Broadstock and Secretary, Department of Social Services (Social services second review)

[2023] AATA 2561

Broadstock and Secretary, Department of Social Services (Social services second review) [2023] AATA 2561 (15 August 2023)

Division:                  GENERAL DIVISION

File Number:          2022/8912

Re:Mitchell Jacob Broadstock

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:15 August 2023

Place:Sydney

The reviewable decision is set aside and in substitution the decision is made that the Applicant qualified for mobility allowance from 27 April 2022 to 10 May 2022. 

................................[sgd]........................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – mobility allowance – whether the applicant was unable to use public transport without substantial assistance permanently or for an extended period of time due to his medical condition during the qualification period – whether the applicant was undertaking a qualifying activity for mobility allowance purposes during the qualification period – job search activities – reviewable decision set aside

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Department of Social Services, ‘Social Security Guide’ Guides to Social Policy Law

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

15 August 2023

Introduction

1. Mr Broadstock (the Applicant), applied for Mobility Allowance (MA) on 27 April 2022. His application was refused on 31 May 2022. That decision was affirmed on 25 July 2022 by an authorised review officer (ARO) from Services Australia. The Social Services and Child Support Division of this Tribunal (AAT1) affirmed the ARO’s decision on 11 October 2022. I am reviewing the AAT1 decision.

2. The Applicant did not attend the hearing which was conducted by telephone on 12 July 2023. The Tribunal tried unsuccessfully to contact him. He had advised the Tribunal on 10 July 2023 that he would not be attending because he had complained to the Human Rights Commission that he was a disabled pensioner with no legal representation and was told that he should not attend because he does not have legal representation.

3. On 11 July 2023 the Tribunal tried to call the Applicant to ask if he would like an appointment to be arranged with Legal Aid. When he did not answer a voice mail was left to that effect and an email was also sent to him. 

4. At the hearing, Mr Gauci, who represented the Respondent, the Secretary, Department of Social Services, sought an adjournment to seek instructions about making an application to have the matter dismissed without the Tribunal holding a hearing. I indicated I was not minded to dismiss the matter on that basis in light of the medical evidence about the Applicant’s mental health. The hearing proceeded.

5. In summary, section 1035 of the Social Security Act 1991 (Cth) (the Act) provides that MA is a payment to people with disabilities who are engaged in certain activities and who cannot use public transport permanently or for an extended period of time without mobility assistance and pursuant to section 1035(2) is required to travel to and from the person’s home for the purpose of undertaking a ‘qualifying activity’, that is:

   (a)gainful employment; or

   (b)vocational training; or

   (c)job search activities; or

   (d)voluntary work; or

   (e)a vocational rehabilitation program.

   Qualification period

6. A person must qualify for MA on the day he made the claim or become qualified within the period of 13 weeks thereafter. In the latter case, the claim is taken to be made on the first day on which the person is qualified.[1] The Applicant made his claim on 27 April 2022 online.  Therefore, the relevant period during which he must qualify is the 13 week period from 27 April 2022 to 27 July 2022 (the qualification period).

   [1] That is the effect of section 42 of the Social Security (Administration) Act 1999 (Cth) and clauses 3 and 4 of Schedule 2 to that Act.

   Issues            

7. The Respondent’s case is that during the qualification period the Applicant:

   ·was not medically eligible for MA because his medical condition did not prevent him from using public transport without substantial assistance permanently, or for an extended period (one year or more) (the public transport test), and

   ·was not undertaking a qualifying activity for MA purposes.

8. My task is to decide whether the evidence supports those two contentions.

   The Qualification criteria

9. I will address each of the above tests in turn.

   The public transport test

10. The difficulties the Applicant experiences using public transport arise from his mental health conditions. Evidence about his difficulties before and after the qualification period is relevant and helpful to the extent it casts light on whether the Applicant satisfied the public transport test during the qualification period.

11. The Respondent accepts that the Applicant has difficulty using public transport but claimed that it was likely to last less than 12 months, that is, it was not permanent. The Respondent relied on the opinion of a general practitioner (GP), Dr Zakariya Fares, who completed a form entitled Medical Report Mobility Allowance’ dated 16 May 2022. Dr Fares indicated that he had been treating the Applicant since 11 May 2022 and the Applicant had a previous history of a number of mental health conditions.   

