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

[2018] AATA 4583

Carthew and Secretary, Department of Social Services (Social services second review) [2018] AATA 4583 (12 December 2018)

Division:GENERAL DIVISION

File Number:           2017/5985

Re:Seraphina Carthew

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:12 December 2018  

Place:Melbourne

The Tribunal affirms the decision under review.

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

The Hon. Matthew Groom, Senior Member

Catchwords

SOCIAL SECURITY – mobility allowance – cancellation – whether applicant meets qualification for mobility allowance – whether applicant was involved in more than
32 hours of specified activities over a four week period – applicant no longer undertaking vocational training – applicant no longer undertaking voluntary work – grace period lapsed – decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

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

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

INTRODUCTION

1. Centrelink made a decision to cancel the applicant's mobility allowance with effect from 25 January 2016.  The applicant sought an internal review.  On 4 October 2016 an authorised review officer of Centrelink ("ARO") affirmed the decision.  The applicant sought a review of the ARO’s decision by the Administrative Appeals Tribunal Social Services & Child Support Division ("AAT1"). On 7 September 2017 AAT1 affirmed the ARO’s decision. The applicant now seeks review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal. Centrelink is the service delivery agency for the Department of Social Services.

BACKGROUND

1. The applicant was granted a mobility allowance commencing in May 2009.

2. On 9 January 2015 Centrelink commenced a review of the allowance during which the applicant was asked to verify the activities being undertaken that would qualify her for the continued receipt of the allowance.[1]

   [1] T Documents (TD) 51.

3. The applicant provided Centrelink with a letter dated 5 May 2015 from the Northern College of the Arts & Technology (“NCAT”). The letter confirmed that the applicant was enrolled in a course titled ‘NCAT Create’, comprised of two subjects - Folio Enhancement and Certificate III in Visual Arts. The course commenced on 13 February 2015 and concluded on 30 October 2015. The course ran for the equivalent of three days per week (including two days per week of scheduled classes).[2]

   [2] TD 24.

4. On 31 October 2015, Centrelink commenced a 12-week grace period during which the applicant continued to receive the allowance.[3]

   [3] TD 51.

5. By letter dated 2 November 2015 Centrelink advised the applicant that, in the absence of further information, it intended to cease payment of the mobility allowance with effect from 25 January 2016. The applicant was advised that to continue to receive the allowance she would need to “be involved in more than 32 hours of work related to training and/or work and/or voluntary work over a four week period”.[4]

   [4] TD 25.

6. On or around 12 December 2015 the applicant provided further information to Centrelink in support of a continuation of her allowance. The applicant advised that she was continuing to study full time in the NCAT course until 13 March 2016. The course load was described as 10 to 20 hours per week.[5]

   [5] TD 27.

7. By letter dated 25 January 2016 Centrelink advised the applicant that her mobility allowance had been cancelled because she had stopped work, training, voluntary work or job search activities more than 12 weeks earlier.[6]

   [6] TD 29.

8. On or around 29 January 2016 the applicant spoke with an officer of Centrelink to enquire as to why the allowance had been cancelled. The applicant advised the officer that she had been undertaking volunteer work with the Uniting Church. The applicant was asked to provide verification including the number of hours per week.[7]

   [7] TD 52.

9. On 15 April 2016 the applicant again spoke with an officer and was advised that the verification information had not been received. [8]

   [8] Ibid.

10. On 16 August 2016 the applicant lodged a review of the original decision to cancel the mobility allowance.

11. On 4 October 2016 an ARO of Centrelink affirmed the original decision to cancel the allowance.[9]

    [9] TD 56.

12. On 24 January 2017 the applicant applied to the AAT1 for a review of the ARO decision.[10]

    [10] Ibid.

13. On 7 September 2017 the AAT1 affirmed the ARO decision.[11]

    [11] TD 2.

LAW

1. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).

2. Relevantly, under s 1035 of the Act, a mobility allowance is payable if a person is handicapped, they are unable to use public transport without substantial assistance due to their physical or mental disability either permanently or for an extended period, and they are undertaking certain specified activities and they require transport for those activities.

3. The ‘specified activities’ include gainful employment, vocational training or voluntary work of at least 32 hours every four weeks on a continuing basis (or a combination of two or more of those activities); undertaking job search activities under a relevant agreement or program; or undertaking a vocational rehabilitation program.

4. For the purpose of the section, ‘voluntary work’ means work approved by the Secretary and undertaken in a voluntary capacity for charitable, welfare or community organisations.

