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

[2008] AATA 1086

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1086

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2211

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAMELA WALTON

Applicant

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

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date3 December 2008  

PlaceSydney

Decision The Tribunal affirms the decision under review.

.....................[Sgd].........................

Ms G Ettinger
  Senior Member

CATCHWORDS

Australian Government Disaster Recovery Payment – Applicant not adversely affected – she was inconvenienced – she does not meet the Guidelines – house not uninhabitable during floods – Applicant remained in the house – decision under review affirmed.

Social Security Act 1991 ss 36, 1061K, 1061L

Re Simpson v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 710

Re Gleeson v 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

REASONS FOR DECISION

3 December 2008   Ms G Ettinger, Senior Member

1.      The matter before the Tribunal is the appeal of Mrs Pamela Walton, against the decision of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, who rejected Mrs Walton’s claim for the Australian Government Disaster Recovery Payment.  The decision was affirmed by the Authorised Review Officer and the Social Security Appeals Tribunal.

2.      The hearing before me was by telephone; Mrs Walton was self-represented, the Secretary was represented by Ms R. Harlock. 

ISSUE BEFORE THE TRIBUNAL

3.      The issue before me is whether Mrs Walton was adversely affected as a direct result of the storms, and associated flooding in the Central Coast and Hunter regions of New South Wales in June 2007, and whether she is therefore eligible for the Australian Government Disaster Recovery Payment. 

LEGISLATIVE CONTEXT

4. The relevant legislation, to determine eligibility for the Australian Government Disaster Recovery Payment is contained in sections 36, 1061K and 1061L of the Social Security Act 1991 (the Act).  The purpose of the Australian Government Disaster Recovery Payment, is to provide immediate short-term financial assistance to eligible Australians adversely affected by a major disaster, and I am satisfied that the events of June 2007 were thus classified. The amount of the payment which can be made is governed by part 2.24, division 2 of the Act. 

5. Qualification for the Australian Government Disaster Recovery Payment is set out in section 1061K of the Act. To qualify, a person must, among other things, be adversely affected by a major disaster, within the terms of the legislation. On 10 June 2007, the Minister made a determination under section 1061L(2), Social Security (Australian Government Disaster Recovery Payment) Determination 2007(No. 4).  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. 

6.      Schedule 2 of that Determination, specified that if a person was adversely affected by this major disaster, if as a direct result of it, the person was seriously injured and required hospitalisation for at least 48 hours.  In the alternative, adversely affected included the situation where the person’s principal place of residence had been destroyed, or rendered uninhabitable for a period of 48 hours or more.  And it is, of course, the latter which must be considered in relation to Mrs Walton’s claim. 

7.      

Now, there are also policy Guidelines promulgated to assist decision-makers.  Whilst they are not binding on the Tribunal, we take them into account as government policy, unless there is a good reason not to.  The authority for that proposition, lies in the case of Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, and many other cases where Guidelines have been applied. And, in this case, I would see no reason not to follow the

Guidelines.  The Guidelines state, that the key issue, is whether the person’s principal place of residence has been destroyed or rendered uninhabitable as a direct result of the storm damage or associated flooding which occurred in June 2007.  The Guidelines, further state, that the principal place of residence is rendered uninhabitable, if access to utilities is unavailable for seven days or more, as a direct result of that storm damage or flooding. 

THE EVIDENCE AND SUBMISSIONS

8.      Mrs Walton confirmed that there were storms and flooding in her area on 7 June 2007.  She lives alone, and is concerned that other people in the area, who suffered damage, and were without electricity, as she was, for five and a half days, were awarded the Australian Government Disaster Recovery Payment.  Unfortunately, I cannot be of assistance in that regard, and every case is different.  My job is to look at Mrs Walton’s claim.  Mrs Walton told me in a forthright manner, and without hesitation, how upset she was.  She is very independent, and decided not to accept her son’s offer to go and stay with him when the rains and flood came.  He did however bring her some food, and a thermos of tea, during the electricity black-out.  However, essentially, she stayed in her home, and coped without hot water or cooking facilities.  She said that she went to an elderly neighbour’s place late in the evening, just to sleep, because she did not want to be a burden on the neighbour. 

