MARK OGILVIE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 187
•19 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 187
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4644
GENERAL ADMINISTRATIVE DIVISION ) Re MARK OGILVIE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date19 March 2010
PlaceMelbourne
Decision The Tribunal sets aside the reviewable decision and in substitution decides that the applicant qualifies for the Australian Government Disaster Recovery Payment. (sgd) John Handley
Senior Member
SOCIAL SECURITY - Australian Government Disaster Recovery Payment – whether adversely affected by bushfire ‑ whether applicant was unable to return to his principal place of residence – whether psychological trauma experienced – whether in the immediate area of the disaster – whether as a direct result of the disaster his principal place of residence was under an immediate threat – decision set aside.
Social Security Act 1991(Cth) s 23, s 36, s 1061K and s 1061L
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 4)
REASONS FOR DECISION
19 March 2010 Mr John Handley, Senior Member 1. Mark Ogilvie, the applicant applies for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 3 September 2009. The SSAT affirmed a decision made by an Authorised Review Officer (ARO) of Centrelink to reject an application previously made for an Australian Government Disaster Recovery Payment (the payment).
2. The applicant is a disability support pensioner with an acquired brain injury. He is an adult person. He lives with his parents and was represented in this application by his father, Mr Ogilvie.
3. In January, February and March 2009, large parts of Victoria were threatened and decimated by bushfires. In apparent recognition of those catastrophes, the Minister for Families, Housing, Community Services and Indigenous Affairs determined that the bushfires that started in the period 29 January 2009 and continued in March 2009 were a major disaster for the purposes of the Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 4) (Determination No 4) (refer to Schedule 1 of Determination No 4).
4. The legislative entitlement to the payment is found in the Social Security Act 1991 (the Act) and Determination No 4.
5. Section 1061K of the Act prescribes the basis for qualification for the payment, namely that the applicant is at least 16 years of age, is an Australian resident and, relevantly to the proceedings, the person is adversely affected by a major disaster. A major disaster is defined in s 23 of the Act as a disaster in respect to which a declaration is in force under s 36. Section 36 of the Act provides that the Minister may determine in writing that an event is a major disaster if the criteria in s 36(2) are satisfied. Persons who live in Victoria, especially, would have little doubt that the extent of death and destruction by bushfires in Victoria in 2009 were a major disaster. Whilst bushfires in Victoria and throughout Australia are not unusual (refer to s 36(2) of the Act), the extent of the bushfires in the relevant period were, without doubt, unusual having regard to their nature or extent and the consequence of them. I am satisfied that the definition found in Schedule 1 of Determination No 4 satisfies s 36 of the Act.
6. The expression adversely affected which appears in s 1061K of the Act is also defined in s 23. Section 23 provides that in relation to a major disaster, adversely affected has the meaning given to it by s 1061L of the Act. Section 1061L(2) allows the Minister to determine the circumstances in which persons are to be taken to be adversely affected by the disaster. Determination No 4 sets out adverse circumstances for the purpose of s 1061L. Broadly speaking the circumstances include death or serious injuries to persons, the destruction or major damage of places of residence, utility failures, inability to return to places of residence and the experiencing of psychological trauma.
7. The applicant argued that he is entitled to the payment because he was adversely affected by the disaster. The two circumstances specifically relied upon by the applicant are found at Schedule 2 (e) and (f) of Determination No 4, namely:
. . .
(e)a person is unable to return to their principal place of residence for a period of 24 hours or more; or
(f) a person experienced psychological trauma; or
. . .
Determination No 4 provides that:
unable to return in relation to a person’s principal place of residence means the person could not return to their principal place of residence as supported by evidence.
Section 4 of Determination No 4 also provides that a place is to be regarded as the person’s principal place of residence, if:
(a) the place is a place in which the person normally resides; and
(b)the person has a right or licence entitling the person to lawfully reside in that place.
8. The expression experienced psychological trauma is defined in Determination No 4 as:
(a) the individual was in the immediate area of the disaster, and
(b) any of the following occurred:
(i)the individual was an eyewitness to a person seriously injured as a direct result of the disaster; or
(ii)the individual was an eyewitness to the remains, body or bodies of a deceased person or persons arising as a direct result of the disaster; or
(iii)as a direct result of the disaster, the individual was separated for 24 hours or more from an immediate family member; or
(iv)as a direct result of the disaster, the individual’s life was under immediate threat; or
(v)as a direct result of the disaster, the individual’s principal place of residence or real property owned by the person or business premises owned by the person, was under immediate threat.
