Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Richard Hoare
[2009] AATA 257
•21 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 257
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4189;
2008/4192
GENERAL ADMINISTRATIVE DIVISION ) Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Applicant
And
Richard Hoare
Respondent
DECISION
Tribunal Prof. T Sourdin Date21 April 2009
PlaceSydney
Decision The decision of the SSAT is affirmed. Each Applicant is entitled to the Australian Government Disaster Recovery Payment.
..................[sgd].......................
Prof. T Sourdin
Member
CATCHWORDS
SOCIAL SECURITY - Australian Government Disaster Recovery Payment - applicants forced to evacuate home due to landslip at rear of property - residence rendered uninhabitable - SSAT decision affirmed
Relevant Act/s
Social Security Act 1991 – Sections 1061K, 1061L
Relevant Case Law
Simpson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 710
O’Hearn and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 595
Re Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 864
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
Additional Materials
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
21 April 2009 Prof. T Sourdin 1. The decision under review is the decision made by the Social Security Appeals Tribunal (“SSAT”) on 6 August 2008 to set aside the decision made by a Centrelink authorised review officer on 31 January 2008 to reject the claim by Mr Richard Hoare and Mrs Doris Hoare (the Respondents) for the Australian Government Disaster Recovery Payment (“AGDRP”). If eligible, Mr and Mrs Hoare would each be entitled to receive $1,000 as a payment under the AGDRP Scheme.
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, Housing, Community Services and Indigenous Affairs. Mr and Mrs Hoare lodged a claim for the AGDRP. In the claim form, they claimed to have been adversely affected by the floods because their home became uninhabitable as a result of a landslip at the rear of the property which caused them to fear that they were in danger and that the house could be severely and adversely affected and the subject of further land slippage.
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. The issue is whether the family’s principal place of residence at Warners Bay was rendered uninhabitable for a period of 48 hours or more at the relevant time.
Evidence
7. I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents"). Mr Hoare also gave oral evidence at the hearing.
8. I also confirmed with the representative for the Applicant that there was no objection and no disagreement with either the SSAT summary of the information provided at the hearing or to the Findings of Fact made by the SSAT. The SSAT recorded that the following information was provided to the SSAT hearing:
· Mr Hoare told the Tribunal that they had built their home on top of the hill of a steeply sloping block. When they purchased the block about 10 years ago it had already been made fairly level by placement of fill. The fill tapers from about six metres in depth at the back of the block to about 0.6 metres at the front of the house. The back of their house was built on three meters of fill. The house was built on concrete piers which reach down beyond the fill to the natural ground level. The concrete slab rested on these piers.
• Mr Hoare said that after the storm hit their area there was a landslip at the back of their block. Mr Hoare confirmed that their house is situated on level ground about 12 meters from the rear fence. The 12 meters of land between the house and the rear fence is level. Their actual property boundary lies three to five metres beyond the rear fence and it was in this area outside the fence that the landslip occurred. The land eroded to within about one metre of the fence but the fence itself did not fall down. The area of land that slipped was about 20 metres in length. Mr Hoare said it looked like a straight cliff.
• Mr Hoare said that he was concerned, knowing that the fill was there, that there could be further slippage which would erode the land back to the house. He thought that if the piering was washed out the front of the house would go down. The house was not designed to withstand the loss of the fill from beneath.
• Mr Hoare said that because of this concern he and his wife decided that it would be unsafe to stay at the house. They went to stay in Sydney with Mrs Hoare's daughter. Mr Hoare travelled back to the house each day to check up.
• On Friday 15 June 2007 a Geotechnical engineer came out to inspect the property and prepared a report. The Report confirmed that there had been slippage and the resulting instability was such that it recommended that an area, two meters inside the fence be quarantined off to prevent any risk to people walking over the land. The Report confirmed that the house was stable.
• Mr and Mrs Hoare were away from their house for four days. The power was out in the house for those four days.
The SSAT found that:
(i) Mr and Mrs Hoare live at Warners Bay, an area affected by the June 2007 Hunter Valley and Hunter/Central Coast storms
(ii) Mr and Mrs Hoare's house sits on top of the hill of a steeply sloping block which was made more level by the use of in fill.
