Clark and Secretary, Department of Family and Community Services

[2005] AATA 625

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 625

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/414

GENERAL ADMINISTRATIVE DIVISION		)
Re		RODNEY CLARK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr JG Short (Member)

Date29 June 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

JG SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Mobility Allowance – whether applicant performing voluntary work for charitable, welfare or community organisations – applicant cares for his mother – decision affirmed

Social Security Act 1991 s 1035

REASONS FOR DECISION

29 June 2005   Mr JG Short (Member)    

background

1.      By application lodged 6 December 2004, Mr Clark sought review of a decision made by a delegate of the respondent (the Department) on 12 October 2004 refusing payment of Mobility Allowance on the basis that he was not working or undertaking work related training or performing voluntary work for at least 32 hours over a 4 week period.

mr clark’s case

2.      Mr Clark said that the summary of information relating to his circumstances drawn by the authors of the Social Security Appeals Tribunal (the SSAT) decision of 12 November 2004 and recorded at paragraph 7 of those Reasons (T2/3-5), accurately record his circumstances.  Mr Clark elaborated on some of the information contained in those Reasons for Decision.

3.      Mr Clark confirmed that he is dependent upon Disability Support Pension payments, together with payment of a Carer Allowance, made in relation to the care he provides for his mother.  Mr Clark lives at Christie Downs, and each day travels to his mother’s home at Morphett Vale, where he assists her with her daily care.  Mr Clark’s mother has been assessed as approaching the category of care requirement known as “high needs”.

4.      In the past Mr Clark has performed some voluntary work as a driver for the Noarlunga Hospital.  He has not performed this work for the last 18 months to 2 years as his need to care for his mother has taken priority over his ability to continue to perform voluntary driving work.  Mr Clark’s mother is now 86 years of age, and suffers from conditions including osteoarthritis.  She has five stents in her chest.  Her mobility is poor, and is assisted by a walking stick and a frame.  She is also struggling to come to terms with the death of her husband.  Mr Clark explained that his mother is still in the anger stage of grieving and to some extent vents her anger in his direction.

5.      It is common ground that Mr Clark’s medical condition, which includes severe arthritis in his back and knees, prevents him from using public transport.  As a consequence, Mr Clark travels by taxi.  The journey to his mother’s home costs approximately $10, and the return journey is about $13 (the return journey is made in the evening).  Mr Clark explained that he has the benefit of a taxi access scheme, but that this only reduces his transport costs by taxi by 50 percent and only on 10 days per month.  Thereafter, Mr Clark said that he is required to pay the full price for his transport by taxi to and from his mother’s home and that the only moneys he has available to meet these payments are his Carer Allowance and his Disability Support Pension.  Mr Clark said that he administers his mother’s medication, and helps with her housework.  He also takes her to medical appointments and has her prescriptions filled.  He also helps her with showering when required, takes her blood pressure, and looks after her finances under an enduring power of attorney.  Mr Clark explained that if he were not caring for his mother, then she would have to enter a nursing home, and at this stage she does not wish to do so.

6. Mr Clark said that he understood that the reason the Department refused his application for Mobility Allowance was the Department’s view that he was not engaged in voluntary work for at least 32 hours in every 4 weeks. Mr Clark referred to the definition of voluntary work contained at s 1035(3) of the Social Security Act 1991 (the Act).  The definition reads as follows:

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

7.      Mr Clark suggested that the word “welfare” had a dictionary definition of “wellbeing – help given to people in need”.  Mr Clark also referred to a letter dated 10 February 2005 from Mr Phil Saunders, Manager Policy and Communication (Acting) of the Carers Association of South Australia Inc.  This letter reads as follows:

“Mr Clark is known to us as a family Carer for his mother.

We acknowledge the considerable voluntary work efforts that Rodney puts in in caring for his mother.

It is our recommendation that Rodney continue to provide the service of caring for his mother.”  [Exhibit A1]

8.      Mr Clark suggested that in the light of the definition of “welfare” he had described and the abovementioned letter from the Carers Association of South Australia Inc, the relevant legislation may be satisfied and he may qualify for payment of Mobility Allowance.

department’s case

9. Ms Powell told the Tribunal that the Department did not dispute the suggestion that Mr Clark satisfied all of the requirements of s 1035(1)(f) of the Act save and except the requirement that Mr Clark be engaged in voluntary work for at least 32 hours in every 4 weeks on a continuing basis. Ms Powell referred to the definition of “voluntary work” contained at s 1035 of the Act. She suggested that in order to satisfy the relevant section of this definition a person needed to show, amongst other things, that he or she was undertaking work in a voluntary capacity for charitable, welfare or community organisations (emphasis mine).  Ms Powell said that as Mr Clark was performing voluntary work for an individual (and this is the basis of his receipt of Carer Allowance) and not for a charitable, welfare or community organisation, Mr Clark did not qualify for Mobility Allowance on the basis of performing voluntary work.

consideration

10. It is clear that in order to qualify for a payment of Mobility Allowance an applicant must satisfy at least one of the circumstances described in s 1035(1)(a) to (g) of the Act inclusive. The sub-section which most nearly fits Mr Clark’s circumstances is s 1035(1)(f) of the Act. This sub-section reads as follows:

“1035(1) A person is qualified for a mobility allowance if the person satisfies the travel test set out in subsection (2) and:

…

(f)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; or

…”

11. Ms Powell conceded that Mr Clark satisfied ss 1035(1)(f)(i) and (ii)(A) and (B) and (iii) of the Act. Unfortunately for the success of this application, ss 1035(1)(f)(ii)(C) must also be satisfied. This requires a finding that Mr Clark is engaged in voluntary work for at least 32 hours in every 4 weeks on a continuing basis. On the evidence, I find that Mr Clark is assisting his mother for longer periods than 32 hours in every 4 weeks. However, the definition of voluntary work contained in s 1035(3), that is “work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations” does not include care provided on a voluntary basis for an individual.  The definition clearly requires that the work be provided for charitable, welfare or community organisations.  While the definition of “welfare” suggested by Mr Clark may well be correct, such a definition does not overcome the requirement that the work be performed for a defined category of organisation.  The letter provided by Mr Saunders of the Carers Association of SA Inc dated 10 February 2005 does not suggest that Mr Clark is performing work for the Carers Association of SA Inc.  The letter simply acknowledges the “considerable voluntary work efforts that Rodney puts in in caring for his mother”. 

12.     In the light of the abovementioned circumstances, I am not satisfied that Mr Clark meets all of the criteria necessary for a payment of a Mobility Allowance, and consequently the application for review is unsuccessful.

13.     Although Mr Clark’s application has been unsuccessful, I will take the opportunity of commending Mr Clark for the care he provides for his mother.

decision

14.     The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  20 May 2005
Date of Decision  29 June 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms J Powell
Solicitor for the Respondent     Centrelink Legal Services Branch