5. For the purpose of the section, ‘vocational training’ includes training for a profession or occupation and also includes training known as ‘independent living skills’ or ‘life skills training’.

6. Section 1046 of the Act provides that in certain circumstances a person will be paid a mobility allowance for a grace period of 12 weeks after they have ceased the specified activities.

7. Relevant policy is contained in the Guide to Social Security Law ("the Guide") which should be followed unless there is a cogent reason to depart from stated policy.[12]

   [12] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

ISSUES

1. The issues to be determined by the Tribunal are:

   (a)whether the applicant was undertaking the necessary vocational training or voluntary work to be eligible to receive a mobility allowance at the date of the cancellation of the allowance on 25 January 2016; and

   (b)whether there is any other reason for concluding that the decision on 25 January 2016 to cancel the applicant’s mobility allowance was not the correct and preferable decision.

EVIDENCE

1. In considering this matter the Tribunal had regard to the following evidence:

   (a)the T documents (the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975);

   (b)an unsigned letter dated 24 March 2017 from a Ms Tina Mifsud of Neami National in relation to the applicant’s participation in various programs and activities with handwritten amendments;

   (c)a signed letter dated 25 October 2015 from Dr Jon Rumble, Co-ordinator of the Hope Springs program undertaken through the Uniting Church;

   (d)oral evidence of the applicant;

   (e)oral evidence of Ms Mifsud.

2. At the conclusion of the hearing the Tribunal directed that:

   (a)the respondent provide any further information that could corroborate the applicant’s involvement with ‘Lentil As Anything’ together with any written submissions by 24 October 2018;

   (b)the applicant provide any further supporting material or submissions by 24 October 2018; and

   (c)the parties provide final submissions by no later than 31 October 2018.

3. In response to the direction, the Tribunal received the following additional documents, which it has considered in making its decision:

   (a)a copy of an unsigned letter dated 11 October 2018 from Ms Mifsud to the respondent providing further information in relation to the applicant’s involvement with Neami National;

   (b)a copy of a letter dated 30 October 2018 from Ms Kate Morison providing further information in relation to the applicant’s involvement with Lentil As Anything;

   (c)a copy of an email between the applicant and Ms Vanessa Schultz dated 31 October 2018 providing further information in relation to the applicant’s volunteer and training activities; and

   (d)further written submissions from the respondent dated 24 October 2018 and 31 October 2018 respectively.

4. The T documents tendered into evidence included:

   (a)An unsigned letter dated 17 January 2017 from Ms Abbey De Prada of Mind Australia, stating that the applicant had been attending the Day to Day Living Program at Sprout Community Garden for “several years”. Ms De Prada notes that “during this time, Seraphina has attended sessions in our gardening program on a Monday and Tuesday, and photography groups on a Wednesday. Seraphina is currently enrolled in a cooking group on Mondays 10am – 2pm, a photography group on Wednesdays 10am – 1pm and an art group on Thursdays 10am – 2pm".

   (b)An unsigned letter dated 24 March 2017 by Ms Mifsud, Community Rehabilitation Worker of Neami National. The letter states that the applicant has been engaged in a number of programs run by  Neami National, including:

   i.‘Flourish Workshops’ – a peer run self-development program that emphasises wellness. The program runs for two and a half hours per week for 12 weeks;

   ii.‘Social Skills’ – a program to improve social skills to enable those participating to establish more meaningful relationships or connections with others. The program runs for six weeks – the number of hours per week is omitted.

   iii.‘Who am I?’ – a program exploring identity. The program runs for one and a half hours per week for six weeks.

   iv.‘Cooking Group’ – a program to teach healthy food choices and easy cooking methods. The program runs for two hours per week for six weeks.

   v.‘Mindfulness’ – a program teaching mindfulness techniques. The program runs for two hours per week for six weeks.

   vi.‘Managing Depression’ – a program teaching about the triggers for depression and strategies for management. The program runs for two and a half hours per week for six weeks.

   vii.‘Art & Craft Class’ – a program that runs for two hours per week for six weeks.

   viii.‘Social Dinner’ – an opportunity to socialise in a safe environment. The dinner runs for two hours.

   ix.‘Social Skills Outing’ – an opportunity to socialise. The outing runs for two hours.

   The letter gives no details about the dates on which the programs were run or on which the applicant attended.
   
   

   (c)A letter dated 11 June 2017 from Thelma York, Convenor of Rosanna Uniting Church's "Sammy Stamp" activities, stating that the applicant regularly joined the group.

