PLFX and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 464

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4453

GENERAL ADMINISTRATIVE DIVISION		)
Re		PLFX

Applicant

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

Respondent

CORRIGENDUM

On 26 June 2009, the Tribunal directed the Registar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision as follows:

Replace the name of the Respondent “Secretary, Department of Education, Employment and Workplace Relations” with “Secretary, Department of Families, Housing, Community Services and Indigenous Affairs”.

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date25 June 2009

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal dated 4 September 2008, affirming Centrelink’s decision to reject the Applicant’s claim for a crisis payment, is affirmed.

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

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Crisis Payment – Claim for forced departure from home – Applicant required to move house for eight days during renovations – Applicant suffers psychiatric disorders - Whether qualifies for crisis payment – Whether extreme circumstances – Held no extreme circumstances – Decision affirmed

Acts Interpretation Act 1901 (Cth), s 15AB

Administrative Appeals Tribunal Act 1975, ss 35, 37

Social Security Act 1991, ss 39, 1061JH

Guide to the Social Security Law, part 3.7.4.60

Arcibal v Secretary, Department of Family and Community Services (2002) 36 AAR 53

REASONS FOR DECISION

25 June 2009 Mrs Josephine Kelly, Senior Member      

SUMMARY

1.      The Applicant’s name and address in these proceedings are subject to a confidentiality order (s 35(2)(aa) and (b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act)). She will be referred to as "PLFX" throughout this decision.

2.      The facts underlying this claim are not in dispute. The Applicant suffers from psychiatric conditions, including Agoraphobia and Social Anxiety Disorder. She receives a disability support pension (DSP) and lives in accommodation provided by the New South Wales Department of Housing (NSW Housing). On 16 June 2008, the Applicant had to leave her home and stay in temporary hotel accommodation that was provided and paid for by NSW Housing, while it had renovations carried out to the bathroom of her home.  She returned to her home on 24 June 2008. 

3.      On 11 July 2008, the Applicant lodged a “Claim for Crisis Payment extreme circumstance and domestic violence” with Centrelink, which was rejected on 16 July 2008. In the claim form, the Applicant specified 1 January 2008 as the date the "event occurred", and beside that date wrote “Its from ongoing and now 08". In response to the question “Have you left the home where you were living when the event occurred?”  she ticked the "Yes" box and wrote "recently went motel".  In summary, taking into account other answers to questions, the claim is a continuation of her ongoing dispute with NSW Housing.  She specified that the extreme circumstance she complained about was a rental crisis, that is living in conditions that she considers are unfit. 

4.      As I understand it, Centrelink has treated the claim as being for the period the Applicant had to move to the temporary accommodation while the bathroom renovations were carried out.  This is reflected in the decision of the Centrelink Authorised Review Officer (ARO) who affirmed the decision to reject the claim on 25 July 2007, finding that:

(a) the Applicant moved to temporary accommodation from 16 to 24 June 2008,

(b)  NSW Housing had paid for the Applicant’s temporary accommodation;

(c)  a claim for crisis payment was sent to the Applicant on 13 June 2008; and

(d)   the Applicant faxed Centrelink a letter on 25 June 2008, after which she Applicant claimed a crisis payment on 11 July 2008.

5.      On 4 September 2008 the Social Security Appeals Tribunal (SSAT) affirmed the ARO's decision. The Applicant seeks review in this Tribunal.

ISSUE

6. The issue is whether the Applicant qualifies for a crisis claim payment. To do so, her circumstances must satisfy all the criteria set out in s 1061JH of the Social Security Act 1991 (the Act), which provides:

1061JH  Qualification—extreme circumstances forcing departure from home

(1)  A person is qualified for a crisis payment if, after the commencement of this section:

(a)  the person has left, or cannot return to, his or her home because of an extreme circumstance; and

(b)  the extreme circumstance makes it unreasonable to expect the person to remain in, or return to, the home; and

(c)  the person has established, or intends to establish, a new home; and

(d)  at the time the extreme circumstance occurred, the person was in Australia; and

(e)  the person makes a claim for a crisis payment within 7 days after the extreme circumstance occurred; and

(f)  on the day on which the claim is made:

(i)  the person is in severe financial hardship (see section 19D); and

(ii)  the person has made a claim (whether on the same day or on an earlier day) for a social security pension or benefit and the person is qualified for the pension or benefit; and

(g)  during the 12 months immediately preceding the day on which the claim is made, no more than 3 crisis payments have been payable to the person based on:

(i)  the qualifications set out in this section; or

(ii)  the qualifications set out in section 1061JHA (remaining in home after removal of family member due to domestic or family violence).

Note: Examples of extreme circumstances that would qualify a person for crisis payment are the person’s house being burnt down, or the person being subjected to domestic or family violence.

(2)  A person is not qualified for a crisis payment in respect of an extreme circumstance if the Secretary is satisfied that the extreme circumstance is brought about with a view to obtaining a crisis payment.

7.      For the reasons below, I have decided that the Applicant was not entitled to a crisis claim payment because she did not leave her home because of an extreme circumstance. 

