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Social Security Reporter |
Australian government disaster recovery payment: stranded at or stranded in
(2011/904)
Decided: 16th December 2011 by P. E. Hack
Mrs W Mason and Mrs S Mason lived in adjacent properties in Cape Tribulation, a small township north of Cairns. In the early hours of 3 February 2011 Cyclone Yasi struck parts of North Queensland, including Cape Tribulation. The Masons’ properties were directly affected; trees were brought down, fences were damaged and access roads were blocked by fallen trees. The Masons could drive only a few kilometres to the south and a few metres to the north.
The Attorney General made a determination that Cyclone Yasi was a major disaster. The Masons considered they were adversely affected by the cyclone and each made a claim for the ‘Australian Government Disaster Recovery Payment’ to be paid. Centrelink rejected the claims.
The issue in this case was whether the Masons were adversely affected by a major disaster.
Section s1061L Social Security Act 1991 (the Act) states that the Minister may determine the way in which it will be decided if a person is adversely affected by a major disaster. The Social Security (Australian Government Disaster Recover Payment) Determination 2011 (No.4) (the Determination) was made on 3 February 2011. Schedule 2 provides:A person is adversely affected by a major disaster mentioned in Schedule 1 if:
(a) as a direct result of the disaster:
(i) the person is seriously injured; or
(ii) the person is an immediate family member of an Australian who is killed; or
(iii) the person’s principal place of residence has been destroyed or has sustained major damage; or
(iv) the person is unable to gain access to his or her principal place of residence for at least 24 hours; or
(v) the person is stranded in his or her principal place of residence for at least 24 hours; or
(b) as a result of the disaster, the person’s principal place of residence was without electricity, water, gas, sewerage service or another essential service for at least 48 hours; or(c) the person is the principal carer of a child to whom paragraph (a) or (b) applies.
The Masons relied on the clause (a) (v) stating that they were adversely affected by Cyclone Yasi because they were stranded in their homes for at least 24 hours.
The Masons argued that every other person living in the township had received the disaster payment.
The AAT considered the Determination should be given a fairly narrow operation. Paragraph (a)(v) requires a person to be unable to leave their principal residence for 24 hours and, conversely, (a)(iv) requires a person to be unable to access their principal residence for 24 hours.
The AAT held that the Masons were not stranded in their principal residence, that they had the capacity to leave their residences, even though they could not travel far. The AAT referred to clause (2) of the Determination stating that a person’s principle residence is the place at which they normally reside, whereas the person was to be adversely affected if they were ‘stranded in' their principal residence.
If the Determination had defined adversely affected as ‘stranded at' their principal residence they might have satisfied the criteria, however, the AAT held that the Masons were able to leave their residences and that they were therefore not stranded in their residence for 24 hours. The decision to reject the payment was correct.
The AAT held that the entitlement to payment must be determined by reference to the Masons’ circumstances, not those of other persons, and, if the payments had been made wrongly to others, that could not affect this decision.
The decisions under review were affirmed.
[M.R.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2012/9.html