   (d)A letter dated 7 September 2017 in which the applicant wrote that Abbey De Prado had "only been working in the organisation for a year so couldn't verify that I have been a part of Sprout Community Garden @ Mind Australia since late 2007" and that in regard to Neami National "there is unfortunately a constant change over of staff”.

5. During the hearing the applicant tendered another unsigned letter dated 24 March 2017 from Ms Mifsud. The tendered letter appeared to be in the same form as the earlier letter except with the addition of two paragraphs and some handwritten notes. The additional paragraphs stated that “these programs have added up to 32 hours over a four week period” and also provided details of additional programs namely:

   (a)with ‘Partners in Recovery’ – “additional hours of social skills and Life Skills – 2 hours per week since March 2016 – this has been ongoing for continued basis”; and

   (b)with ‘Hope Springs’ – a “Vocation Rehab program – Independ Living Skill”. “2 hours per week 25.10.15 – Seraphina confirms she been with the program since 2008”.

6. The handwritten notes stated “Amended via phone conversation VS” and “amended 12.9.18 VS” and “amended 12.9.18”. The applicant also tendered in evidence a signed letter dated 25 October 2015 from Dr Jon Rumble, Coordinator of the Hope Springs program. The letter states that the applicant participated in the Hope Springs program but her participation pre-dates the relevant period. Dr Rumble states in the letter that the applicant had been a regular participant in an art group “for many years now, since 2008”. “The group runs from 10am until 12noon every Monday during school terms. However, Seraphina often shows up much earlier than that to get the most possible benefit that she can from the group. She is a very enthusiastic participant”.

7. The applicant gave oral evidence to the Tribunal as follows:

   (a)That the applicant undertook a vocational studies course at NCAT from 13 February 2015 to 30 October 2015. She attended up to three days a week, including Thursdays and Fridays between 9.30am and 3.30pm; and also sometimes on Tuesdays, again between 9.30am and 3.30pm. The applicant confirmed she finished the course on 30 October 2015. The applicant requested an extension to complete her studies and in recognition of the impact of a difficult year including surgery and the death of her grandmother. NCAT advised that the extension was not possible.

   (b)That during her NCAT course and in the period following its completion and up until 25 January 2016 the applicant had undertaken a number of additional activities that together amounted to the equivalent of more than 32 hours every four weeks including:

   i.Spirit Community Gardens – the applicant gave evidence that following the conclusion of her NCAT course she undertook 2 programs – cooking, which ran for 4 hours a week on Monday between 10am and 2pm; and photography, which ran for 3 hours per week on Wednesday between 10am and 1pm. There was also an additional program in community art which ran on Thursdays but the applicant indicated she didn’t always attend that course. The applicant was not able to provide any corroborating evidence in relation to these programs.

   ii.Lentil As Anything – the applicant gave evidence that she had a long-standing involvement with Lentil As Anything and that between 30 October 2015 and 25 January 2016 she had been undertaking volunteer work folding paper and helping with admin on Saturdays between 11am and 1pm and sometimes as late as 2.30pm. At the time of the hearing the applicant was not able to provide any corroborating evidence in relation to these activities although she did indicate that the founder of Lentil As Anything, Mr Shanaka Fernando, could provide corroboration if he could be contacted.

   iii.Neami National – the applicant gave evidence that she undertook a number of programs with Neami National between 30 October 2015 and 25 January 2016 including: Flourish, Social Skills, Mindfulness, Who am I and Cooking. The applicant said that the times varied and that each ran for a number of weeks at a time. The applicant said that she was engaged for a minimum of two to three hours per week undertaking these activities during the relevant period. The applicant referred to a letter dated 24 March 2017 from Ms Mifsud of Neami National, confirming that “Neami National has been supporting Seraphina Carthew with ongoing mental health support […] Seraphina is current having weekly appointments with [me].”

   iv.Sammy Stamps – the applicant gave evidence that she had a long-standing association with Sammy Stamps and that she contributed approximately two hours per month on a Monday afternoon between 2.30 and 4.30 in volunteer work with the group.

   v.In addition, the applicant gave evidence that she had undertaken programs with Hope Springs but had difficulty in recalling detail. When pressed further for details, the applicant asked that the Tribunal disregard her involvement with Hope Springs in making its decision.

   (c)Under cross-examination it was put to the applicant that in her evidence before the AAT1 she had said that, other than her work with Sammy Stamps, she had not been engaged in volunteer work or vocational training when her allowance was cancelled on 25 January 2016. The applicant agreed that she had “probably said it” but that it was not a complete answer and she had been particularly stressed, was under a mountain of paperwork and didn’t have time to elaborate.

8. The applicant called Ms Mifsud to give evidence about the applicant’s engagement with Neami National as well as the applicant’s vocational training and volunteer work activities more broadly. Ms Mifsud gave evidence as follows:

   (a)Ms Mifsud confirmed that she had been a support worker who had worked with the applicant in her role with Neami National. Ms Mifsud was not able to be precise about the exact period she had worked with the applicant but believed it had commenced in “around 2015”.

   (b)Ms Mifsud confirmed that she had ”contributed” to the contents of a letter dated 24 March 2017 referencing detail of the applicant’s engagement with Neami National.

   (c)Under cross-examination Ms Mifsud said that she was not aware there were two versions of the letter dated 24 March 2017 before the Tribunal – one which had been provided to the AAT1 and another version tendered before this Tribunal, with some additional paragraphs and hand written amendments added. When the additional content was described to her she said she was aware of and agreed with the content.

   (d)Ms Mifsud confirmed that the applicant had undertaken a number of programs consistent with the letter of 24 March 2017 including Flourish Workshops, the Social Dinner, Social Skills Outing and the Cooking Group and that in total this was the equivalent of at least 32 hours every four weeks.

   (e)When asked under cross-examination how she could be so certain of the hours, Ms Mifsud said it was because she had seen the applicant’s diary and that  she had also participated in a number of the courses and that she could recall the applicant participating in them.

   (f)Ms Mifsud agreed that not all of the courses were running at the same time but rather ran for set periods on a quarterly basis throughout the year.

   (g)When asked if she could be sure that the applicant had participated in the courses during the relevant period between 30 October 2015 and 25 January 2016, Ms Mifsud said that she couldn’t be sure it was for the whole time but that she had direct knowledge of the applicant’s participation for part of that time. When asked whether she could provide more specific details, Ms Mifsud indicated that she wasn’t able to do so without looking at her files but that she could provide more details if she was able to consult those files.

9. As described earlier on in these reasons, following the conclusion of the hearing the parties provided further documents in response to a direction from the Tribunal. The additional documents included:

   (a)a letter dated 11 October 2018 from Ms Mifsud in which she sets out further detailed information in relation to the applicant’s engagement with Neami National. In the letter Ms Mifsud confirmed that the applicant had in fact not participated in any Neami National programs between 31 October 2015 and 25 January 2016. Ms Mifsud confirmed that the organisation’s first contact with the applicant was in August 2016.

   (b)a letter from Ms Morison, Restaurant Manager with Lentil As Anything, dated 30 October 2018. In the letter Ms Morison confirms that the applicant was a frequent volunteer with Lentil As Anything during the relevant period, although she was unable to provide any detail as to the exact times and the activities undertaken.

   (c)an email from the applicant to Ms Schultz dated 31 October 2018 in which the applicant states that she:

   i.participated at Mind Australia on Monday afternoons between 12.30pm and 3.30pm and the two other days, as stated in the letter from Abbey de Prada;

   ii.attended at Hope Springs on Mondays between 10am and 12pm;

   iii.volunteered at Sammy Stamps for two hours a month; and

   iv.volunteered with Lentil As Anything weekly for between two and a half and four hours.

CONSIDERATION

1. The central issue to be determined by the Tribunal is whether the applicant was undertaking the necessary vocational training or voluntary work to be eligible for receipt of the mobility allowance at the time her allowance was cancelled on 25 January 2016.

2. The Tribunal does not doubt that the applicant has, at various times, been engaged in vocational training and voluntary work with the organisations she identified in her oral evidence and in other materials before the Tribunal.

3. The issue for the Tribunal is whether it can be satisfied that the applicant was undertaking the required amount of training or voluntary work at the time her allowance was cancelled.

4. Having considered the evidence very carefully, the Tribunal notes a number of concerns with the applicant’s claims as follows:

   (a)In her oral evidence the applicant stated that between 30 October 2015 and 25 January 2016 she was undertaking between two and two-and-a-half hours a week in programs with Neami National. In the subsequent letter from Ms Mifsud dated 11 October 2018, Ms Mifsud confirmed that the applicant was not participating in any programs with Neami National during that period. Given that the applicant has not challenged the accuracy of Ms Mifsud’s subsequent letter despite being given the opportunity to do so, the only reasonable inference to draw is that the applicant has no basis for challenging the letter. Therefore the Tribunal concludes she did not participate in any programs with Neami National during this period and that her oral testimony was inaccurate in this respect. This raises very serious questions in the mind of the Tribunal in relation to the accuracy of the applicant’s other testimony.

