Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 945
ADMINISTRATIVE APPEALS TRIBUNAL	)
	)	No 2009/4924 
GENERAL ADMINISTRATIVE DIVISION	)	
	Re	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICE AND INDIGENOUS AFFAIRS  	
	Applicant
	And	NATALIA DREADON  	
	Respondent
DECISION
Tribunal	Deputy President P E Hack SC 	
Date	13 November 2009  
Place	Brisbane 
Decision	The Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes a decision in the same terms as the decision of the applicant dated 15 July 2009.
  	
	.............Signed...................
	Deputy President 

CATCHWORDS 
SOCIAL SECURITY – disaster recovery payments – whether common area of apartment building constitutes part of principal place of residence – whether major damage sustained – inability to reside in principal place of residence not within the terms of the Determination – Secretary’s appeal - decision of SSAT set aside  
Social Security Act 1991 (Cth) ss 1061K(1), 1061L
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No 5)

WRITTEN REASONS FOR DECISION

13 November 2009 	Deputy President P E Hack SC 		

1.	The Australian Government has a policy of making financial assistance available to persons adversely affected by natural disasters. One such disaster was the storm that affected South-east Queensland in May 2009. 
2.	Ms Natalia Dreadon, who lives in an apartment block at Bowen Hills, was adversely affected by the storm if that expression is given its ordinary meaning. But the question I have to decide is whether the consequence to her satisfied the criteria for assistance that have been determined by the responsible Minister.
3.	There is no dispute about the background which I take essentially from the Statement of Facts and Contentions lodged on behalf of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs on 6 November 2009 and from Ms Dreadon’s comments on those matters of fact. 
4.	Ms Dreadon lived in a ground floor apartment of an apartment building at Campbell Street, Bowen Hills. On the evening of 20 May 2009 she returned to her apartment building after work but found that she was unable to access the building because of local flooding. She waited for about an hour but after realising that she would not be able to access her apartment that evening she arranged alternative accommodation.
5.	The following day she again returned to the building. She was able to access her apartment but was advised not to use the amenities, including the toilets, because of a gas leak. Ms Dreadon stayed in her apartment that evening but was unable to use the shower or toilet. Thereafter, until she returned to the apartment on 27 May 2009, she made temporary accommodation arrangements. In the result, for a period of about 7 days, she was unable to reside in her apartment.
6.	It is agreed that Ms Dreadon’s apartment was not submerged by water or associated debris, that water did not enter the apartment and that it was not declared structurally unsound. What it seems occurred is that a storm-water pipe and sewerage pipe beneath the surface of the car park of the apartment complex ruptured causing significant local flooding. But the flooding was confined within the basement and did not enter the residential parts of the complex. There was, as well, damage to the floor of the car park but there is no evidence that that damage was structural.  
7.	Following the event Ms Dreadon made a claim for a disaster recovery payment but her claim was rejected by Centrelink on 15 July 2009. That decision was affirmed on internal review on 19 August 2009. On 16 September 2009, on Ms Dreadon’s application, the Social Security Appeals Tribunal set aside the earlier decision and substituted a decision that Ms Dreadon was qualified for the payment. The key findings of that Tribunal were that there had been a failure of the sewerage system in the block and that Ms Dreadon had been adversely affected because the sewerage system within her apartment was unusable.
8.	The Secretary, by application lodged on 16 October 2009, seeks a review of the decision of the Social Security Appeals Tribunal. I mention, for completeness, that implementation of that decision was stayed, by consent, on 30 October 2009 and the matter was listed for an expedited hearing.
9.	The qualifications for a disaster recovery payment are set out in s 1061K(1) of the Social Security Act 1991 (Cth). The Secretary accepts that Ms Dreadon satisfies the requirements in s 1061K(1)(a) and (b), of that subsection dealing with age and residence. What remains in issue is the requirement of s 1061K(1)(c) of the Act that “the person [be] adversely affected by a major disaster.” The meaning of “adversely affected” is dealt with in s 1061L of the Act in these term:
“(1)	   For the purposes of this Act, a person is adversely affected by a major disaster if the person is affected by the disaster in a way determined by the Minister in relation to the disaster.
(2)	  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.”

