian Government Disaster Recovery Payment
(1) A person is qualified for an Australian Government Disaster Recovery Payment if:
(a) the person is at least 16 years old, or is receiving a social security payment; and
(b) the person:
(i) is an Australian resident; or
(ii) is the holder of a visa that is in a class of visas determined by the Minister for the purposes of subparagraph 729(2)(f)(v); or
(iii) is receiving a social security payment; or
(iv) is an Australian citizen who is not an Australian resident and who is covered by a determination under subsection (2); and
(c) the person is adversely affected by a major disaster.
…
It is not in dispute that Mr Horsfield meets the requirements in s 1061K(1)(a) and (b) of the Act. However, the respondent contends that he does not meet the requirement in s 1061K(1)(c) of the Act. In that regard, a person is “adversely affected by a major disaster” if he or she is affected in a manner stated in a ministerial determination made under s 1061L of the Act which, in so far as relevant, reads:
1061L Meaning of adversely affected
(1) For the purposes of this 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.
(2) 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.
…
Of relevance in this matter is the Minister’s Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No. 3) (“the Determination”) which commenced on 30 January 2013. Under s 4 of the Determination, a person was adversely affected by a major disaster mentioned in Sch 1 of the Determination if the person was affected in a way mentioned in Sch 2 thereof. Schedule 1 of the Determination lists the relevant major disaster for the purposes of the AGDRP. It reads:
Schedule 1—Major disaster
The severe weather, rainfall and associated flooding that occurred as a result of ex Tropical Cyclone Oswald that commenced on 21 January 2013 and continued in January 2013 and February 2013 and affected the Local Government Areas of Bundaberg, Cherbourg, Fraser Coast, Gladstone, Gympie, Lockyer Valley, North Burnett, Rockhampton, Somerset and South Burnett.
Schedule 2 of the Determination sets out the circumstances in which a person is adversely affected for the purposes of the AGDRP. It reads:
Schedule 2—Circumstances in which person adversely affected
A person is adversely affected by a major disaster mentioned in Schedule 1 if:
(a) as a direct result of the disaster:
(i) the person is seriously injured; or
(ii) the person is an immediate family member of an Australian who is killed; or
(iii) the person’s principal place of residence has been destroyed or has sustained major damage; or
(iv) the person is unable to gain access to his or her principal place of residence for at least 24 hours because:
(A) access to the place of residence is cut off; or
(B) the person is unable to leave a place affected by the disaster;
(v) the person is stranded in his or her principal place of residence for at least 24 hours, or
(b) as a result of the disaster, the person’s principal place of residence was without a particular utility service for a continuous period of 48 hours; or
(c) the person is the principal carer of a child to whom paragraph (a) or (b) applies.
In this matter, Mr Horsfield claimed the AGDRP on the basis that he was adversely affected by the floods in Queensland in the manner listed in paragraph (a)(v) of Sch 2 in that he was stranded in his principal place of residence for at least 24 hours.[2] It is not disputed that Mr Horsfield’s home at Moore Park Beach, near Bundaberg, was a place of residence as defined in the Determination.[3]
[2] See Exhibit 1, p. 33.
[3] See s 3(2) of the Determination.
The issue for determination is whether Mr Horsfield was adversely affected by Tropical Cyclone Oswald.
EVIDENCE
During the time of the floods in the Moore Park Beach area, Mr Horsfield’s residence was isolated by flood water from Tropical Cyclone Oswald. There was a loss of electricity for about 14 hours. His place of residence is located on property at the corner of Gengers Road and Albatross Court. Outside the perimeter of his property, those two roads were covered with flood water. On exiting his property by his driveway, Gengers Road ran to the left and ended at river mangroves. To the right, Gengers Road gave access to other roads which led to Bundaberg. That degree of flooding is not disputed and was confirmed in photographs taken by Mr Horsfield at the time.
