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Hipkin, Findley --- "After the aftermath: Legal assistance for communities impacted by disasters" [2021] PrecedentAULA 38; (2021) 165 Precedent 4

AFTER THE AFTERMATH

LEGAL ASSISTANCE FOR COMMUNITIES IMPACTED BY DISASTERS

By Findley Hipkin

This article gives an insight into the work of the Disaster Response Legal Service (DRLS), a specialist legal service set up to assist individuals and communities in NSW that have been impacted by disasters. The article includes case studies based on clients the service assisted following the 2019–2020 bushfires and 2021 floods.

As the bushfires approached, Linda* was evacuated from her home in Mogo, a small town near Batemans Bay on the NSW South Coast. Linda spent a couple of nights at an evacuation centre until the Rural Fire Service declared it safe to return home. Linda returned to find that the fires had totally destroyed her home, as well as many of her neighbours’ homes.

Linda had insurance but had never needed to make a claim. She didn’t know where to start.

Only days after the fires destroyed her property, Linda heard about a community recovery centre that was being set up in Batemans Bay at which she could access services to help her in the immediate aftermath of the fires. Linda went to the recovery centre and spoke to a number of services, including a solicitor from Legal Aid NSW’s DRLS.

The solicitor helped Linda to understand her insurance contract, and gave her advice on how to make a claim, what she was entitled to under her policy and what to do in the event of a dispute.

Later, when an issue arose concerning how much Linda was entitled to under her insurance policy, the same solicitor helped her to raise a dispute. As a result, Linda received a more substantial insurance payment which she later used to rebuild her home.

THE DISASTER RESPONSE LEGAL SERVICE

For over a decade, the DRLS has ensured that people and communities whose lives have been suddenly and profoundly altered by bushfires, storms and floods have access to targeted civil legal advice from experienced solicitors.

In recent years, the DRLS has responded to disasters including the Blue Mountains bushfires in 2013, the Murwillumbah floods in 2016, the Tathra bushfires in 2018 and the 2019–2020 Black Summer bushfires that impacted significant areas of NSW.

Solicitors are trained in the kinds of everyday legal issues that frequently arise during disasters, issues that can cause acute hardship if left unresolved. While insurance issues are most commonly raised by DRLS clients, solicitors also assist clients with a diverse range of civil law problems, including tenancy and housing, fines, social security and welfare, credit and debt and employment.

People impacted by disasters are often unsure about their options when faced with a legal dispute following a large-scale, sudden and traumatic event. In many cases, people are unaware that they have a legal issue at all until they speak with a solicitor or community worker who is trained to identify such issues.

The DRLS provides a holistic and trauma-informed approach to clients’ legal problems by offering early legal assistance, identifying systemic legal issues and providing ongoing legal assistance where necessary. Recognising the complicated needs of disaster-affected clients, the DRLS currently employs a specialist financial counsellor to help clients through the financial worries that inevitably arise after a disaster.

Following a disaster, DRLS solicitors offer legal advice through two main channels. The first is face-to-face advice given to clients at the recovery centres and community outreach hubs that are set up in the immediate aftermath of a disaster. The second is a dedicated telephone helpline that allows people impacted by disasters to speak directly with a solicitor between 9:00am and 5:00pm, Monday to Friday.

Anyone living in a community that has been impacted by a disaster can access legal assistance from the DRLS. This recognises the fact that, while some people seeking help may not ordinarily meet Legal Aid NSW’s eligibility criteria, people impacted by disasters often experience unexpected hardship and trauma. They are, therefore, considered priority clients.

Vulnerable people, including older people, Aboriginal and Torres Strait Islander communities and people living with disability are disproportionately affected by disasters. After the Black Summer bushfires, studies showed that over 84,000 Indigenous people, or one-quarter of the Indigenous population of NSW and Victoria, lived in a bushfire-affected area.^[1] Following disasters, the DRLS develops targeted local service delivery strategies for these vulnerable groups that are accessible and culturally responsive.

DRLS RESPONSE TO THE BLACK SUMMER BUSHFIRES

Even before the devastating scale of the Black Summer bushfires had been fully realised, solicitors from the DRLS were on the ground in northern NSW providing legal assistance to impacted communities. Solicitors attended community meetings in Drake, Tenterfield, Nymboida and Tabulam and spoke with residents about the impact the fires had had on their communities.

Few residents were prepared for the extent of the loss that would transpire after the initial early warning signs. By the end of the bushfire season, NSW had experienced its worst bushfire season on record. The spread, duration and intensity of the fires was unprecedented with 26 lives lost, over 5.5 million hectares of land burnt and 2,467 properties destroyed.^[2]

In response to the vast scale of the disaster, the DRLS implemented a multi-channel response which included establishing a dedicated 1800 legal advice helpline; delivering extensive community legal education; providing referrals to other agencies and support services (including pro bono referrals); and launching a dedicated website.

