Editors --- "Australian Government Disaster Recovery Payment: quali?cation; whether unable to return to principal place of residence; whether psychological trauma experienced" [2010] SocSecRpr 36; (2010) 12(3) Social Security Reporter, Article 2

• OGILVIE and SECRETARY TO THE DFHCSIA
• Background
• Legislation
• The evidence
• Application of the legislation
• Decision

---

Australian Government Disaster Recovery Payment: qualification; whether unable to return to principal place of residence; whether psychological trauma experienced

OGILVIE and SECRETARY TO THE DFHCSIA

(2010/187)

Decided: 19th March 2010 by J. Handley

Background

Ogilvie received disability support pension and lived with his parents in Upper Beaconsfield, in regional Victoria. Between February and March 2009 large areas of regional Victoria were devastated by bushfires. Ogilvie left the family home on 2 March 2009 and returned on 5 March 2009. His parents also left on 2 March 2009 and returned on 4 March 2009.

Ogilvie made a claim for the Australian Government Disaster Relief Payment (ADGRP) over the telephone on 1 May 2009.Notes from that telephone interview stated that Ogilvie advised Centrelink that he was unable to return to his home as a direct result of the disaster and as directed by emergency services. The claim for AGDRP was rejected, and the rejection was affirmed by both an Authorised Review Officer and the SSAT. Ogilvie appealed to the Tribunal.

Legislation

Section 1061K of the Social Security Act 1991 (the Act) provides the basic qualification criteria for AGDRP. Amongst the qualification criteria is that the person is ‘adversely affected by a major disaster’ (s.1061K(1)(c)).

‘Major disaster’ is defined in s.23 of the Act as ‘a disaster in respect to which a declaration is in force under s.36’. The definition in s.36 provides that the Minister may make a determination that an event is a ‘major disaster’ if the criteria in s.36(2) are satisfied:

36(2) Without limiting the matters to which the Minister may have regard in considering the impact of the event on individuals, the Minister must have regard to:

(a) the number of individuals affected; and

(b) the extent to which the nature or extent of the disaster is unusual.

Section 1061L provides the definition of the phrase ‘adversely affected’. The relevant parts of that section state:

(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.

On 7 May 2009 the Minister for DFHCSIA determined that the bushfires that took place in Victoria from 29 January 2009 and that were ongoing in March 2009 were a ‘major disaster’: Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No.4)(Determination No.4). Schedule 2 of Determination No.4 also sets out nine different categories of circumstances in which a person may be taken to have been ‘adversely affected’ by the bushfires. The two categories at issue in Ogilvie’s case were where:

(e) a person is unable to return to their principal place of residence for a period of 24 hours or more; [or]

(f) a person experienced psychological trauma;...

In relation to the term ‘psychological trauma’, Determination No.4 provides the following set of criteria:

For the purposes of this Schedule, a person experienced psychological trauma if:

(a) the individual was in the immediate area of the disaster, and

(b) any of the following occurred:

(i) the individual was an eyewitness to a person seriously injured as a direct result of the disaster; or

(ii) the individual was an eyewitness to the remains, body or bodies of a deceased person or persons arising as a direct result of the disaster; or

(iii) as a direct result of the disaster, the individual was separated for 24 hours or more from an immediate family member; or

(iv) as a direct result of the disaster, the individual’s life was under immediate threat; or

(v) as a direct result of the disaster, the individual’s principal place of residence or real property owned by the person or business premises owned by the person, was under immediate threat.

Determination No.4 also provides that:

‘unable to return in relation to a person’s principal place of residence means the person could not return to their principal place of residence as supported by evidence.’

The evidence

Oral evidence was given to the Tribunal by Ogilvie’s father in relation to Ogilvie’s circumstances in the relevant period. When the family left their home on 2 March 2009 neighbouring fires were approximately 1km from their property, and an emergency services helicopter could be observed from their property, as it was attempting to extinguish these neighbouring fires. Evidence was given that Ogilvie was extremely upset by the experience, and did not make the decision to leave the property lightly. Evidence was also given that Ogilvie had assisted in fighting against previous fires, and was aware of the consequences of bushfire.

The hearing was adjourned so that information from the Country Fire Association (CFA) could be received about the circumstances in Ogilvie’s precinct during the relevant period. The material received stated that the CFA did not respond to any events during the period 2 to 4 March 2009 in Upper Beaconsfield and that no road closures were instigated in that vicinity. Although the Victorian Police Force sent text messages to the residents recommending evacuation, there was no evidence to suggest that the residents were physically prevented from returning to their homes during that time.

Application of the legislation

The Tribunal first considered whether it could be said that Ogilvie was ‘unable to return to [his] principal place of residence for a period of 24 hours’. It concluded that there was no evidence before it that Ogilvie was unable to return to his home, and that the evidence from the CFA confirmed that the residents in that immediate area were not physically prevented from returning to their homes.

The Tribunal then considered whether Ogilvie was qualified for AGDRP as a person who was ‘adversely affected’ by the bushfires on the basis that he experienced ‘psychological trauma’. The Tribunal accepted the argument that Ogilvie had experienced psychological trauma. The Tribunal noted that satisfaction of the definition of ‘psychological trauma’ for the purposes of Determination No.4 did not require medical proof or diagnosis. It was sufficient, according to paragraph (b) of the definition in Determination No. 4, that Ogilvie was in the immediate area of the disaster, and that he held an objective belief that his principal place of residence was under ‘immediate’ threat.

Decision

The Tribunal set aside the decision under review and in substitution decided that Ogilvie qualified for the Australian Government Disaster Recovery Payment.

[D.A.]