9. The applicant contends that he experienced a psychological trauma on the basis that he was in the immediate area of the disaster and as a direct result of the disaster his residence was under immediate threat ((b)(v) above). Immediate area, direct result and immediate threat are not defined in Determination No 4. I am satisfied that paragraph (v) requires a connection in time and space between the disaster, the individual and the property that is not too remote. Paragraph (v) requires consideration of the objective facts, as well as the risk as reasonably perceived by the individual, both of which will be discussed below.
THE HEARING
10. The applicant's father, Mr Ogilvie represented him at the hearing on 29 January 2010.
11. He said there had been discrimination against his son in the denial to him of the payment. Mr Ogilvie said his son lived with him and his wife and they both qualified for, and received the payment. He said neighbouring persons were also paid. Mr Ogilvie said Centrelink has made a mistake and they refuse to admit it. He said his son was upset by the denial of the payment to him.
12. Mr Ogilvie said on 2 March 2009, Victoria Police issued text messages to mobile phones held by persons in his immediate vicinity. Whilst he could not recall the exact words of the message, he recalled the description of the risk of fire as being unprecedented and disastrous conditions were forecast for 2 March 2009. He said 140km winds were forecast with high temperatures. He said local schools were closed and persons were advised to evacuate.
13. Mr Ogilvie said that his property is at the end of a dead end gravel road being 2kms in length and he was in a poor position to fight a fire. He said his son had been involved in fighting fires on a previous occasion and had been traumatised by the experience. He said his son left the property on 2 March and returned on 5 March 2009. He did not know why his son was away for three days but said I guess he was worried. Mr Ogilvie and his wife also left on 2 March 2009 and stayed with a relative in Melbourne. They returned on 4 March 2009. They assumed that it would be safe to return because the forecasted weather conditions did not eventuate.
14. Mr Ogilvie said he did not know whether roads were blocked or access to properties was denied. His daughter, who lived in a property ¾ km from their property, had told him that roads were blocked. His daughter also received the payment. Mr Ogilvie said that when he, his wife and the applicant left their home, neighbouring fires were approximately 1km from their property and, having regard to the direction of the wind at the time, their property was in direct line. He said the Elvis helicopter could also be observed from their property as it attempted to extinguish the neighbouring fires.
15. Mr Ogilvie said his son was very upset by the experience. His son had been making furniture for between 15 and 20 years and did not leave lightly as he was concerned that he would lose his possessions. He said his son drove to Flinders where he owns a caravan and remained there until he returned on 5 March 2009.
16. Ms Bramley, on behalf of the respondent, said she had asked the Country Fire Authority (CFA) to provide information about the circumstances in the precinct of the applicant's premises on 2 March 2009. The information was not available on the day of hearing. She was unable to explain why other persons in neighbouring properties qualified for the payment. Ms Bramley suggested they may have qualified under another part of the qualifying provisions within the definition of adverse circumstances. During the hearing she obtained the consent of Mr Ogilvie for the disclosure of parts of his and his wife’s Centrelink file to ascertain the circumstances which gave rise to a decision that they both qualified for the payment.
17. The hearing could not be concluded until the information from the CFA was received. Accordingly, the hearing was adjourned part heard on the basis that when the documented information was received from the CFA , it would be copied and forwarded to Mr Ogilvie, together with copies of extracts from the Centrelink files. The material was received on 29 January 2010 and copies were forwarded to the applicant on 9 February 2010. The parties were invited to make submissions in response to the material. There has been no submission from either party.
18. In making my decision, I had regard to the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, all material lodged by the parties and the submissions delivered at the hearing.
CONCLUSION
19. The applicant argues that he was adversely affected by the major disaster because he was unable to return to his principle place of residence for a period of 24 hours or more. The applicant normally resides on a property in Upper Beaconsfield with his parents. In the absence of evidence to the contrary, I am satisfied that the property in Upper Beaconsfield is the applicant’s principal place of residence as defined in Determination No 4.
20. Determination No 4 provides that an inability to return to one’s principal place of residence must be supported by the evidence. During a telephone interview with the applicant on 1 May 2009 (T3), for the purpose of making a claim for the payment, the applicant notified the Centrelink officer that he was unable to return to his home as a direct result of the disaster and as directed by emergency services or other authority. In a letter written by the applicant to the SSAT (T7), he did not refer to the reasons for his inability to return to his home. Mr Ogilvie did not give the Tribunal reasons for his son’s inability to return.
