Aklima Akter and Secretary, Department of Social Services

[2015] AATA 181

[2015] AATA 181   

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2956
Re	Aklima Akter
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	27 March 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – SOCIAL SECURITY – mobility allowance – whether applicant unable to use public transport without substantial assistance – whether applicant engaged in voluntary work for at least 32 hours in every 4 weeks on a continuing basis – no evidence that applicant satisfied either criterion – Tribunal not satisfied documents submitted in support of claim genuine – decision under review affirmed

Legislation

Social Security Act 1991 ss 19, 1035

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials
Guide to Social Security Law

REASONS FOR DECISION

Senior Member J F Toohey

BACKGROUND

1. Ms Aklima Akter married in Bangladesh in 2009.  She arrived in Australia in December 2011 with her husband, Mr Hasan, and their infant son who was born on 18 April 2011.  They have a second son who was born in Australia.

2. Mr Hasan and Ms Akter have a number of applications before the Tribunal for review of decisions concerning social security payments.  These reasons concern a claim by Ms Akter for mobility allowance. 

3. Ms Akter attended a hearing on 16 March 2015 with her husband and children and gave evidence through an interpreter.

   MOBILITY ALLOWANCE

4. Mobility allowance is a payment to assist a person who is prevented by a physical or mental disability from using public transport without substantial assistance.  The relevant legislation is contained in the Social Security Act 1991 (the Act).

5. The person must travel to and from his or her home for the purpose of engaging in one of a number of prescribed activities which include engaging in voluntary work: ss 1035(1)(f) and (2). 

6. The allowance is payable at standard and higher rates.  A person in receipt of Disability Support Allowance is eligible for payment at the higher rate.  Ms Akter is not in receipt of DSP.  She relies on s 1035 (1)(f) which provides that the standard rate is payable to a person to whom all of the following apply:

   (i)the person is a handicapped person;

   (ii)       the Secretary is of the opinion that:

   (A)the person is unable to use public transport without substantial assistance, either permanently or for an extended period; and

   (B)the person's inability to use public transport without substantial assistance is due to the person's physical or mental disability; and

   (C)the person is engaged in voluntary work for at least 32 hours in every 4 weeks on a continuing basis;

   (iii)      the person is an Australian resident;

7. Handicapped means a person has a physical or mental disability: s 19 of the Act.

8. Voluntary work includes work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations: s 1035.

9. Guidance on the application of the relevant legislation is contained in the Guide to Social Security Law (the Guide) which represents government policy.  The policy should be applied by the Tribunal unless there is cogent reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

10. Voluntary work must be performed for an average of 32 hours every four weeks and be provided willingly without obligation or payment: cl 3.6.6.53 of the Guide.  For the purposes of mobility allowance, “on a continuing basis” is generally taken to mean for a period of three months or longer: cl.3.6.6.55 of the Guide.

11. Substantial assistance for the purposes of mobility allowance is a higher level of assistance than what might reasonably be expected on a casual basis from the public and transport staff.  By way of example, it is more than determining the location of a train or a bus stop, determining when to get off, or ensuring a train or bus waits a little longer: cl 1.1.S.380 of the Guide.

    MS AKTER’S CLAIM FOR MOBILITY ALLOWANCE

12. Ms Akter lodged a claim for mobility allowance dated 18 January 2014.  On the form she indicated that she was not undertaking any employment, training, study or voluntary work and was not looking for work. 

13. On the same day, Ms Akter lodged a claim for advance payment of mobility allowance indicating that she did voluntary work.  She did not complete the section of the form that asked for details of the organisation she was involved with and the time she spent volunteering. 

14. In support of her applications, Ms Akter lodged a Medical report – Mobility Allowance form which gave the details of the doctor who completed the report as Dr Aiman Alsayed of A-Z Medical Centre in Lakemba.  It purported to be signed by Dr Naim Islam of the same practice on 18 January 2014.  It stated that Ms Akter has “Congenital heart disease” and “Depression disorder with anxiety”.  It indicated she has “serious difficulty” walking 400 metres and negotiating a large flight of steps, “moderate difficulty” sitting in public transport, and crossing streets and negotiating kerbs, and “minor difficulty” negotiating steps in or out of public transport.

15. It seems odd that a report stated to be completed by one doctor is signed by another.  Further, the report refers to medical conditions and disabilities that Ms Akter does not claim to have (see her evidence below at paragraph 25).  Given the number of documents submitted by Ms Akter and Mr Hasan to Centrelink and the Tribunal that have been found not to be genuine, I doubt very much that this report is genuine.  Even if it is, it appears to be mistaken as to Ms Akter’s medical conditions and disabilities and so is of no assistance in this matter.

16. On 31 January 2014, Centrelink rejected Ms Akter’s claim for mobility allowance on the basis she was not engaged in voluntary work or any other activity prescribed for the purpose of mobility allowance.

