Kahler and Secretary, Attorney-General's Department
[2012] AATA 786
•13 November 2012
[2012] AATA 786
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1772
Re
KEVIN KAHLER
APPLICANT
And
SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 13 November 2012 Place Brisbane The Tribunal affirms the decision under review.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY - Australian Government Disaster Recovery Payment – Claim – Whether stranded in principal place of residence – Whether no access to water – Not adversely affected – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 36, 1061K, 1061L
CASES
Mason and Secretary, Attorney General’s Department [2011] AATA 904
SECONDARY MATERIALS
Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 1)
REASONS FOR DECISION
Mr P Wulf, Member
13 November 2012
Kevin Kahler ("the applicant")[1] seeks the review of a decision made by Centrelink on 24 February 2011[2] to not grant him with an Australian Government Disaster Relief Payment (“DRP”) as it did not believe he was adversely affected by a major disaster. The applicant made a further application on 3 July 2011 for DRP;[3] however, this claim was also rejected.[4]
[1] Exhibit 1, T-Document 1/1–2.
[2] Exhibit 1, T-Document 6/19.
[3] Exhibit 1, T-Document 8/21-23.
[4] Exhibit 1, T-Document 9/24.
The claim was made in accordance with the Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 1) (“the Determination”), enacted by the Attorney-General on 4 January 2011. The Determination related to the heavy rainfall, storm damage and associated flooding in Queensland that began in November 2010 and continued into January 2011, determined to be a major disaster under s 36 of the Social Security Act 1991 (Cth) (“the Act”).
An Authorised Review Officer (“ARO”) affirmed the decisions to reject the claim on 7 December 2011.[5]
[5] Exhibit 1, T-Document 12/28-35.
On 3 February 2012, the applicant appealed to the Social Security Appeals Tribunal (“SSAT”) which upheld the original decision to not grant him a DRP.[6]
[6] Exhibit 1, T-Document 2/3-7.
The applicant has applied to this Tribunal for review of the decision. For the reasons as stated below, this Tribunal affirms the decision under review.
THE ISSUE FOR THE TRIBUNAL'S DETERMINATION
The issues for the Tribunal’s determination are whether the applicant was:
(a)affected by the disaster in a way determined by the Minister in relation to the disaster under ss 1061K and 1061L of the Act; and, if so
(b)stranded in his or her principal place of residence for at least 24 hours; and/or
(c)without electricity, water, gas, sewerage service or another essential service for at least 48 hours.
The applicant argued in the appeal material that there was no Minister at the time to make a decision; however this was not pressed at the hearing. Notwithstanding, Commonwealth legislation provides for delegation of decision making powers and there is no suggestion that there was no delegation in place to make any decisions with respect to DRP.
LEGISLATION
The Commonwealth, using the Act, created a mechanism to pay DRP to persons adversely affected by natural disasters. By virtue of s 36(1) of the Act, the Minister:[7]
may determine in writing that an event is a major disaster if the Minister is satisfied that the event is a disaster that has such a significant impact on individuals that a government response is required.
[7] By virtue of the Administrative Arrangements Order of 14 October 2010 the Attorney-General is “the Minister” for these purposes.
Section 1061K prescribes the qualifications for the payment of DRP. The issue here is whether the applicant satisfied s 1061K(1)(c). The issue for the Tribunal’s determination is whether the applicant was a:
person … adversely affected by a major disaster.
For the purposes of the Act, and by operation of s 1061L(1), 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.
Section 1061L(2) empowers the Minister to determine, in writing, the circumstances in which persons are to be taken to be adversely affected by the disaster. Schedule 2 of the Determination is in these terms:
A person is adversely affected by a major disaster mentioned in Schedule 1 if, as a direct result of the disaster:
(a) the person is seriously injured; or
(b) a person is an immediate family member of an Australian who is killed; or
(c) the person’s principal place of residence has been destroyed or has sustained major damage; or
(d) the person is unable to gain access to his or her principal place of residence for at least 24 hours; or
(e) the person is stranded in his or her principal place of residence for at least 24 hours; or
(f) the person’s principal place of residence:
(i) was without electricity, water, gas, sewerage service or another essential service for at least 48 hours (a utility failure); and
(ii) the utility failure was caused by damage to public or private infrastructure; or
(g) the person is the principal carer of a child to whom any of the previous paragraphs apply.
THE EVIDENCE
The evidence before the Tribunal comprised:
(a)the "T Documents" (T1-14: pp. 1-55) lodged by the Secretary, Attorney-General’s Department in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (Exhibit 1);
(b)Applicant’s Statement of Facts and Contentions with associated photographs dated 4 July 2012 (Exhibit 2);
(c)Respondent’s Statement of Facts and Contentions dated 6 August 2012 (Exhibit 3); and
(d)The applicant’s oral evidence
ANALYSIS
The applicant lives on acreage near Gympie, Queensland. He relies only upon clauses (d), (e), (f)(i) and (f)(ii) of Schedule 2 of the Determination, these being that he was stranded in his principal places of residence for at least 24 hours, and that his principal place of residence was without water for at least 48 hours. The applicant did not suggest that any of the other circumstances in which a person is adversely affected apply to him. The legislation and the Minister’s Determination sets out the totality of circumstances under which a person is to be regarded as having been adversely affected by a major disaster. These are discussed separately below with respect to both the stranding and loss of water claim.