10.	On 25 May 2009 the Minister for Families, Housing, Community Services and Indigenous Affairs made such a determination, the Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No 5). It commenced on that day. The operative provision is clause 5 which provides that, 
	“for s 1061L(2) of the Act, a person is adversely affected by a major disaster mentioned in Schedule 1 if the person is affected in the way mentioned in Schedule 2.”
11.	It is not in issue that Ms Dreadon was affected by the event in Schedule 1. The only relevant description in Schedule 2 is as follows:
“As a direct result of the major disaster mentioned in Schedule 1:
…
(d)	a person’s principal place of residence has sustained major damage.
…”
12.	Within the operative part of the Determination the term “major damage” is defined as in relation to a person’s principal place of residence as meaning:
“(a) 	at least one quarter of the residence has been submerged by flood 	waters or affected by associated debris; or
(b) 	the residence has been breached exposing at least one quarter of the 	interior of the residence to the elements; or
(c) 	the interior of the residence has experienced sewerage contamination; 	or
(d) 	the residence has been declared structurally unsound as supported by 	evidence.”
13.	Clause 4 deals with what is to be regarded as a person’s principal place of residence in this way:
“In this Determination a place is to be regarded as the person’s principal place of residence if:
(a) 	the place is a place in which the person normally resides; and
(b) 	the person has a right or licence entitling the person to lawfully reside 	in that place.” 
14.	Two questions arise – what part of the apartment complex is to be regarded as Ms Dreadon’s principal place of residence and did that part sustain major damage as defined. I regret that I am driven by the legislation to decide both those questions against Ms Dreadon.
15.	So far as the principal place of residence is concerned, there are two matters that are required for a place of residence to qualify to be regarded as a principal place of residence. The first is it must be a place within which the person normally resides. Moreover it must be a place where the person has a right or licence entitling the person to lawfully reside in that place. As it seems to me Ms Dreadon normally resides in that part of the apartment complex to which she has excusive right of occupation for the purposes of residing. That is, her individual apartment. The fact that she has a right to occupy a car park does not in my view meet that definition. That is because she does not normally reside in that car park, it is an incidence to her residence. Moreover she does not have a right or licence entitling her to reside in the car park. Her right or licence, which would be governed by the community title plan, is to have a motor vehicle which would occupy a nominated space within the car park. 
16.	Thus as it seems to me I must regard Ms Dreadon’s principal place of residence as being within the confines of the apartment itself. That being so, it is not suggested that the apartment itself was submerged by flood waters or affected by associated debris or that part of it was breached exposing the interior to the elements or that the residence was declared structurally unsound.  
17.	What remains in issue is the criteria of paragraph (c) of the Determination of major damage, that is, whether the interior of the residence experienced serious contamination.
18.	It is on that basis that the Social Security Appeals Tribunal found the matter in favour of Ms Dreadon because that Tribunal concluded, as I have noted, that the sewerage system was unable to be used for the period of a week. It seems to me that the Social Security Appeals Tribunal fell into error because it did not have regard to the Determination. It was no doubt very inconvenient and probably costly to Ms Dreadon that she was, in a practical sense, unable to reside in her apartment for a period of about 7 days because of the damage that was occasioned to the sewerage or storm-water drainage system but in my view that did not affect the interior of what I regard as her residence such that it could be said that the interior of the residence experienced sewerage contamination. 
19.	Ms Dreadon’s argument is that she was adversely affected which is undoubtedly right if adversely affected is given its ordinary and popular meaning but as I have tried to explain it has been given a quite narrow definition in the Determination. By reference to the entirety of the definition it would appear that purpose of the definition is to restrict qualification for payment to instances where, relevantly, the event has caused damage to property rather than inconvenience or incapacity to occupy the residence. 
20.	Mr Black who appeared for the Secretary pointed out the distinction made in the present Determination from that which appeared in an earlier Determination. The Social Security (Australian Government Disaster Recovery Payment) Determination 2007 (No 4) which included situations were a place of residence was rendered uninhabitable for a period of 48 hours or more. Plainly enough, if the definitions in the present Determination had been put in terms as wide as that Ms Dreadon would have qualified but as I say I am driven by the legislation to conclude that she does not fall within the quite narrow definition of “adversely affected” in the Determination.
21.	The result is that I would set aside the decision under review and substitute a decision that the Secretary’s decision be affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: 	.....................................................................................
		Associate

Date of Hearing	13 November 2009 
Date of Decision	13 November 2009
Solicitor for the Applicant	Legal Services and Procurement Branch Advocate  
Solicitor for the Respondent	Self represented