17. On 15 February 2014, Ms Akter requested a review of Centrelink’s decision and claimed she was entitled to two years “in backpay”.  She stated:

    We do not know about this allowance.  We already do voluntary charitable work since 2010.

18. Centrelink records indicate that, in support of her claim, Ms Akter submitted a letter purporting to be from Aminul Hoque in Bangladesh.  She submitted what appears to be a copy of the same letter in the present proceedings.  It is considered below.

19. On 28 March 2014, Centrelink decided the decision to reject Ms Akter’s claim for mobility allowance was correct.

20. On 23 May 2014, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.  The SSAT’s decision shows that Mr Hasan attended a hearing on 23 May 2014 by telephone and spoke on Ms Akter’s behalf.  According to the decision, Mr Hasan told the SSAT that Ms Akter was unable to undertake any activities due to her disabilities; he had to help with washing, dressing and toileting; he was unable to leave her alone; he recently left her for a short period and she fell and broke her elbow; he undertakes all household washing, cleaning, cooking and shopping, and he cares for their disabled son; the only thing Ms Akter does is to breastfeed their younger son.

21. According to the SSAT’s decision, Mr Hasan said he takes the family to the mosque every day between 12 noon and 1pm, and he and Ms Akter collect money for an overseas charity organisation that cares for people with HIV/AIDS.  She does not actually mix with people at the mosque but sits at a table with a collection box.  He said she does this for eight hours a week for one to one and a half hours each day

22. On her application to the Tribunal for review of the SSAT’s decision, Ms Akter indicated that she has an intellectual disability.  There is no evidence before me to suggest any basis for that claim.

23. In support of her present application, Ms Akter submitted a letter from the “Government of the people’s republic of Bangladesh Office of the Muslim marriage register and support Pubail, Dist: Gazipur”.  It purports to be signed by Aminul Hoque who identifies himself as “a registered marriage organisation”.  It states that Mr Hasan and Ms Akter did “voluntary work for a charitable to help those ill treated woman or disable woman and man for their after marriage support life”; they worked since January 2010 “for this organisation they need to use minimum 10 hours weekly to collect money from Muslim follower’s mosque”. 

24. I am not satisfied that the letter purporting to be from Aminul Hoque is genuine.  It is not on letterhead and, although it bears the purported seal of the “Muslim Marriage Registrar & Kazi”, it is not written in language expected of a government office.  Moreover, the charitable purpose described in the letter is quite different from that described by Mr Hasan to the SSAT. 

25. In the decision in Mohammed Hasan and Secretary, Department of Social Services [2015] AATA 31 at [27], I set out why I was not satisfied that a document purporting to be from Dr Aminul Hoque in Dhaka, Bangladesh, concerning Ms Akter’s and Mr Hasan’s son was genuine. The signature and date on that report appear to be in handwriting almost identical to the signature and handwritten date (albeit a different date) on the letter from Aminul Hoque presented in this matter.

    DOES MS AKTER QUALIFY FOR MOBILITY ALLOWANCE?

26. Ms Akter gave evidence before the Tribunal on 16 March 2015.  Asked has she ever done any voluntary work in Australia, she said she was involved in an event over several days in her community to raise money for people in “family trouble”.  She confirmed she had done nothing else by way of voluntary work in Australia.  Nothing in her evidence suggested that she is, or has been, engaged in voluntary work to the extent necessary in order to qualify for mobility allowance.

27. At the hearing, Ms Akter also gave evidence in relation to her claim for carer payment and carer allowance for her older son (see Aklima Akter AATA citation).  She gave evidence that she has polycystic ovaries and is being treated for depression.  She confirmed she has no other medical condition.

28. To the extent that Ms Akter suffers from polycystic ovaries, there is no evidence her condition prevents her from using public transport without substantial assistance.  Nothing in her presentation at the hearing on 14 January 2015 or 18 March 2015 suggests she suffers from any other physical disability, and there is no credible medical report to suggest that she does. 

29. A report from a registered psychologist submitted by Mr Hasan in support of his claim for carer payment and carer allowance for Ms Akter indicates that she suffers from depression and anxiety.   I accept that report is genuine.  However, it does not suggest that any psychiatric disability Ms Akter had, or has, prevents her from using public transport without substantial assistance.

30. Asked whether she uses public transport, Ms Akter said she mostly uses a train or bus, and occasionally a taxi.  Asked whether she has any difficulty using public transport, she said sometimes she feels sick on the bus or a train and, if someone such as her husband is with her, it gives her support.  That may be so but nothing in her evidence supports a finding that she requires substantial assistance in order to use public transport.

    CONCLUSION

31. There is no credible evidence to support a finding that Ms Akter qualified when she applied, or at any time since, for mobility allowance.  The decision to refuse her claim is affirmed.

32.       I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 27 March 2015

Date(s) of hearing		16 March 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Dr Stephen Thompson, Solicitor