THE APPLICANT’S CASE

8.      The Applicant gave evidence by telephone. She claimed during the hearing  that she is in a “rental crisis”, needs to leave her current home, and establish a new one. That is why she needs the Crisis payment. The Applicant told of her longstanding complaint to NSW Housing that a new home should be provided to her to help her overcome her psychiatric conditions and help her live a normal life.  She considers her “extreme circumstances” to be the poor conditions she has lived in for many years. Her particular complaints were of the lack of adequate fireproofing and fire exits, fumigation, wheelchair access and ventilation, her inability to use the bathroom before the renovations and of generally unsanitary conditions. The conditions were made worse by her psychological disability, which makes it difficult for her to leave the house. She maintained she was in extreme crisis.  She requires a new home. The Applicant claimed she had no food or money when she left the house with her son.   

CONSIDERATION

9. I have taken into account all of the material in the documents filed under s 37 of the AAT Act including all the medical reports filed. The Applicant filed voluminous additional documentary material with the Tribunal, including several handwritten letters to Centrelink and the Tribunal, a report from Mr Cohen, psychologist, dated 2 March 2009, and a report from Mr Mayr, psychologist, dated 16 March 2009. The Applicant also gave oral evidence by telephone.

10.     The Applicant suffers from several psychiatric conditions.  According to the most recent psychiatric reports from Mr Mayr and Mr Cohen, the Applicant suffers from Brain injury, Agoraphobia and Social Anxiety Disorder. I acknowledge that her conditions  make it difficult for her to leave her home.

11.     The material before the Tribunal demonstrates that the Applicant has a long history of complaints about the housing provided to her by NSW Housing.   As I said during the hearing, I have no power to address the Applicant's complaints about NSW Housing.  The only power I have is to decide whether or not she was entitled to the crisis payment she claimed. 

Was the Applicant subject to an extreme circumstance?

12. Unfortunately for the Applicant, her case is misconceived. I understand that she believes that she satisfies the criteria in s 1061JH(1) of the Act because she is in an accommodation crisis, she left her home while the renovations were carried out, unsatisfactorily in her opinion, and she has the intention of establishing a new home.

13. "Extreme circumstance" is not defined in the Act, although the examples are given in the note to the subsection set out above. Such a note is taken to be part of subsection 1061JH(1) (see s 39(1A) of the Act) . The examples listed in the note are not exhaustive (s 15AD of the Acts Interpretation Act 1901).

14.     A relevant consideration is the Guide to the Social Security Law at 3.7.4.60, which provides :

“An unforeseen and extreme circumstance can include (but is not limited to) home invasion (1.1.H.72), house fire or flooding”.

15. The meaning of “extreme circumstances” in s 1061JH of the Act was considered by Heerey J in Arcibal v Secretary, Department of Family and Community Services (2002) 36 AAR 53. At paragraphs 8 and 9 his Honour said:

“…The Tribunal properly took the examples given in the statute as simply a guide and not of course exhaustive of the circumstances which might constitute extreme circumstances.  That expression is not a technical term.  The OED defines the adjective "extreme" as:

"presenting in the utmost degree some particular characteristic."

The eviction of a tenant who does not pay rent is a normal and inevitable consequence and the Tribunal was entitled to find that it was not, in the relevant sense, an extreme circumstance.  Moreover, I think the Tribunal was entitled to look at the whole of the circumstances in which the applicant left his home.  These included the provision of alternative accommodation on that night and subsequently.  The net result is that the applicant was not rendered homeless and continued to receive his Social Security benefit”. 

16.     While it was necessary for the Applicant to leave her home while the bathroom renovations were carried out, unsatisfactorily in her view, I do not accept that that was an extreme  circumstance because:

(a)NSW Housing arranged for and paid for the alternative temporary accommodation at a hotel;

(b)The Applicant was given cabcharges to transport herself from home to the hotel and from the hotel back to home;

(c)The Applicant was not rendered homeless; and

(d)During the renovations, the Applicant continued to receive disability support pension (DSP).

17. As stated above, the Applicant's complaint is really a longstanding one about her accommodation which is provided by NSW Housing. She has requested new housing unsuccessfully for several years. She says that her current arrangements cause her extreme distress. That situation intensified when certain people occupied the premises next door to her. That is the "crisis" which she has endured for many years. Unfortunately, that circumstance also is not an extreme circumstance within s 1061JH of the Act.

18. For the above reasons the Applicant does not satisfy the criteria set out in s 1061JH(1) of the Act and therefore does not qualify for a crisis payment.

19. Given my conclusion, it is unnecessary to consider the remaining criteria in s 1061JH(1) of the Act. In the absence of an extreme circumstance the Applicant is unable to satisfy (a) to (e) of the subsection.

DECISION

20.     The decision of the SSAT dated 4 September 2008, affirming Centrelink’s decision to reject the Applicant’s claim for a crisis payment, is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ……[sgd]......…….

Steven Mulipola, Associate

Date of hearing:  2 April 2009

Date of decision:  25 June 2009

Representative for the Applicant:             Self-represented

Representative for the Respondent:       Centrelink Legal Services and Procurement