12. Question 6 asked about specific skills needed to use public transport and set out levels of ability from 1 to 5 as follows: 1 full ability, 2 slightly limited, 3 moderately limited, 4 severely limited and 5 no ability. Dr Fares indicated that the Applicant’s ‘social skills – ability to relate to bus drivers or public’ were ‘severely limited’ (a rating of 4). He indicated that the Applicant’s personal survival skills, educational skills (to handle money or buy tickets) and recognition skills (to recognise landmarks or areas) were ‘slightly limited’ (a rating of 2). 

13. In response to an invitation at question 7 to provide other information about how the Applicant’s illnesses limit his ability to use public transport, Dr Fares wrote:

    Access to public transport may exacerbate patients psychiatric condition which may be harmful to the patient and others in a public setting.

14. Dr Fares indicated that the level of difficulty in using public transport would likely be temporary. He also indicated that it would be likely to last less than 12 months.

15. Upon what Dr Fares based his assessment is not apparent, apart from, I infer, a consultation with the Applicant.

16. The addresses on the form of both the Applicant and Dr Fares were in Greenacre.

17. A Job Capacity Assessment Report (the JCA) was submitted on 23 February 2022 in relation to the Applicant’s claim for disability support pension (DSP). The assessment was carried out on 16 February 2022 by a registered nurse and a psychologist who was a contributing assessor. They spoke to the Applicant by telephone. The assessors referred to a report from a treating health professional dated 28 October 2019 and discussion with two other treating health professionals. The following information is derived from the JCA.

18. There were various diagnoses given by different doctors. In a report dated 28 October 2019, a psychiatry registrar set out the Applicant’s complex mental health history from 2016 with onset in childhood. The registrar described the symptoms/functional impact of the Applicant mental health condition as: ‘documented as a chronically elevated risk of harm to self through risk to reputation, risk of misadventure, and risk of violence by others due to the nature of his illness, his lack of insight and high likelihood of non adherence’.

19. In his DSP claim dated 13 January 2022, the Applicant stated that he was under the care of a consultant psychiatrist. The assessors spoke to that psychiatrist who had consulted with the Applicant three times, the last being in November 2021. They relied on that conversation for the functional impact section of the report which stated:

    ·There is severe functional impact on activities involving mental health functions; 

    ·The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions and

    ·has difficulty concentrating on any task or conversation for more than 10 minutes;

    ·his behaviour, thoughts and conversation are significantly and frequently disturbed;

    ·is unable to attend work, education, or training on a regular basis over a lengthy period due to ongoing mental illness.

20. The support requirements listed included interact with others (for 12 to 24 months), cope with work related stress and pressure (12 to 24 months), concentrate or remain task focused (6 to 12 months), build work capacity (6 to 12 months), complete job search activities (6 to 12 months) and maintain suitable employment (12 to 24 months).

21. As required for a successful claim for DSP, the assessors determined that the Applicant’s condition was fully diagnosed, treated and stabilised as the client had undertaken reasonable and recommended treatment and significant functional improvement is not expected within 24 months. ‘Suitable work’ was ‘Not Applicable’.  

22. A list of adverse functional impairments caused by the Applicant’s permanent medical conditions that were expected to reduce the Applicant’s baseline work capacity to 0-7 hours included concentration, stress tolerance, decision making, social engagement, impaired ability to perform strenuous and physical exerting day to day tasks or chores around the home.  

23. Seventeen interventions were listed: anger management/conflict resolution, behaviour management, cognitive behaviour therapy, counselling, job matching and search skills, job seeking and job seeking (specialised), psychiatric services/treatment, psychological/cognitive assessment/intervention, self improvement/personal development, self-help groups, stress management, torture/trauma counselling, vocational assessment/counselling/rehabilitation and work experience.

24. The assessors’ additional comment was that ‘Centrelink to discuss a referral to ESS upon finalisation of this claim’.

25. In light of the obviously serious nature and adverse functional impact of the Applicant’s mental health conditions upon him, there were two comments in the JCA which confound me because they are patently inconsistent with the balance of the assessment: 

    The client’s medical condition/s does not prevent him from using public transport without substantial assistance.

    and

    The client’s personal factors have Moderate impact on their ability to work, obtain work or look for work.

26. I give those two comments no weight.

27. In the formal review decision dated 25 July 2022, the ARO referred to the comment in the JCA that the Applicant’s medical condition does not prevent him from using public transport without substantial assistance and Dr Fares’ findings set out above.

