Editors --- "Disaster recovery payment: uninhabitable residence" [2009] SocSecRpr 16; (2009) 11(2) Social Security Reporter, Article 5

• SECRETARY TO THE DFHCSIA and HOARE
• Background
• The issue
• The law
• The decision
• Formal decision

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Disaster recovery payment: uninhabitable residence

SECRETARY TO THE DFHCSIA and HOARE

(2009/217)

Decided: 21st April 2009 by T. Sourdin

Background

In June 2007 the Central Coast and Hunter regions of New South Wales were hit by severe flooding, as a result of which

the Australian Government Disaster Recovery Payment (AGDRP) scheme was activated. Mr Hoare lodged a claim for disaster relief, but this claim was rejected by Centrelink, a determination reversed by the SSAT in August 2008.

Hoare had built his house on the top of a steeply sloping block, because of which the house was built on concrete piers which extended through land fill to the solid ground below. During the rain storms, power was cut off to the property, and during the night water was running through the property from adjoining land.

A landslip which resembled a straight cliff for about 20 metres occurred at the back of the Hoare property, after the flooding. Hoare was concerned, because of the land fill on which his house had been constructed, that further slippages could occur, and that the house itself could slide. He believed that he and his wife would be in significant danger if this were to occur, and so for safety reasons they moved out of the house to live temporarily with their daughter. Hoare returned daily to check the condition of the house, parking some distance away and venturing onto the property with caution. He noted on these visits that there was continued slippage of land, and that water continued to pour from earth areas on the property. A geotechnical inspection of the property noted that despite the substantial slip at the rear of the Hoare property there was no immediate threat to the house, but recommended quarantining of a designated area of land thought to be risky to persons walking on it. After that inspection, Hoare and his wife returned to the home. The utilities to the property remained disconnected and Hoare was absent from the home, for four days.

The issue

The key issue in this case was whether Hoare’s residence was uninhabitable for 48 hours or more, and if so whether he was eligible to receive AGDRP.

The law

The qualification for AGDRP is set out in s.1061K of the Social Security Act 1991 (the Act) which requires that, to qualify, a person must be ‘adversely affected’ by a major disaster. Pursuant to s.1061L of the Act, the Minister may determine in writing, regarding a major disaster, the circumstances in which persons are to be taken to be ‘adversely affected’ by that disaster. On 10 June 2007 the Minister made such a determination, Schedule 2 of which specified that a person was adversely affected by the NSW flooding if ‘[as] a direct result of the [flooding] ... the person’s principal place of residence has been destroyed or rendered uninhabitable for a period of 48 hours or more’.

The decision

The Tribunal considered the Guidelines for the AGDRP and noted that although not bound to apply such guidelines this would usually occur unless there were strong reasons for not doing so.

The Tribunal noted the conclusions in 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 that a decision to leave a property because of inconvenience – loss of utilities, for example – does not make a house ‘uninhabitable’. However, the Tribunal decided that Hoare and his wife had left their home because of legitimate safety concerns which, although those concerns did not eventuate, rendered the house uninhabitable. The Tribunal agreed with O’Hearn and Secretary to the DFHCSIA [2008] AATA 595 that it was not necessary for a house to have actually sustained damage for it to be uninhabitable.

Formal decision

The Tribunal concluded that the house was rendered uninhabitable for at least 48 hours, and so Hoare was entitled to the AGDRP.

[P.A.S.]