From January until late March 2020, solicitors were deployed to the communities that were most seriously impacted by the fires, attending recovery centres at Batemans Bay, Bega and Ulladulla. These centres offered a ‘one-stop shop’ assistance point for individuals and communities impacted by the bushfires. The Batemans Bay recovery centre, located at the Batemans Bay Soldiers Club, was a large-scale operation where people impacted by the fires could speak to a range of social, welfare, charitable and other government service-providers, including solicitors from the DRLS.

From the beginning of the NSW bushfire season in October 2019 until June 2020, the DRLS provided over 1,000 legal services to people impacted by the fires, including 889 advices and 138 more extensive legal services.^[3] The DRLS provided 81 per cent of all its advice services between 6 January and 6 March 2020. This demonstrates just how critical it is to have legal services embedded in the recovery process in the immediate aftermath of a disaster.

The DRLS also presented legal information and community legal education at 68 community recovery meetings and mobile hubs across 19 Local Government Areas to over 2,500 community members. Many meetings were held in small and often isolated towns across the state.

Working with partners

An important part of the DRLS response to the bushfires was working closely with partners in the legal assistance sector.

There was an overwhelming response from the private legal profession to the bushfire emergency, with the Law Society of NSW and the NSW Bar Association receiving many offers of pro bono assistance. The DRLS worked closely with Justice Connect to establish a pro bono referral pathway for clients in need of advice in areas outside the expertise of DRLS solicitors, including commercial, property and planning law.

Community Legal Centres (CLCs) across NSW provided a crucial local response, with generalist and specialist centres working alongside the DRLS to coordinate legal help for people in the worst affected areas. The DRLS worked closely with the Elizabeth Evatt CLC in Katoomba, the Mid North Coast CLC in Port Macquarie and Coffs Harbour, the Shoalcoast CLC in Nowra, and the North and Northwest CLC in Armidale.

Specialist legal assistance was also provided by the Tenants’ Union, the Welfare Rights Centre, and the Financial Rights Legal Centre’s Insurance Law Service.

Common legal issues

The kinds of legal issues that flow from disasters of this magnitude are varied and complex. Examples include scenarios such as:

• the destruction of a family home, raising the question of how much an insurer must pay out;

• an employee being immediately stood down because their place of work has burnt down; and

• the exacerbation of existing financial worries.

For some people, the aftermath of the bushfires represented the first time in their lives that they needed to seek legal help. For others, the legal issues arising from the disaster added to, or compounded, existing legal problems.

Insurance was the most common legal issue about which clients sought advice following the bushfires, comprising 45 per cent of all advice provided by the DRLS.

For people who lost their homes to the bushfires, the impact that an insurance dispute can have is profound. Even making an initial claim on an insurance policy can be a daunting and stressful process for someone who has lost their home. It can be even more difficult for those who encounter problems with the claims process and have to raise a dispute with their insurer without specialist help.

Recurring insurance issues included delays in claims handling, disputes around scopes of work, and confusion around the engagement of third-party contractors.

The settlement of claims was another area of concern, with disputes raised around the extent of cover, ‘extras’ contained in policies not being paid out, and debris removal complaints.

One of the main issues for DRLS clients following the bushfires was the availability and accessibility of temporary accommodation. Most general home insurance policies provide for a period of temporary accommodation if the insured property is damaged or destroyed. However, not knowing that temporary accommodation was available, some DRLS clients were living in a caravan or tent on the site of their burnt-out homes when they contacted us.

Judy* wanted advice about her temporary accommodation entitlement in her insurance policy after she lost her home in the bushfires and had nowhere to live.

The insurer had offered Judy a payment to cover 12 months of temporary accommodation that was based on the market rent of homes similar to her destroyed home. She was concerned that the amount offered would not be enough as there were no rental properties available in her town, meaning that she would need to move to a nearby regional centre where rent was much higher. Judy would also need to pay even higher rent for a property that allowed her to keep her dog, who was an important source of support.

Judy tried to negotiate a higher payment with the insurer to account for the higher rental payments she would need to make, but was unsuccessful.

A solicitor from the DRLS assisted Judy by making an internal dispute resolution complaint, and the insurer later contacted Judy to advise that it would pay her the higher amount.

Another common issue concerned people’s entitlement to debris removal payments following the total loss of their property. This issue arose in the context of the NSW Government’s program which offered to cover the clean-up cost of insured and uninsured residential properties that were destroyed in the bushfires.

Marcella* attended the Batemans Bay Recovery Centre and sought legal advice after her insurer capped her payout at the sum-insured amount, despite the fact that her policy contemplated the payment of additional features on top of the sum-insured amount, including for debris removal.

