BEAMENT and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2011] AATA 231

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 231

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4916

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOCELYN BEAMENT

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date25 March 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

................[signed]..............................

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL

MR G. D. FRIEDMAN, Senior Member

No. 2010/4916

BEAMENT

and

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

FRIDAY, 25 MARCH 2011

MRS J. BEAMENT appears in person

MR T. DE URAY appears for the respondent

SOCIAL SECURITY – Mobility Allowance – whether applicant entitled to mobility allowance – whether researching and writing a book without contract for publication ‘gainful employment’ – whether criteria for voluntary work satisfied – whether applicant required to travel for purposes of employment or voluntary work

EXTRACT OF TRANSCRIPT OF PROCEEDINGS                 [10.58 am]

MR FRIEDMAN:   The decision before me is a decision of … [the] Social Security Appeals Tribunal of 8 October 2010.  That Tribunal affirmed a decision of a Centrelink authorised officer on 16 August 2010 to cancel Mrs Beament’s mobility allowance from 28 August 2010.  So I have to decide whether the mobility allowance was cancelled correctly as from that date.  There is no dispute that in November 2005 she first lodged a claim for mobility allowance and, after a period of time, it was granted in 2006, on the basis that she was engaged in gainful employment and that she spent 32 hours every four weeks on this activity.  And in February 2010 a review form was issued and, as a result of completing that form, Centrelink made a decision to cancel her mobility allowance, and that decision was upheld by the Social Security Appeals Tribunal. 

The relevant legislation that I have to consider is the Social Security Act 1991, section 1035, which states that:

A person is qualified for a mobility allowance specified in subsection 1044, subsection (1) if the person satisfies the travel test set out in subsection (2), and all of the following apply. 

I am not going to read the whole of that subsection (1) but subsection (1)(a):

(i)     …[the] person is a handicapped person;

(ii)     the person is engaged in gainful employment;

(iii)    the Secretary is of the opinion that the person is unable to use public transport without substantial assistance.

And then it goes on further. And subsection (2) of section 1035 states:

A person satisfies the travel test mentioned in subsection (1) if the person is required to travel to and from the person's home for the purpose of undertaking:

(a)    gainful employment; or

(b)    vocational training; or

(c)     job search activities; or

(d)    voluntary work; or

(e)    a vocational rehabilitation program.

Now, as far as the travel test is concerned, Mrs Beament said that she does not like to use public transport because she runs a risk of catching some infection where other people are concerned.  She says she doesn’t travel much any more.  Sometimes she is taken shopping. 

In relation to the question of gainful employment, she says that she is still working on her book, which she has been writing and researching for a number of years.  She said that qualifies her as gainful employment.  She agreed that she has not approached a publisher and, in fact, suggested that the final product of her research may take the form of a page on the internet, rather than as a published book, and that is because there …[are] still [some] uncertainties about the final form of the book.  It had originally involved prose and poetry and is now including teachings from the Bible and some mathematics.

She also said that she hasn’t done very much on the book lately for a number of reasons.  She has been very busy.  She has other obligations, such as helping people, and she … [has] recently moved address and that has created other priorities for her.

In relation to voluntary work, originally she had said that she did work for the Seventh-day Adventist Church.  When giving evidence today Mrs Beament said that most of the work she does in helping people is by the telephone.  She lives according to Christian principles and tries to help people as much as she can.  She doesn’t go to meetings of the church but, where somebody has identified a need and she is able to assist, she does so as much as possible, once again usually by telephone, and she referred to a particular person who was in need of assistance, and that person lives near her and she helped her as much as possible.  There is no evidence of Mrs Beament undertaking vocational training, job search activities or vocational rehabilitation programs. 

Now, on the question of voluntary work subsection (3) of section 1035 of the Social Security Act provides that:

“Voluntary work” means work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations.

And examples were given in the guide to Social Security Law and referred to by
Mrs Beament as charitable or welfare organisations such as the Salvation Army, Meals on Wheels, Society of St Vincent de Paul and community organisations such as Rotary, Apex and Lions. 

In considering whether the work that Mrs Beament does for the Seventh-day Adventist Church, and for other people in the community, I note that such work would need to be approved by the Secretary as constituting voluntary work - that is pursuant to section 1035, subsection (3) - and the Secretary generally approves such work when he or she considers the objectives and the nature of the proposed voluntary work.  I am satisfied that, in this case, there has been no approval by the Secretary for voluntary work undertaken by Mrs Beament and, even if I were to find that she was engaged in voluntary work, I am not satisfied, on her evidence, that she … [is] required to travel to and from her house for that purpose, given that she says that she doesn’t go out very much any more and that most of her work is done on the telephone.

In connection with the gainful employment, the requirement that she is to travel to and from her home for the purpose of undertaking such gainful employment, the definition of “gainful employment” is contained in section 19 of the Social Security Act.  It means:

(a)    paid employment;  or

(b)    self-employment that is intended to result in financial gain. 

There is no dispute that Mrs Beament is not in paid employment and, on the question of whether she is in self-employment that is intended to result in financial gain, I have listened to the evidence that she gave about researching the book and writing the book and, in my view, …[it] has been [a] long work in progress.  I take into account that there has been and is no contract with the publisher and in fact,
Mrs Beament has given no indication that she is going to use a publisher at all as she now says that the book or research may take the form of an internet page.

She has changed the focus of her book for a number of years and is now including teachings from the Bible and mathematics.  She said that she believes that her book would be of interest to a lot of people and, when she has been reading a poetry to people, they want to get hold of it and think highly of the poetry and she said she believes that, in effect, the community would gain by having access to the matters contained in her writings.  From all that evidence, it is my view that her work involving the writing and researching of a book is for the purpose of enlightening people, of entertaining people, of educating people.  It has more of an altruistic view than a strictly business venture. 

In my view, particularly when Mrs Beament is unable to or unwilling to provide details of how long she has spent working on the book - she hasn’t kept a diary and she said in evidence today that she hasn’t done much on the book at all lately, although
I have taken into account the other commitments that she has had - in my view, her writings of the book to this stage do not constitute self-employment that is intended to result in financial gain.  Consequently, I find that her activities in relation to the research on the book do not constitute any gainful employment for the purposes of the [A]ct. 

Further, even if that were not the case, given what she said about using the telephone and not getting around much, I find that there is no evidence that she is required to travel to and from her home for the purpose of undertaking the activities that would be included even if I found that there was gainful employment.

Consequently, in relation to section 1035, subsection (2) I find that she is not required to travel to and from home for the purpose of undertaking any of the items (a), (b), (c), (d) or (e) in terms of gainful employment or voluntary work and, in view of my findings, I also find that she does not satisfy subsection (1), (a)(ii), in as much as she is not engaged in gainful employment, and therefore, regardless of satisfying any of the other criteria of that section, she is unable to satisfy subsections (1) or (2) of section 1035 of the Social Security Act. 

Consequently, she is not able to meet the criteria for a mobility allowance and consequently the decision to cancel her mobility allowance was correct and I affirm the decision under review. 

END OF EXTRACT