Regardless of the direction he took Mr Horsfield, on leaving his property by vehicle, would have been required to drive through floodwaters. He was aware of public warnings which advised against driving into floodwater and he made no attempt to drive from his property until the waters subsided after four or five days. As a result, his wife was unable to travel to her place of employment in Bundaberg for several days. Mr Horsfield’s evidence was that he suffers from painful orthopaedic conditions for which he takes medication for pain relief. He exhausted his supply of these during the period of isolation and was unable to replenish them until the waters subsided.[4]
[4] See also exhibit 2.
Despite it being flanked on two sides by floodwater, Mr Horsfield’s property was not flooded. That was also the case with adjacent properties on Gengers Road and Albatross Court. Indeed, he was able to exit his property and access the property of neighbours on Gengers Road.
Mr Horsfield’s evidence was that there were 12 residential dwellings in his area of Moore Park Beach. He understood that, because of the impact of Tropical Cyclone Oswald, all of the residents thereof had claimed AGDRP successfully. He said that the circumstance of their respective properties were the same as his.
SUBMISSIONS
Mr Horsfield submitted that the rejection of his claim amounted to discrimination against him because of the AGRDPs which have been granted by the respondent to his neighbours whose situations were identical to his. He also submitted that consideration should be given to his health concerns at the time of the floods and his inability to obtain appropriate medication. While conceding that he was able to exit his residence, walk on his own property and access the properties of his neighbours, he submitted that the inability to access the roads outside his property meant that he was stranded in his principal place of residence for at least 24 hours.
For the respondent, Ms Jasmine Forsyth submitted that the issue of persons other than
Mr Horsfield receiving the AGRDP was not a matter of relevance to Mr Horsfield’s claim. She also submitted that the Determination did not provide for the issue relating to medication for Mr Horsfield’s orthopaedic condition. Further, she submitted that he was not stranded in his place of residence as he was able to leave the premises and even his property to gain access to the properties of his neighbours which were also not flooded. Ms Forsyth submitted that, in Re Mason and Secretary, Attorney-General’s Department[5] (“Mason”), a narrow interpretation had been applied to the concept of a person being stranded in their principal place of residence. This was to the effect that the reference in the Determination was to the premises rather than to the property on which the premises are located
[5] [2011] AATA 904. This case was also cited by the SSAT.
CONSIDERATION
This matter falls for consideration under the terms of the Determination. This does not provide for any general discretion to be exercised and must be applied according to its clear terms. I accept the correctness of Ms Forsyth’s submission concerning any grants of AGDRPs to other persons. No specific details of their respective circumstances are in evidence. Also, while I understand that the absence of Mr Horsfield’s medication would have increased his concern during the period of the flooding, that is not a matter that the Determination countenances.
For his claim to succeed under the Determination, it must be the case that Mr Horsfield, because of Tropical Cyclone Oswald, was, for at least 24 hours, stranded in his principal place of residence. In Mason, Deputy President Hack referred to the matter in the following way:
9. In my view paragraph (a)(v) is to be given a fairly narrow operation. It requires that the claimant be unable to leave the residence for at least 24 hours. In that sense, it complements, and is the converse to, paragraph (a)(iv) which operates where a claimant is unable to gain access to the principal place of residence for at least 24 hours.
10. By virtue of clause 3(2) of the Determination, a place of residence is a person’s principal place of residence if the person normally resides at the place and has a lawful right to reside at that place. The language chosen to define the circumstances of adverse affectation is different; a person is adversely affected if stranded in the principal place of residence. That choice of language must be given effect to. Had the Determination defined the circumstances as being stranded at the principal place of residence the applicants might have satisfied the criteria however I do not consider that they were stranded in their place of residence for the required 24 hours. The fact that they were able to leave the residences and travel tells conclusively against acceptance of the proposition that they were stranded in their residences.
I am satisfied that the reference in the Determination to being stranded in his principal place of residence requires that the person be unable to leave the premises. Mr Horsfield was able to do so and, indeed, was able to access the properties of his neighbours. Accordingly, I am satisfied that Mr Horsfield was not qualified for the AGDRP.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ......................[Sgd]..................................................
Associate
Dated 15 November 2013
Date of hearing 6 November 2013 Applicant In person Solicitors for the Respondent Ms Jasmine Forsyth, Departmental Advocate
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