The insurer argued that, since the NSW Government had performed debris removal for free, Marcella was not entitled to the extra payment for debris removal under her insurance policy. A DRLS solicitor helped Marcella to make a complaint to the insurer about their failure to pay an amount equivalent to debris removal costs, resulting in Marcella being paid an additional amount on top of her sum-insured amount.

Systemic advocacy

As part of its work, the DRLS monitors systemic issues and advocates for improved practices by insurers and regulators.

Following the Blue Mountains bushfires in 2013, the DRLS was instrumental in negotiating a new protocol with the insurance industry and regulators to ensure that residents who had suffered total loss of property were not required to itemise their losses.

During the Black Summer bushfires, the DRLS identified issues with underinsurance and poor claims handling. As a result, the DRLS engaged with regulators and industry to achieve better outcomes for vulnerable and disadvantaged members of affected communities.

The DRLS also provided submissions to three government inquiries into the bushfires and a senior solicitor was called to give evidence before the Royal Commission into National Natural Disaster Arrangements.

Disaster response – a trauma-informed approach

Recognising the traumatic and disorienting impact that a sudden disaster can have on an individual who is seeking legal advice, an important priority for the DRLS is ensuring that legal services are delivered in a trauma-informed way.

It is well-recognised that disasters cause profound personal hardship for individuals and communities. Common reactions include feeling overwhelmed, being unable to focus or plan ahead, and feeling numb or detached.^[4]

DRLS solicitors met people at recovery centres who had lost their homes just days earlier. In some cases, solicitors gave advice to people who had lost loved ones.

It can be traumatic for people to have to tell their story again and again – in many cases, the more times a client tells a story, the more traumatised they become. This presents a challenge to solicitors, who must balance the need to gather enough information from a client to provide meaningful advice while ensuring that they do not re-traumatise the client in the process.

As part of a trauma-informed approach to legal service delivery, solicitors are trained to create a safe space for clients. This allows DRLS solicitors to provide instructions about their client’s legal matter without causing or further exacerbating that client’s existing trauma. Solicitors are trained to engage with clients in a genuine way, to be respectful, to explain their role and to get the information they need to help those clients in a sensitive manner.

Recognising that solicitors doing disaster legal work can experience vicarious trauma, solicitors are trained at managing these issues too. Where clients or solicitors require further support, appropriate referrals are made to services offering counselling and other mental health support. After attending recovery centres, solicitors are also given the option of a daily debriefing with a senior solicitor to discuss any issues of concern.

DRLS RESPONSE TO THE 2021 FLOODS

Heavy rainfall from mid-March 2021 caused major flooding across NSW, with the Mid North Coast and Hawkesbury-Nepean regions most affected. Around 18,000 people were evacuated,^[5] many homes and businesses were destroyed, and thousands more were severely damaged or rendered uninhabitable.

The DRLS was again mobilised, with solicitors sent to eight recovery centres across the Mid North Coast and Hawkesbury-Nepean regions, as well as to mobile outreach hubs run by the Kempsey, Port Macquarie-Hastings, Nambucca Valley, MidCoast and Hawkesbury local councils.

The DRLS worked closely with the Mid North Coast Community Legal Centre, the Western Sydney Community Legal Centre, and tenants advice and advocacy services to provide a local response. It also worked closely with the Tenants’ Union and the Financial Rights Legal Centre’s Insurance Law Service for specialist legal and strategic input.

Solicitors continued to staff the DRLS advice line, ensuring that people impacted by the floods who lacked mobility, or otherwise couldn’t travel to a recovery centre, had immediate access to specialised legal advice by phone.

As at 1 July 2021, the DRLS has provided over 800 services to people impacted by the floods.

Common legal issues

While there was some overlap, the legal issues that arose after the floods were in many ways quite different to those that arose after the bushfires.

Immediately following the floods, the DRLS provided advice about tenancy issues. Renters who had been evacuated from their homes wanted to know whether they were legally obliged to continue paying rent, or whether they had to give notice if they wanted to end their tenancy (and, if so, how).

Sandra* called the DRLS helpline after her rental property was damaged by flood water, making it unsafe to live in. She had several months left on her fixed term lease and had found a new property that she wanted to move into. Her landlord told her that she was not able to break the lease without paying a fee.

Under s109 of NSW’s Residential Tenancies Act 2010, where a premises is destroyed or becomes wholly or partly uninhabitable otherwise than as a result of a breach of agreement, a tenant can immediately terminate a rental contract.

The solicitor gave Sandra some advice about her situation and helped her to draft a valid termination notice under s109 to give to her landlord.

Solicitors also gave people advice about how to find out who their insurer was, how to lodge a claim where they had suffered damage to property, and what to do if an insurer was causing delays or appeared to have breached provisions in the General Insurance Code of Practice.

Most standard home and contents insurance policies that are offered to NSW consumers will include cover for fire but not for floods. The question for bushfire-impacted clients is not whether they are covered, but for what and for how much. In the experience of DRLS solicitors, very few bushfire-impacted clients are denied cover due to damage caused by an event that was excluded from coverage.

The situation is very different for people impacted by floods, many of whom have insurance but are not covered for damage caused by floods. Most insurance policies offer flood cover but the premiums are often high and unaffordable, meaning that policy holders are often forced to opt out.

Most home and contents insurance policies now adopt a standard definition of ‘flood’, being the covering of normally dry land by water that has escaped or been released from a lake, river, creek another natural watercourse, reservoir, canal, or dam. Even where floods are not covered, some policies still cover damage caused by storm or rainwater runoff. For people in this situation, the question may be about whether the damage was caused by ‘flood’ or ‘storm water’, or by a combination of both.

Whether an insurer is liable for covering loss will depend on the wording of a particular policy and the exact cause of the damage to the insured property. This is often determined by expert reports, including from hydrologists.

Janet’s* house suffered extensive water damage. She had insurance but was only covered for damage caused by ‘storm’ and ‘storm water runoff’, not damage caused by flood. She claimed that it was the rainwater that inundated her property before any flood water had entered that had caused the damage to her property.

Janet attended the recovery centre at Laurieton and spoke with a DRLS solicitor about her case. She was advised about her policy and the steps she could take to seek a review of the insurer’s decision if it was not in her favour.

The floods also had a significant impact on people living in residential land lease communities (more commonly known as caravan parks).

Solicitors advised park residents about their rights and responsibilities after floods caused damage to caravans or cabins that they were either renting directly from the park or that were owned by residents who paid site fees to park operators.

In some cases, entire parks were inundated. The DRLS spoke to residents who had to be evacuated from their homes by SES dinghies.

Fred* owned his caravan and paid site fees to the operators of the park where he lived. He was evacuated following the floods and wasn’t able to return to his home for several days, as the park itself had been badly flooded. Fred wanted advice on whether he had to continue paying site fees.

Where a person owns a caravan and pays site fees, s62 of the Residential (Land Lease) Communities Act 2013 (NSW) provides that where a residential site becomes uninhabitable otherwise than as a result of a breach of the site agreement, site fees abate until the site becomes wholly habitable, or the site agreement is terminated – whichever happens first.

A DRLS solicitor gave advice to Fred about his situation.

FUTURE OF THE SERVICE

Following the bushfires, the DRLS conducted a review in late 2020 and developed a new model for service delivery.

The new model recognises the fact that future disasters will vary in scale – from small and localised to large-scale and state-wide. Regardless of the scale of future disasters, the DRLS will respond with agility, flexibility and efficiency in a client-centred, trauma-informed and culturally appropriate way.

The new model also contemplates a service response for the full life cycle of disasters, from pre-planning and mitigation to crisis response and post-disaster support for individuals and communities.

As the frequency and severity of disasters increases due to the ongoing impact of climate change, the community need for legal assistance following storms, floods and bushfires will continue to grow.

While there is organisational readiness to provide high-quality, targeted services that meet the needs of clients affected by disasters, whatever the scale or location, the challenge facing the DRLS will be the increasing frequency and intensity of disaster events. This is why working with partners in the legal assistance and pro bono sectors will be more crucial than ever.

The DRLS will continue to respond to future disasters and provide much-needed legal support to impacted individuals and communities.

* Not their real name. These case studies are based on clients who were assisted by the DRLS.

Findley Hipkin is a solicitor in the Disaster Response Legal Service based in Sydney. Prior to that, he worked in Legal Aid NSW’s consumer law team.

^[1] B Williamson, F Markham and JK Weir, Aboriginal Peoples and the Response to the 2019–2020 Bushfires (Centre for Aboriginal Economic Policy Research Working Paper 134, 2020) <https://caepr.cass.anu.edu.au/sites/default/files/docs/2020/3/CAEPR_WP_no_134_2020_Williamson_Markham_Weir.pdf>.

^[2] Resilience NSW, NSW bushfire recovery: Supporting NSW communities following the 2019–2020 bushfires (NSW Government Publication, 2020) <https://www.emergency.nsw.gov.au/Documents/Resilience%20NSW%20Bushfire%20Recovery%20Report%20June%2030.pdf>.

^[3] This data was extracted from the Legal Aid NSW Client Case Management System. Client data is recorded by the DRLS in accordance with Legal Aid NSW record keeping requirements.

^[4] Beyond Blue, Bushfires and mental health (2021) <https://www.beyondblue.org.au/the-facts/bushfires-and-mental-health>.

^[5] E Elsworthy, ‘NSW flooding forces 18,000 to evacuate, schools closed, workers told to stay home’, ABC News, 22 March 2021, <https://www.abc.net.au/news/2021-03-22/nsw-flooding-forces-evacuations-and-school-closures/13266072>.