28. The ARO emphasised that the rating of 1 to 5 in the form Dr Fares completed is about the ability to use public transport, without assistance, at any place and time. The ARO stated:   

    The inability to use public transport criteria is generally satisfied if your doctor rates you at 4 or above, on more than one activity. Your rating against the scale reflects the degree of assistance that is required for you to perform the activities with no difficulty. A person who rates 3 across a range of activities may still qualify after weighing up the combined impact of these activities on their ability to use public transport.

29. That last sentence is a reference to the content of Topic 3.6.6.30 of the Social Security Guide.

30. Finally, the ARO noted that the Respondent’s records showed that the Applicant was no longer undertaking a qualifying activity for MA purposes and advised that if he commenced another qualifying activity, he could apply again and provide a new medical report.

31. Dr Fares provided a ‘Medical Report Mobility Allowance’ dated 29 July 2022. He set out the Applicant’s mental health history. He rated each of the Applicant’s personal survival skills, educational skills and recognition skills 3 and his social skills at 4. In Dr Fares’s opinion the Applicant’s difficulty using public transport because of his disabilities was temporary and was likely to last less than 12 months.

32. The Applicant told AAT1 that he had been banned from various modes and routes of public transport due to his behaviour and is unable to catch the forms of public transport that he is not banned from because he was constantly harassed by police.

33. Dr Messiah (GP) provided a Medical Report Mobility Allowance, dated 15 February 2023, the same day the Applicant had attended the practice and first became Dr Messiah’s patient.  Dr Messiah set out the Applicant’s psychiatric diagnoses and allocated ratings of 3 to the Applicant’s personal survival skills, education and recognition skills and 4 to social skills.

34. The doctor’s opinion was that ‘Public transport may exacerbate PT condition which could be harmful to him or others’ and that the Applicant’s difficulty in using public transport was likely to be ‘Temporary’ and last ‘12 months or longer’. Again, apart from a consultation it is not apparent what information Dr Messiah had before him to make his assessment.

35. The medical evidence from 2016 to 2023 reflects the seriousness and longstanding nature of the Applicant’s mental health conditions. Dr Fares and Dr Messiah were at a disadvantage having only consulted with the Applicant once or perhaps twice in Dr Fares’s case. The history set out in the JCA from the psychiatric registrar is compelling. I am satisfied that the Applicant has an inability to use public transport without substantial assistance. The ratings of Dr Fares in his 29 July 2022 report and of Dr Messiah are consistent with that finding, taking into account the content of the Social Security Guide at Topic 3.6.6.30. 

36. Section 1.1.S.380 of the Guide states that ‘substantial assistance’ means a greater assistance than a person might reasonably expect on a casual basis from a member of the public or transport staff. I accept the Applicant’s statement about what happens when he travels on public transport. Clearly, the assistance he requires is ‘substantial’, given the nature of his difficulties, as confirmed by both Doctors Fares and Messiah.

37. Dr Messiah’s findings made over a year after Dr Fares first provided information about the Applicant, support the finding that the Applicant’s difficulty using public transport would last for an extended period.

    38.In his claim submission, the Applicant indicated that he was participating in a disability employment service (DES), Wise Employment Ltd, at Lakemba and travelling to and from home to do DES programme. He provided a photograph of those premises.

38. The Respondent’s records for the Applicant show ‘DES Plc 18/03/22’, that he was ‘exited’ by a DES provider on 10 May 2022 and that he was on a ‘Jobsearch Plan Until Des/Fin 10/05/22’. That he did so is consistent with the recommendation made by the assessors in the JCA.

39. The Applicant was a handicapped person who is unable to use public transport without substantial assistance for an extended period due to his mental disability and was undertaking job search activities under an agreement between the Secretary and a service provider nominated by the Secretary from about 18 March 2022 to 10 May 2022.

40. The Applicant satisfied section 1035(1)(d) of the Act.

    Qualifying activity

41. I am also satisfied that the Applicant had to travel to and from his home for the purpose of job search activities pursuant to subsection 1035(2)(c) of the Act.

    Conclusion

42. For the above reasons, I am satisfied that the Applicant qualified for mobility allowance from 27 April 2022 when he applied for MA until 10 May 2022 when he was exited from the DES programme. 

    DECISION

43. The reviewable decision is set aside and in substitution the decision is made that the Applicant qualified for mobility allowance from 27 April 2022 to 10 May 2022.  

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..................................[sgd]......................................

Associate

Dated: 15 August 2023

Date of hearing:	12 July 2023
Solicitors for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers