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

[2008] AATA 710

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 710

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5822

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SCOTT SIMPSON

Applicant

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

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date              14 August 2008

PlaceWyong

Decision The decision under review is affirmed.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Australian Government Disaster Relief Payment – meaning of adversely affected – whether rendered uninhabitable – no damage to principal residence –– decision under review is affirmed

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) 12 ALD 416

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)

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

14 August 2008 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1.      The decision of the Social Security Appeals Tribunal (‘the SSAT’) dated 24 October 2007, affirming the Secretary’s decision on 20 July 2007 to reject Mr Simpson’s claim by Mr Simpson 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, on 10 June 2007, the Minister for Families, Community Services and Indigenous Affairs made a Determination under s 1061L(2) of the Social Security Act 1991 (“the Act“) that the storm damage and major flooding which began on 7 June 2007 in the Central Coast and Hunter regions of New South Wales were a “Major Disaster”.

3.      On 26 June 2007 Mr Simpson lodged a claim form for AGDRP.  He stated he was adversely affected by the storm damage, as he had no food, no water, and no clothes, as they were all wet.  As a consequence he had to pay a friend for food and stay at his house.

4.      His claim was refused by Centrelink on the basis that his home was not destroyed or rendered uninhabitable for a period of 48 hours or more as a result of the disaster.  That decision was affirmed on internal review and by the SSAT. 

LEGISLATIVE FRAMEWORK

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

6. Pursuant to s 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 (No 4) 2007.  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’.

7.      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

8.      As there was no contention that Mr Simpson suffered a serious injury requiring hospitalisation as a result of the major disaster, the remaining issue was whether his principal place of residence had been destroyed or rendered uninhabitable for a period of 48 hours or more.

EVIDENCE

9. I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("T-documents").  Mr Simpson gave evidence and tendered a statement by Mr C White.

10.     In a telephone call to Centrelink on 4 July 2007, Mr Simpson said that water had entered through the bottom of the kitchen door and had flooded the entire premises.  He told the SSAT that “a small amount of water came in under the door.”  He also said that “the water [through the bed sitter in which he resides] was about a metre deep”.  Because the electricity was cut off the refrigerator and freezer defrosted and added to the flood water.  The resultant damage was food spoiled and some clothes in an adjacent cupboard became mouldy.

11.       In his statement in support of his application dated 20 July 2007, he said that as a result of the storms he did not have any power, the washing machine was broken and food had gone off, and that he had to find alternative accommodation for a week.

12.        Mr Simpson told me that his bed-sitter, which is owned by the NSW Department of Housing (‘DOH’), is on the ground floor of a complex of 8 – 4 at the front and 4 at the back.  All residents of the back 4 units, which backed onto his and were on a slope, had received the AGDRP. 

13.     He said that he was at home on Friday 7 June 2007 and it had been “bucketing down” all day and the electricity went off.  The road outside his place was flooded as stormwater drains were blocked.  The roadway was impassable to cars.  His place is about 5-10 metres from the roadway, which is 1-2 metres lower than his place.

14.     He said “a bit of water” came under the back door.  He noticed on Saturday morning that his carpet was soggy.  The wet patch came in to a distance of about 1 metre and spread to about 3 metres in width.  Because his place is so small this was about 1/3 of the bed sitter.  He put a sheet down to absorb some of the water.  Although the heater and air conditioner were on top of the carpet they were undamaged and were only “a bit damp”.

15.       He stayed at home all day on Saturday, and although the electricity was off he still had cold running water.  He was unable to cook so probably ate a sandwich.  He agreed the place was still probably able to be lived in but, as there was no electricity, it was cold.

16.     He agreed he had received no instruction from the police or SES to evacuate, but he observed that there were trees down in the street, that the street was flooded and there were emergency crews in the street.

17.     On Sunday he caught the bus to visit his father at The Entrance, as he often does.  He also went there in order to have a shower.  He took only some clothes with him.  He said he was unable to take food from the freezer because it was already beginning to defrost.  He stayed there, returning on the following Tuesday.  He thought his father may have been without electricity on Friday, but it was restored by the time he was there on Sunday.

