Lee and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 101 (11 February 2010)

Last Updated: 11 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 101

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5094

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KLINT JAI LEE

Applicant

And

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

Respondent

DECISION

Tribunal

Mr S Karas, AO, Senior Member

Date 11 February 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...............[Sgd]...............................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Social security payment – Australian Government Disaster Recovery Payment – Whether the applicant’s residence sustained major damage – Whether the applicant’s residence was his principle place of residence – If damage was sustained to the applicant’s principle place of residence was it such that he was ‘adversely affected’?

Social Security Act 1991 (Cth) ss1061K, 1061L

REASONS FOR DECISION

11 February 2010

Mr S Karas, AO, Senior Member

INTRODUCTION

1. Mr Klint Jai Lee (the applicant) made a claim for an Australian Government Disaster Recovery Payment (AGDRP) on 27 July 2009. On the same day, Centrelink rejected the applicant’s claim. The applicant requested review of that decision and on 19 August 2009 an authorised review officer affirmed the decision to refuse the applicant’s claim for AGDRP. The applicant appealed to the Social Security Appeals Tribunal (SSAT) on 7 September 2009 and on 23 September 2009 the SSAT affirmed the earlier decision to reject the applicant’s claim. On 26 October 2009, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.

ISSUES AND LEGISLATION

2. The issues for the Tribunal to determine are:
   • whether the applicant’s principal place of residence sustained major damage as a result of storms and associated flooding that occurred in South East Queensland and regions of New South Wales commencing 20 May 2009; and
   • whether the damage, if suffered by the applicant, was such that he was “adversely affected”.
     
3. Section 1061K of the Social Security Act 1991 (Cth) (the Act) provides that an Australian resident over 16 years of age qualifies for an AGDRP if the person was “adversely affected by a major disaster”. A person is adversely affected by a major disaster only if that person is affected in a way determined by the Minister in relation to the disaster (see s 1061L of the Act). On 25 May 2009, in response to storms and flooding in South East Queensland and parts of New South Wales the Minister made the Social Security (Australian Government Disaster Recovery Payment) Determination 2009 No 5 (the Determination). Schedule 1 of that Determination provides:

Major Disaster
The storms and associated flooding that occurred in South-East Queensland and the North Coast and Northern Rivers regions of New South Wales:

(a) that started on 20 May 2009; and

(b) that continued in May 2009.

Schedule 2 of the Determination provides:

As a direct result of the major disaster mentioned in Schedule 1:

(a) a person is seriously injured; or

(b) a person is:
(i) an immediate family member of an Australian killed; and
(ii) the most appropriate immediate family member to make a claim for the Australian Government Disaster Recovery Payment in respect of the major disaster mentioned in Schedule 1; or
(c) a person’s principal place of residence has been destroyed; or
(d) a person’s principal place of residence has sustained major damage; or
(e) where a person (the Principal Carer) is the principal carer of a child (the Dependent Child):
(i) the Dependent Child is seriously injured; or
(ii) the Dependent Child is an immediate family member of an Australian killed and the Principal Carer is the most appropriate person to make a claim for the Australian Government Disaster Recovery Payment in respect of the major disaster mentioned in Schedule 1; or
(iv) the Dependent Child’s principal place of residence has sustained major damage.

Section 3 of the Determination defines “major damage” as:

major damage in relation to a person’s principal place of residence means:
(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.

4. The Determination also defines a person’s “principal place of residence” to be “a place in which the person normally resides and the person has a right or licence entitling the person to lawfully reside in that place” (see s 4 of the Determination).