(iii) As a result of the storms substantial land slippage occurred at the bottom of their block of land.
(iv) Mr Hoare was concerned that further slippage could result in the fill being washed out from beneath the house causing the hose to collapse.
(v) As a result of that concern Mr and Mrs Hoare evacuated their home for four days following the storm.
9. In addition to the material previously provided to the SSAT, I was provided with a copy of a report dated 22 December 1993 from Coffey Partners International Pty Ltd concerning the land fill and characteristics of the land upon which the residence of the Hoares is located and the characteristics of the adjoining land.
10. Mr Hoare also gave evidence at the hearing before the AAT and told me that he and his wife experienced torrential rain and storm conditions on their property during Friday, 8 of June 2007. During that night, the power was cut off and Mrs Hoare was terrified. She slept on the settee and was too concerned about her safety to sleep in the bedroom on the property. Mr Hoare indicated that throughout the night he attempted to inspect parts of the house by torchlight and that the visibility without torchlight was ‘nil’. Both Mr and Mrs Hoare were very concerned that water would flood through the house as the water was running like a river to the top of the first step of the house and then running down the sides of the house to the back of their block. The water was also pooling, sheeting and lapping onto the balcony.
11. On the morning of Saturday 10 June 2007, Mr Hoare walked to the rear of his property which is sloped to the rear. When he checked the property he discovered that there had been a significant landslip. A large chasm or scarp had opened up at the rear of his property that was approximately 20 metres wide and ten metres deep. Mr Hoare then decided to evacuate his property. He was aware that the rear of the property could be subject to a land slip as he had previously been advised of this when he purchased the property. He had constructed his house with advice from the local Council about stabilising the house with deep underpinnings. However, the land slip was so significant that he was concerned that both he and his wife would be in danger and at significant risk if they remained on the property and in the house. Mr Hoare considered that it was likely that there would be a significant danger that the house would be subject to a complete slide even if it stopped raining as the back of the house was on three metres of fill and was less than 12 metres from the slip edge. Mr Hoare also noted that the area soils are prone to subsurface seepage following a rain event and was concerned that the whole area was unstable. Notably, part of the road on the other side of the ridge from his residence was closed off following these events because of other significant land slippage issues.
12. Mrs Hoare then packed up important documents, family and wedding photographs and she and Mr Hoare left the property and travelled along high level back roads to Sydney to stay with their daughter. Mr Hoare described this as a traumatic and frightening trip.
13. Mr Hoare returned to check the property on 11, 12, 13 and 14 June 2007 for periods of 30 – 60 minutes. Each time he returned, he parked his car some 30 metres away from the house and driveway and inspected the slippage area before checking briefly on the house and land to ensure that it was secured and that windows were not broken. He was aware that there was continued slippage in the main area of slippage and that water continued to pour out of the earth areas. He considered that there was a significant and real risk that the house could slip into the large slippage area.
14. He was unable to locate anyone to complete an inspection of the property until 15 June as all services in the area were so busy. On the 15th of June a Geotechnical expert visited the property (see T4 at 14) and verbally advised Mr Hoare and his wife that they could return to the property.
15. The Geotechnical Report (at T4, p 14) is a one page report that was intended to provide an ‘initial response’ to the weather incident. The Geotechnical Engineer found that there was a substantial slip at the rear of the Hoares’ property but that there was no immediate threat to life or property. The Geotechnical Engineer considered that the threat was a medium level threat if there was further rainfall and that there was a high level risk of undercutting of the embankment. He also recommended more investigation and longer term stabilisation works (this has now been completed).
Consideration of the Evidence
16. There was no dispute that the house only received minor damage and that the utilities were cut off for a period of approximately four days. The issue was whether the home was uninhabitable.
17. 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 (Attachment A to the Applicant’s Statement of Facts and Contentions) (“the Guidelines”). The Applicant submitted that the Respondents’ circumstances did 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 be additional evidence relating to the loss of utilities such as a longer loss of power, water and sewerage (as in the ‘Examples of possible claims’ set put in the Guidelines document). In this case, there was some minor water damage, a small amount of damage to the tiled roof and a temporary loss of power that affected the property for four days.
18. This Tribunal has previously considered issues arising out of the same weather event in other decisions and the Applicant referred to three particular decisions – Re Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 864, Simpson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 710 and O’Hearn and Secretary, Department of Familites, Housing, Community Services and Indigenous Affairs [2008] AATA 595. This matter is similar in many respects to the matter of O’Hearn v SDFHCSIA [2008] AATA 595, and I have adopted a similar ordering in this reasons for a decision to that adopted by the Senior Member in O’Hearn. In that matter, the member noted at [20]-[21] that:
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 Ethnic 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.
19. On O’ Hearn, the matter involved a family who had evacuated their property as a result of flooding that they feared would affect their residence. The flooding affected the stables on their land but their residence sustained only minor damage (as in this case). The weather event in the O’Hearn case and this matter involved the same flooding in the Central Coast and Hunter regions that began on 7 June 2007 and the Guidelines and relevant legislation are identical.
20. The Senior Member in O’Hearn noted at [23]-[24] that:
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 ‘uninhabitable’ as “Not habitable, not adapted to human habitation, uninhabitable”.
21. The Senior Member in O’Hearn also noted at [25] that:
…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.
22. In O’Hearn, the family home did not sustain major damage but was still regarded as uninhabitable. In O’Hearn at [26],
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.
23. The Applicant in this matter (the Secretary) indicated that in its view, I should not follow the decision in O’Hearn as either:
1. The circumstances in O’Hearn are too dissimilar; or, in the alternative
2. O’Hearn was not correctly decided.
24. The Applicant submitted that the decisions of Simpson and Gleeson that involved the same weather event, legislation and guidelines, but naturally different personal circumstances, were correctly determined and that each of these decisions indicate that:
A decision to leave a property because of inconvenience (loss of power etc) ‘does not make a house inhabitable’ (Gleeson and Simpson)
25. In this case, I am satisfied that, as in O’Hearn, Mr and Mrs Hoare vacated their premises for safety reasons and that they considered that they faced a significant risk that the house would slide into the chasm that had appeared at the bottom of their garden. The question is, however, whether the threat or risk made the house ‘uninhabitable’ within the meaning of the Act and Guidelines? In my view this proximate threat did make the house uninhabitable. This matter is readily distinguishable from both Simpson and Gleeson in that in both those matters the Tribunal assessed the facts and determined that Simpson and Gleeson left their homes because they were inconvenienced and that any risk or fear was stressful but not significant.
26. In this matter, Mr and Mrs Hoare left their home because of the significant risk that they faced. The fact that they had a legitimate apprehension of danger is important. The fact that the danger did not eventuate is one relevant factor that the decision-maker can consider. However, as noted by the SSAT in this matter referring to O’Hearn, ‘to have remained would have put the family in danger and leaving was the prudent course.’ In this matter, the risk of remaining was so significant and proximate that it rendered the house uninhabitable and, as in O’Hearn, I find that there is no requirement for a house to have sustained damage for it to become uninhabitable.
27. The Secretary also noted that Mr Hoare returned to the house on a daily basis for a short period and submitted that this was evidence that the house was habitable. Mr Hoare indicated that he returned to the property with considerable caution and, as previously indicated, Mr Hoare gave evidence that he parked some distance away, examined the land slip area from another property before cautiously venturing on to his own property. This evidence in my view suggests that the property was indeed uninhabitable – that is – although it could be briefly visited with a cautious approach – it could not be lived in and nor could a sensible and reasonable occupant spend any significant time in the property.
28. In summary, I have come to the view that the Hoare home was rendered uninhabitable for a period of at least 48 hours and therefore each of the Applicants is entitled to the AGDRP.
Decision
29. The decision of the SSAT is affirmed. Each Applicant is entitled to the Australian Government Disaster Recovery Payment.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Prof. T Sourdin, Member.
Signed: …………………[sgd]…………..........................
AssociateDate of Hearing 7 April 2009
Date of Decision 21 April 2009
Solicitor for the Applicant Pankaj Sharma, Centrelink Legal ServicesAppearance for the Respondent Self-represented
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