O'Hearn and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 595

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 595

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/323-326

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PATRICIA O'HEARN; ALBERT O'HEARN; JOHN O'HEARN; BRIAN O'HEARN

Applicants

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date10 July 2008

PlaceNewcastle

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicants are entitled to the Australian Government Disaster Recovery Payment.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Australian Government Disaster Recovery Payment – applicants forced to evacuate home due to flood – residence rendered uninhabitable – decision under review set aside

Social Security Act 1991 – Sections 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

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

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

REASONS FOR DECISION

10 July 2008 Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1.      The decision under review is the decision made by the Social Security Appeals Tribunal (“SSAT”) on 11 December 2007 to affirm the decision made by a Centrelink authorised review officer on 17 September 2007 to reject the claim by Patricia O’Hearn, Albert O’Hearn, John O’Hearn and Brian O’Hearn (the Applicants) for the Australian Government Disaster Recovery Payment (“AGDRP”).

BACKGROUND

2.      In June 2007, the Central Coast and Hunter regions of New South Wales were subjected to severe storms and flooding.  As a result, in June 2007, the AGDRP was activated by the then Minister for Families, Community Services and Indigenous Affairs.  Mrs Patricia O'Hearn lodged a claim for the AGDRP in respect of the four members of the O'Hearn family: herself and her husband Brian, and their adult sons, John and Albert.  In the claim form they claimed to have been adversely affected by the floods because of the stress of finding alternative accommodation for their animals, machinery and fodder, and the post-flood clean up.

LEGISLATIVE FRAMEWORK

3. Qualification for AGDRP is set out in s 1061K of the Social Security Act 1991 (“the Act”).  To qualify, a person must be “adversely affected” by a major disaster.

4. Pursuant to section 1061L of the Act, 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. On 10 June 2007, the Minister made such a determination under s 1061L(2): 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”.

5. 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.

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

ISSUE FOR THE TRIBUNAL

6.      As there was no contention that any member of the O’Hearn family suffered a serious injury requiring hospitalisation as a result of the major disaster, the remaining issue was whether the family’s principal place of residence was destroyed or rendered uninhabitable for a period of 48 hours or more.

EVIDENCE

7. I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("T-documents").

8.      I was also provided with a statement by Mrs O’Hearn, and a statement by Robert Gulliver, who also gave evidence and assisted Mrs O’Hearn in her submissions.

9.      In addition, I was provided with a copy of 3 SES notifications dated 8 June 2007, 3 pm (although apparently this was a misprint and it was 9 June), 10 June 9 am and 10 June 1.45 pm, which were issued in respect of the area.

10.     Mrs O’Hearn told me that on the Friday night (8 June 2007) there was a terrible storm which blew capping off their gutters.  As a result, 2 upstairs rooms received water damage, marking the ceiling and walls.  One room was a spare bedroom, and the other was a games room.  The carpet was also damaged but ultimately dried out of its own accord. 

11.     They had little sleep on the Friday night and on Saturday morning decided to evacuate.  At about 11 am or 12 pm they started moving their horses and feed to a friend’s property.  They moved the farm machinery to higher ground nearer the house.  They brought the chickens to the garden shed.  They finished this by about 9 pm and then started moving their personal belongings such as documents and photos to Mrs O’Hearn’s auntie’s place.  They moved their better household items to the upper floors. 

12.     They sat up all Saturday night at the auntie’s, listening to the SES updated reports.  They returned to the property at about 5 or 6 am on Sunday, as they were worried about looters.  The day was spent ringing the SES for more updates and taking more household items upstairs.  People were dropping in to ask if they were alright.  On Sunday night there were people out the front of the house from Shortland Electricity who said the levee had broken.  They then returned to the auntie’s to sleep, but again listened to the radio all night.  One of their sons attempted to return during the night but access to their property was blocked.  They tried again at 6 am but it was still blocked and did not re-open until about 9 am on Monday morning.  The SES finally gave the ‘all clear’ on Monday afternoon.

13.     They found the house to be undamaged but the stables were under about 2 feet of water.  Although it had stopped raining the water continued to rise through Monday and came to within about 20 or 30 yards of the house.  Then the water slowly subsided.  On Monday night they were able to sleep safely at home.  They could not return the animals for a couple of weeks.

14.     At no time was the water supply or sewer cut off.  Electricity remained on, but Mrs O’Hearn said they are on the “hospital line” and their power is preserved even when everyone else's is off.

15.     Mr Gulliver told me he had worked in local government for 38 years, much of which was working for Maitland City Council.  He has a professional interest in planning in the area, and a good working knowledge of river levels and the effects of flooding in the area.  He had personally experienced the 1949 floods.  Mr Gulliver and Mrs O’Hearn referred me to a map of the area (T38 p82) and explained that there a levee was built on the property after the 1955 floods.  The levee created a flood way, that is, if the levee were breached water would flow away from the township.  However, the breach would cause water to flow sideways towards the home and it would be flooded. 