EVIDENCE

5. A hearing to review this matter was held on 3 February 2010. The applicant was unrepresented. Ms Forsyth appeared for the Secretary Department of Families, Housing, Community Services and Indigenous Affairs (the respondent).
6. The applicant confirmed that the evidence he had provided to Centrelink’s authorised review officer and the SSAT was true and correct.
7. The applicant had been renting the premises at 157 Leach Road, Tamborine Village for some four years until he received an eviction notice for non payment of rent. He was directed to appear in the Small Claims Tribunal unless he handed back the keys to the property. On the 20 May 2009, he handed the keys to the property to the managing agents. At this time, the applicant alleges that he indicated to the agents that he intended to stay at the property for a further day or two in order to remove his personal belongings and to clean the house. He stated that the agents indicated their agreement with this arrangement. The applicant claimed that after having the house cleaned, and leaving the cleaning receipts on the table he moved out on 22 May 2009.
8. In reference to the damage caused by the storms, the applicant could not identify exactly when the water damage occurred but thought it was between 15 and 22 May 2009. He agreed that upon vacating the house he mentioned an exposed telephone line to the agents but did not mention the water damage as he believed he had cleaned it with towels, heaters and fans.
9. Reference was made to photographs taken by the agents of the house and property on 26 May 2009. The respondent relied on cobwebs, the lack of water marks on the walls, and the general uncleanliness of the premises captured in the photographs as evidence of the water not entering the premises as alleged by the applicant. They further relied on the fact that the applicant had never mentioned the water damage to the agents. The applicant argued that he had cleaned the house properly which is why no water marks were evident.
10. Evidence was provided by Ms Thacker of the real estate agency by telephone. She referred to her written statement dated 21 January 2010 (admitted as Exhibit C). Ms Thacker recalled the difficulties they had experienced with the applicant over the period of his stay, in particular, the arrears in rent payments. She was adamant that given the circumstances the applicant would not have been told by anyone in the agent’s office that he could remain in the premises for a further few days to remove his belongings and clean the house. She stated that there was no sign of water damage when the house was inspected on 26 May 2009. The photographs submitted into evidence support this. Ms Thacker added that the house required cleaning and if water had entered the property as the applicant claimed the carpets would have been smelly and stained. She was resolute that the inspection revealed that no water had entered the house.
11. Ms Thacker disputed that the house had been cleaned by professional cleaners. She said that no receipts for cleaning had been left at the premises. Based on the applicant’s history of notifying the agency when repair works were required and his expectation that repairs would be organised by the agency with no expense borne by him, Ms Thacker asserted that she would not believe the applicant would have had maintenance completed at his own expense. Additionally, stains that remained on the carpet in the master bedroom indicated further that the carpet had not been cleaned.
12. The applicant maintained that he did have the premises professionally cleaned and that his motivation for doing so was recovery of his bond monies.
13. Counsel for the respondent submitted that the Leach Road property was not the applicant’s ‘principal place of residence” on 20 May 2009 given that he had handed back the keys and had no legal or other entitlement to remain on the property. Further, it was submitted on behalf of the respondent that if the premises had suffered any damage from the May 2009 storms it was minor and not to the extent alleged by the applicant. She disputed that the applicant was motivated by recovering his bond monies to clean the premises as he owed so much rent (over $2,300) that “there was no way he would get any bond money back”. She concluded by asking that the earlier decisions to refuse the applicant the AGDRP be affirmed in the circumstances.

CONSIDERATIONS AND FINDINGS

14. The Tribunal finds that the applicant appears to have fabricated, embellished and exaggerated his evidence in part to make his position more acceptable in the circumstances. The Tribunal does not accept the applicant’s assertion that he had the consent of the agents to stay on after handing the keys back to the agents on 20 May 2009 to clean the property and remove his belongings. The Tribunal finds that the agent’s written records and evidence in this regard is to be preferred to that of the applicant. The Tribunal does not accept that the applicant paid for the house to be cleaned and that he left the receipts on the table. The Tribunal notes that the applicant was not working at the time and owed substantial monies for back rental payments which meant no part of his bond was recoverable. Based on the photographs of the premises admitted into evidence the Tribunal finds that no water damage, to any substantial degree was sustained to the property.
15. The Tribunal notes that in earlier interviews with Centrelink the applicant stated that damage had occurred around 15 May 2009. He told the SSAT that the water “had come in for about half a metre to one metre in the front room”. Whereas in evidence to the Tribunal, the applicant indicated that the water entered through the front door to a distance of some three metres. He also told the Tribunal that his toilet had “backed up” but because there was no sewerage discharge he was able to deal with the situation by using towels. The Tribunal finds that if anything, the premises suffered minor damage after 15 May 2009 and not the “major damage” as defined in s 3 of the Determination.
16. Further, the Tribunal finds that the applicant handed the keys to the property to the agency on 20 May 2009. It was on this date that 157 Leach Road, Tamborine Village ceased to be his principal place of residence. Consequently, he does not qualify for AGDRP pursuant to s 1061K(1)(c) of the Act.
17. As indicated above the property has not been found to have suffered “major damage” and accordingly the applicant is unable to satisfy s 1061K(c) of the Act. As it cannot be established that major damage was caused to his principal place of residence he was therefore not “adversely affected” by a major disaster. Given all of the material and evidence before the Tribunal it finds that the applicant is not entitled to AGDRP.

DECISION

18. The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

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

Kate Slack, Research Associate

Date/s of Hearing 3 February 2010

Date of Decision 11 February 2010

The Applicant was self represented.

For the Respondent Ms Jasmine Forsyth, departmental advocate