18.       When he returned on Tuesday the defrosting fridge/freezer had soaked the kitchen floor and the food was spoiled.  He had to throw out some chops, sausages, pies and fish fingers.  The damp patch of carpet remained and he used the heater and air conditioning for about 24 hours to dry it out and he left the front and back door open.  Subsequently the bed sitter smelled a bit, and 2 shirts in the cupboard went mouldy. He did not attempt to wash them to clear the mould and they remain, today, mouldy in his cupboard.

19.     The only other damage was to his antenna which was on a pole outside which was blown over.  He phoned the DOH about his antenna but they were unable to assist.

20.     He said Mr White, who lives at the back of the block, had told him about the flood relief payment, as he had not previously known anything about it.  He thought he might get reimbursement for his antenna.

21.      Mr White had dictated the statement which Mr Simpson wrote for him.  Mr White stated that the water had been “all over bedroom and kitchen floor about 5 cm high”.

22.     Mr Simpson said he had borrowed money for the bus fare and to buy food for his father, as he does the shopping for his father.  Mr White confirmed he had lent Mr Simpson $120.

23.     Mr Simpson was asked to comment on his statement in his claim form that he had stayed with friends.  He said there was not much difference between ‘friends’ and ‘father’.  Similarly, although he had told the SSAT that he went to his brother’s, he in fact did not go there until the following Friday.

CONSIDERATION OF THE EVIDENCE

24.     Mr Simpson’s evidence was that he left his home on Sunday 10 June and returned the following Tuesday.  There was also a note of a telephone conversation of 4 July 2007 in which Mr Simpson told Centrelink that he returned to the premises on Monday 11 June and that the power was out until 3pm that day.  There was some inconsistency in his account of where he stayed, but on his evidence before me I accept that he stayed with his father at The Entrance, at least on Sunday 10 June.

25.      There were also inconsistencies in Mr Simpson’s evidence regarding the amount of water which entered the premises.  He told me that “a bit of water” came under the back door making a soggy patch of carpet of about 3 sq metres - about 1/3 of the bed sitter.  In a phone call to Centrelink on 4 July 2008 he is reported as saying that the flood water had “flooded right through the premises”.  This is at odds with his evidence to the SSAT both that “small amount of water came in under the door” and that “the water [through the bed sitter] was about a metre [!] deep”.  Mr White’s account that the water was 5 cm deep all over the bedroom does not even accord with Mr Simpson’s own evidence.

26.     If the premises had been uninhabitable, it is reasonable to assume there should have been residual damage requiring the attention of the DOH.  An enquiry was made by Centrelink to DOH as to any reported damage to Mr Simpson’s residence. On 19 July 2007 DOH advised Centrelink there were no reports of any damage to Mr Simpson‘s property. 

27.     Other than the carpet, according to Mr Simpson‘s evidence, which I accept, the only damage was to the antenna, the loss of food occasioned by the lack of electricity and 2 mouldy shirts.  Further I accept that the bed sitter was made smelly and damp by the flood water, with the added inconvenience of no electricity for about 3 or 4 days.

28.       I was referred to the Guidelines for payment of AGDRP.  Centrelink submitted that Mr Simpson’s circumstances do not fall within any scenarios listed in the Guidelines.  In particular, my attention was invited to a scenario which was said not to attract eligibility:

Food in fridge or freezer spoilt due to electricity outage and house not rendered uninhabitable  Not eligible

29.     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) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

30.     As I discussed at the hearing, the scenario to which I was referred is unhelpful in that it is circuitous; returning attention to whether the premises are ‘uninhabitable’.

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

32.     Mr Simpson stayed in the bed sitter on Friday and Saturday nights, notwithstanding that there was no power or hot water.  There was no evidence that Mr Simpson’s home was under threat of actually being flooded.  There was no evidence, for example, of the police or SES raising the possibility of the need to evacuate.  Mr Simpson did not remove any contents of the bed sitter, nor when he left on Sunday to go to his father’s did he take anything other than a few clothes.  His decision to leave was so that he could see his father, as he frequently did, and he also welcomed the opportunity to have a shower.  It was not because his home was uninhabitable, as clearly he had already found it acceptable to remain there for 2 nights in circumstances where its condition had not further deteriorated.

DECISION

33.     The decision under review is affirmed.

I certify that the 33 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  7 August 2008
Date of Decision  14 August 2008   
Advocate for the Applicant       Self-represented   
Solicitor for the Respondent     Mr K Bullock, Centrelink Legal Services