16.     Mr Gulliver referred me to the SES notices.  The first referred to anticipated inundation of 4 specific areas following the predicted flooding of the Belmore Bridge to a level of 11.3 metres.  Mr Gulliver knew from this especially that the house would be flooded if flooding at the Belmore Bridge reached the anticipated level. 

17.     The O’Hearns did not receive the SES notices because their home is adjacent to a commercial area and does not look like a residence.  Friends who live further afield from the levee all received notices.  Mrs O’Hearn spoke to Mr Gulliver during Saturday, and he, with up-to-date information as to flood levels, had no hesitation in advising them to leave immediately.  Over the years he had discussed with them the danger in the event the levee should break.

CONSIDERATION OF THE EVIDENCE

18.     There was no dispute that there was no loss of utilities and that the house received only minor damage.  I accept though that the family sustained damage to farm equipment and fences and that the livestock had to be moved, and that the stables were flooded. 

19.     I was referred to 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 (T4) (“the Guidelines”).  Centrelink submitted that the Applicants’ circumstances do not fall within any scenarios listed in the Guidelines.  Further, it was submitted, that in order for the principal place of residence to be uninhabitable, there must have been evidence of a loss of power, water and sewerage.  In this case, none of these happened apart from some minor water damage.

20.     Whilst I am not bound to apply policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent 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 Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

21.     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 AGDRP is payable.

22.     It was submitted that, in accordance with the Guidelines, other factors to be considered include whether the principal place of residence suffered significant structural damage or water damage or loss of access for more than 48 hours but less than 7 days to utilities (that are necessary to make it habitable), and whether the claimant remained in their principal place of residence.

23. The Guidelines were formulated, it appears, within just over a week of the storm of 7 June 2007, in an endeavour to clarify who might be eligible. No doubt, they were of great assistance to Centrelink staff to quickly evaluate the many AGDRP claims. The Guidelines do, however, go far beyond the simple requirement of the Determination, namely that the person's principal place of residence must be “rendered uninhabitable” for a period of 48 hours or more.

24. Regrettably, “rendered uninhabitable” is not defined in the Determination. The Oxford English Dictionary defines ‘inhabitable’ as “Not habitable, not adapted to human habitation, uninhabitable”.

25. I note for interest that, by comparison, the relevant 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 to be “adversely affected” a claimant’s principal place of residence had to have actually been damaged, and that “damaged” is defined. One might speculate that this change in the focus of the 2008 Determination from the 2007 Determination was to overcome the problem which now arises due to lack of precision in drafting the earlier Determination.

26.     Mr Gulliver contended, and I agree, that there is no requirement for the house to have sustained damage in order to be uninhabitable.  The family vacated the premises because of a legitimate apprehension of impending danger.  After the “terrible storm” of Friday night in which the house sustained some water damage, they had decided by early on Saturday to prepare to evacuate.  They sought Mr Gulliver’s advice and, given his experience, he confirmed they should leave immediately.  By 3 pm the SES was warning residents in areas well beyond the O’Hearns’ house (in the path of the flood flow) that they should prepare for evacuation.  To have remained would have put the family in danger and leaving was the prudent course.  In these circumstances, I find the house was uninhabitable.

27.     Mr Gulliver also argued that the strict application of the “48 hour rule” by the SSAT was unrealistic.  He noted that when people are confronted with a flood they are not taking note of the time they do things, or counting the hours. 

28.     The evidence was that the Applicants commenced vacating their home for safety reasons at 11 am or 12 pm on Saturday 9 June 2007.  They returned to their home on Monday 11 June 2007 at 9 am.  Strictly, as observed by the SSAT, this might make 45 or 46 hours, but I do not think this calculation is appropriate.  On the evidence, the decision to leave was made earlier than 11 am.  From that time the family was packing up to leave, although the evacuation did not formally begin until 11 am or 12 pm.  Similarly, while they may have been permitted to return to the property at about 9 am on Monday, they clearly would not have instantly been re-settled into the home.  It is even arguable in my view, given that the floodwaters continued to rise, that until the SES had given the ‘all clear’ the house could be considered to be uninhabitable.

29.     In summary, I have come to the view that the O’Hearn home was rendered uninhabitable for a period of at least 48 hours and therefore each of the Applicants is entitled to the AGDRP.

DECISION

30.     The decision under review is set aside. Each Applicant is entitled to the Australian Government Disaster Recovery Payment.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Date/s of Hearing  1 July 2008
Date of Decision  10 July 2008       
Advocate for the Applicants     Mr R Gulliver
Solicitor for the Respondent     Ms S Mantaring, Centrelink Legal Services