9.      Mrs Walton told me that she had a torch near her front door, for the walk through water down five houses or so, to her neighbour’s place.  She said that the main difficulty, she experienced is because her eyesight is so bad. She was terrified coming down her stairs with a candle when it was dark. In the heat of the moment, she did not think to use the torch, or ask anyone else for something else, say a gas lantern. She told me that one candle singed her carpet, when it tipped over.

10.     Mrs Walton’s other main problem was being able to see to take the many pills she has to take, approximately 13 in the morning, and 10 at night.  The Webster pack in which they come, only holds seven at a time, so they are tightly arranged, and all come out at once sometimes. She said that she did not think to tip them into a bowl as suggested by Ms Harlock, because she was distressed, and cannot see well. I note that in the morning, she was able to take her pills in daylight.  But, of course, in June, it is dark early, and taking the evening pills before bed-time, would have been difficult if she had not been at her neighbour’s. 

11.     Mrs Walton’s evidence is that she was very well before September 2006, but since that time, has spent time in hospital having investigations, and is now afflicted with vision problems, as documented by Dr Lee, whose report appears in the T-documents. 

CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

12.     Now, having heard all the evidence, I had to decide what we should do. So, in coming to a decision whether Mrs Walton can be paid the Australian Government Disaster Recovery Payment, I needed to take into account the evidence and submissions before me, and the legislation and Guidelines to which I have referred above.

13.     I noted that Mrs Walton made two applications for the Australian Government Disaster Recovery Payment.  She told me that after having made the first application, which is at T5 dated 21 November 2007, she was asked to supply a medical report in support of her statement regarding her health.  She said that when she had Dr Lee’s letter, she was then required to submit a second application, which is at T9, dated 7 January 2008.  I asked Mrs Walton about the applications.  In the first application, she indicated that she was without electricity for more than a week, and that she returned to her home on 16 June 2007.  This was different from what she wrote in the second application, where she said that she had no electricity for five and a half days, and that she had roof damage.  She agreed that what she had put in the first application was inaccurate. She confirmed the roof damage had let rain into her lounge room, and that her insurance company had paid for it to be fixed, and that she was without electricity for five and a half days.

14.     Mrs Walton also confirmed for me that she did not have to move out of her home as she spent the days there during the period, without electricity and that she only left at night to sleep at her neighbour’s place.  Ms Harlock also submitted that she had water and sewerage operating. 

15.     Accordingly, in making a decision, I accept the submissions of the Respondent to find that Mrs Walton’s home was not uninhabitable, neither that it was destroyed.  It was very inconvenient to live without electricity, but Mrs Walton did not need it, for example, to supply oxygen for her in order to breathe, or for other medical equipment for which electricity is required. 

16.     In coming to a decision, I considered a number of cases which deal with similar situations.  Ms Harlock, in her documents, referred me to the recent decision of Re Simpson v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 710, where the Tribunal rejected the contention that a home was uninhabitable due to minor water damage and loss of electricity. The Tribunal, there held, and I quote:

“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.” 

17.     I was mindful, that Mrs Walton told me that the SES rang her because her sister was concerned about her welfare, but that there was, in fact, no threat or actual flooding near her home, and no evacuations. In Re Gleeson v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 864, the AAT found that an uncomfortable situation, where carpet was sodden, and the roof was leaking in the bathroom did not make a house uninhabitable.

18.     Accordingly, based on the legislation, the case law and the Guide, I cannot find that Mrs Walton was adversely affected by a major disaster, within the terms of the legislation, as the electricity was out for only five and a half days from 8 - 13 June 2007, and Mrs Walton was, albeit with difficulty and inconvenience, able to stay in her own home. 

19.     Her home was not destroyed, or rendered uninhabitable as a direct result of the storms and flooding, in her area, in June 2007.  I accept, of course, that Mrs Walton was anxious and depressed with the situation. However, she is not eligible for the Australian Government Disaster Recovery Payment, and the decision on the review must be affirmed. 

DECISION

20.     The Tribunal affirms the decision under review. 

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         ..................[Sgd].....................................................
  Associate

Date of Hearing  3 December 2008          
Date of Decision  3 December 2008
The Applicant  Self represented
Advocate for the Respondent   Ms R Harlock