STRANDED
The events of the summer season of 2010-2011 will be remembered by Queenslanders as some of the worst ever seen. Many areas were significantly affected by floods and cyclones. Gympie and it surrounds was one of those areas.
The applicant’s evidence was that as a result of the rain and floods he was not able to leave his home as the water had crossed the road out the front of his property. He provided the Tribunal with a number of photos showing the extent of the water around his property and across the roads near his home. Mr Kahler’s argument was that he was not able to leave his principal property and get to, for example Gympie, as the roads and causeways were all flooded.
While it clear from the photographs that there is significant water around the applicant’s property, the applicant’s wife advised a Centrelink officer that the family could exit their property onto Randwick Road, if they turned left road was cut at creek about 100 metres away, if you turned right road was cut at Hose Road (about 1.5km) – unable to get into Gympie.[8] This would appear to suggest that while they may not have been able to get to a major centre, they were able to get out of their driveway.
[8] Exhibit 1, T-Document 6/19.
As was observed by the Tribunal in Mason and Secretary, Attorney-General’s Department[9] (Mason), at [9], the provisions of the Determination in question in that case[10] should be given a fairly narrow operation. This Tribunal considers that the provisions of this Determination should also be given that same narrow operation. Paragraph (e) of Schedule 2 of the Determination 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, para (d), which operates where a claimant is unable to gain access to their principal place of residence for at least 24 hours.
[9] [2011] AATA 904.
[10] In that case it was the Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 4) which was made in response to the natural disaster in North Queensland following Cyclone Yasi.
By virtue of cl 4 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. Deputy President Hack SC provided an excellent summary of how this Tribunal should assess the Determination in Mason, where he stated, at [10]:
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.
Based on the above, and the statements made to Centrelink by the applicant’s wife and the evidence presented, this Tribunal is not satisfied that the applicant was adversely affected in the manner he suggests. While it is noted from the decision of the SSAT that the applicant’s wife was wrongly paid,[11] this should not then give rise to a payment being made to the applicant. The applicant was not stranded in his principal place of residence for at least 24 hours; he could walk out of his house and onto a public road. He had the capacity to leave the residence and to travel, albeit not very far. He may have considered himself as having been adversely affected; however this Tribunal does not consider that it satisfies the requirement of the Determination.
[11] Exhibit 1, T-Document 2/3-7 at [16].
LOSS OF WATER
The applicant also contends (although this was not included in his initial claim for DRP) that he should be paid DRP based on the loss of water for a period of at least 48 hours. The applicant contends that as he lost power to his pump through the flooding, he was unable to pump water from the creek (Deep Creek) up to his tank to supply water for his toilets and for other uses.
The applicant advised the Tribunal that he had two tanks, one with rainwater (primary water) and one with creek water (secondary water). Both tanks were approximately 5,000 gallons each. These tanks serviced the applicant, his wife, son and an additional gentleman who stayed at periodic times.
The applicant’s evidence was that the pump that was used to transport the water from the creek was lost in the flood. He indicated that it took several weeks before a new one could be installed. Importantly however, the applicant advised the Tribunal that he had not yet re-installed the same system even some 20 months after the flood. The evidence was that the applicant had full use of the primary water throughout the period (for washing, kitchen use etc) and that he is claiming for the loss of the use of the secondary water.
There was some discussion during the hearing as to what constitutes water and how legislation has defined it. When considering water normally, one thinks of water being used for drinking and washing one’s self and obviously people also use water to flush the toilets, although in many parts of the world, the latter may not occur; however, the earlier are requirements to sustain life. If following the concepts set out in Mason and that therefore this Tribunal should use a narrow interpretation of the meaning of water, it is clear that the applicant had water continuously during the period. If water that was normally provided for the flushing of the toilet (secondary) was not available, it is clear on the evidence that primary water could have been used through the use of a bucket.
Based on the above, this Tribunal is not satisfied that the applicant was adversely affected in that he had water for the whole period. The applicant had a constant supply of primary water that he could have utilised and on this fact alone this Tribunal does not consider that it satisfies the requirement of the Determination.
DECISION
I am satisfied that the applicant was not a person who was adversely affected by a major disaster as described in the Determination and therefore the Tribunal affirms the decision under review.
I certify that the preceding 25 (twenty five) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.
.....................[Sgd]...................................................
Associate
Dated 13 November 2012
Date of hearing 3 September 2012 For the Applicant Mr Bruce Bell Advocate for the Respondent Mr Rick McQuinlan
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