   (b)In her oral evidence at the hearing the applicant stated with precision and certainty specific details of some of the training and voluntary work she claimed to have undertaken.  At the same time she demonstrated a complete inability to provide any detail at all in relation to other examples of training and volunteer work she claimed to have engaged in. For example, the applicant claimed to be able to recall specific class schedules for her activities with Neami National during the relevant period (and which the Tribunal is now satisfied were inaccurate) and yet was vague and unresponsive in relation to questioning on details of her activities with Hope Springs.

(c)There was an inherent inconsistency in the evidence the applicant gave at the hearing and the evidence she gave before the AAT1. Before this Tribunal the applicant stated with certainty that she was undertaking the required 32 hours over a four-week period on a continuing basis. Before the AAT1 she had stated that other than her work with Sammy Stamps she was not undertaking any vocational training or voluntary work activity at the time the allowance was cancelled. The applicant sought to explain this discrepancy as being the result of her being stressed in the earlier hearing and ‘under a mountain of paperwork’ and not in a position to ‘elaborate’ at the time. This is not a satisfactory explanation when considering how central the information is to the applicant’s claim and also that the applicant maintained that she was experiencing a heightened level of stress during her evidence before this Tribunal.

(d)There is a lack of reliable supporting evidence corroborating the applicant’s claims regarding the details of training and voluntary work activities being undertaken at the relevant time. This is despite the fact that the applicant was given additional time following the hearing to provide the Tribunal with further corroborating evidence which she then failed to do.

1. The applicant claimed to be undertaking significant activities through Mind Australia’s Spirit Community Gardens. The only documentary evidence in support of this assertion was an unsigned letter under the name of Ms Abbey De Prado. This document was also tendered to the AAT1. The applicant declined to call Ms De Prado at either hearing. The applicant also wrote to the AAT1 discounting the quality of the evidence Ms De Prado could offer, on the basis that Ms De Prado had "only been working in the organisation for a year so couldn't verify that I have been a part of Sprout Community Garden @ Mind Australia since late 2007". In the applicant’s subsequent email to Ms Schultz dated 31 October 2018, the applicant questioned some of the detail in Ms De Prado’s letter. Accordingly, the Tribunal can place very little weight on this evidence.

2. The Tribunal was also concerned about the reliability of the letter from Ms Mifsud dated 24 March 2017, tendered in support of the applicant’s claims. The letter tendered did not appear to be under Ms Mifsud’s own hand; but rather was an amended version of an earlier letter that had been tendered with the AAT1. The amendments were particularly self-serving for the applicant and appeared to have been made by or on behalf of the applicant on the day of this hearing. While Ms Mifsud stated that she was aware of the content of the additional paragraphs and agreed with their content, the Tribunal was left with the impression that she was not aware of the existence of the amended letter and had been “put on the spot” in relation to its existence and content.

3. The Tribunal was left with the distinct impression that the applicant had reconstructed in her mind parts of the detail she was providing to the Tribunal in relation to her training and work activities. She appeared to be very conscious of the requirements that needed to be satisfied in making out her claim. The applicant left the Tribunal with the impression that she was more focussed on satisfying the Tribunal that the requirements had been met rather than ensuring that she was providing a truthful and accurate account of the activities.

4. The Tribunal is satisfied that the applicant has undertaken some of the training and voluntary work activities that she has described. However, given the inaccuracies and inconsistencies in the applicant’s own evidence, and in the absence of reliable supporting evidence, the Tribunal is not satisfied that the applicant was undertaking the level of activities required to be eligible for the allowance at the time the allowance was cancelled.

5. Accordingly, it is the view of the Tribunal that the applicant was not eligible to receive the mobility allowance as at the date of the cancellation. Therefore, the decision to cancel the allowance was the correct and preferable one.

DECISION

1. The Tribunal affirms the decision under review.

I certify that the preceding 41 (forty one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

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

Associate

Dated: 12 December 2018

Date(s) of hearing:	12 September 2018
Advocate for the Applicant:	Ms Vanessa Schultz
Advocate for the Respondent:	Mr Cameron Munro
Solicitors for the Respondent:	Legal Services Division, Department of Human Services