21. The letter received by the CFA after the hearing refers to the period between 2 and 4 March 2009. It records CFA did not respond to any events during this period in Upper Beaconsfield, therefore no road closures were instigated or authorised by CFA in the vicinity of [address]. On the basis of this letter, it would appear that the road in which the applicant's home is located and the surrounding roads were not closed. Victoria Police sent text messages to mobile telephones recommending evacuation. However, there was no evidence to suggest that residents were physically prevented from returning to their homes.
22. The applicant may have been of the belief that it was unsafe to return to his home. However, the inability to return as contemplated within Schedule 2 must be supported by the evidence. The words is unable point to a prohibition or a restraint, either by the fire or because responsible authorities have prohibited persons from returning, for example, by road closures. The CFA letter indicates that there were no fires in the immediate vicinity of the applicant's address and roads were not closed. There is no evidence that the roads were closed by the authority of any other agency. Road closures would have been a consequence of the fire and would be a consequence of the major disaster. In the absence of any evidence to the contrary, I am satisfied that there was no inability on the part of the applicant to return to his home for a period of 24 hours or more.
23. The applicant also contended that he experienced a psychological trauma as defined within Determination No 4. I am satisfied for reasons which follow that this submission does have merit.
24. In the telephone interview on 1 May 2009, the applicant was also asked whether he experienced psychological trauma as a direct result of being in the immediate area of the disaster (T3, p11). The answer recorded was No. Experienced psychological trauma is defined in Determination No 4. There is no suggestion in the record of interview that the meaning of those words was explained to the applicant. If there was, I do not believe he would have answered in the negative. The applicant subsequently amended his claim to include experiencing a psychological trauma.
25. The applicant’s submission to the SSAT is consistent with the evidence given by his father at the hearing, namely, on the morning of 2 March 2009 the weather conditions were extreme, high temperatures were predicted with 140km winds and local schools were closed. Smoke and flames were visible 1km away, and the ambient temperature was extreme. The applicant and a number of other persons received text messages on their mobile telephones from the police warning of disastrous weather conditions. The applicant was aware of the consequences of bushfire, having previously being engaged in one such catastrophe. By reason of the strong winds he understood that the Elvis helicopter was likely to be grounded. The evidence of the applicant's father that the Elvis helicopter could be observed extinguishing fires is not in my view necessarily inconsistent with the evidence of the applicant.
26. The adverse circumstance of experiencing a psychological trauma by a major disaster occurs when a person was in the immediate area of the disaster and one of the events in paragraph (b)(v) occurred (refer to paragraph 8). Satisfaction of this definition does not require medical proof or diagnosis. Satisfying any one of the five parts of sub-paragraph (b) is sufficient. The construction of the definition points to a qualification under (v), if:
(a)The person was in the immediate area of the disaster; and
(b)As a direct result of the disaster, the principal place of residence was under immediate threat.
27. On the basis of the submissions of the applicant (and the evidence of his father), I am satisfied that he was in the immediate area of the disaster – that is bushfires in the State of Victoria that continued in March 2009. Fires were present and visible approximately 1km from his property immediately prior to evacuation. Winds of 140km per hour were forecast, local schools had been closed, text messages had been received from the police, he was located at the end of a dead end road and the Elvis helicopter was either operating or it was predicted that it would be grounded because of the strong winds.
28. The definition of experiencing a psychological trauma at (b)(v) does not require destruction or damage to property. It merely requires that the property was under immediate threat as a direct result of the disaster. The word result, in context, is the consequence or outcome of the disaster as reasonably perceived, that is the threat. This requires an objective and subjective analysis. It takes little imagination in my view to comprehend that persons in the position of the applicant would have had a reasonably held objective belief that the prevailing circumstances would have put his principle place of residence under immediate threat. The subjective belief of the applicant that his principle place of residence was under immediate threat was also reasonable in the circumstances. It follows he experienced a psychological trauma and was adversely affected by the major disaster. Therefore, the applicant satisfies s 1061K of the Act.
29. In the circumstances, I am satisfied that the decision under review made by the SSAT on 3 September 2009 should be set aside and in substitution decide the applicant is entitled to the payment.
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Signed: Olympia Sarrinikolaou
Legal Assistant
Date of Hearing 29 January 2010
Date of Decision 19 March 2010
Advocate for Applicant Mr W Ogilvie (father)
Advocate for Respondent Ms A Bramley
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