Doran and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1325

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1325

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nº 2007/0194

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MICHAEL DORAN

Applicant

And

SECRETARY,

DEPARTMENT OF EMPLOYMENT  AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date26 April 2007

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY - mobility allowance – applicant blind and in receipt of Disability Support Pension blind – supported wage employment system – Centrelink inconsistencies in applying legislative requirements

Social Security Act 1991Section 1035A

REASONS FOR DECISION

26 April 2007 Miss E.A. Shanahan          

BACKGROUND TO THE APPLICATION

1.      Mr Doran has been legally blind since 1993.  His residual vision allows him to distinguish between light and dark only.  He has been in receipt of a Disability Support Pension (DSP) Blind since 13 January 1972 and a mobility allowance since 7 June 1993.  He works 38 hours per week at Vision Australia Enterprises (VA) at 201 High Street Prahran, packaging goods.  VA is a supported employment provider and all vision impaired workers are paid according to output.  There are seven pay levels and Mr Doran is paid at level four.  Mr Doran received $685 per fortnight for March 2006 and this increased to $715 per fortnight from 4 January 2007.

2.      Revised legislation regarding mobility allowance came into effect on 1 July 2006.  On 2 July 2006 Mr Doran was notified that as of 1 July 2006 he qualified for the higher rate of mobility allowance at $100 per fortnight (T6, p20).  On 11 July 2006 a further Centrelink advice stated A decision has been made that you are no longer eligible for the higher rate of Mobility Allowance (T7, p23).

3.      Mr Doran attended a Centrelink office to enquire about the decision of 11 July 2006 and he says he was told that he had no right of appeal.  Ms Mary Pipczak (Supervisor of VA) lodged a written request dated 28 July 2006 for an appointment for Mr Doran and his case manager to meet with a Centrelink officer to discuss this decision (T8, p26).  Ms Pipczak also sought a clarification of the changes to the mobility allowance as it had affected other VA workers and clients.  It is not clear if an appointment was arranged for Mr Doran and his case manager or if an interview with a disability support officer took place.  On 9 August 2006 a Centrelink officer confirmed the decision of 11 July 2006 to be correct, as Mr Doran was in supported employment and earning below the average wage.  Mr Doran sought a review of the decision by an Authorised Review Officer (ARO) on 14 August 2006.  An ARO affirmed the decision on 7 September 2006 (T10, p33).  In the interval between the primary decision and the ARO’s review, Mr Doran had complained about the delay to his local Member of Parliament, Mrs Fran Bailey.  Her office made enquiries of Centrelink on 7 September 2006 in an effort to accelerate the process (T11, p41).  The ARO’s decision was made on that day.  Mrs Bailey also made representation on Mr Doran’s behalf to the Minister for Workforce Participation (T14, p44).

4. Mr Doran sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the decision on 4 January 2007. Mr Doran applied to the Administrative Appeals Tribunal (AAT) for review of the SSAT decision on 29 January 2007. Mr Doran was self-represented and the Secretary was represented by Mr Faisal Bakhtiar, an advocate with Centrelink Legal Services. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).

5.      Mr Doran, Mrs Nicola Misso and Mr Maurice Gleeson gave evidence. 

EVIDENCE BEFORE THE TRIBUNAL

Mr Michael Doran

6.      Mr Doran’s evidence was as outlined in the background paragraphs.  Mr Doran had a detailed and accurate understanding of the relevant legislation and readily accepted that his appeal to the AAT would be unsuccessful.  Mr Doran confirmed that he travelled from Diamond Creek to Prahran by train (with one train change) daily and that this journey took him one hour.  His residence in Diamond Creek was in an area devoid of structured footpaths and paved roads.  It was impossible for him to safely walk to the station.  No local bus was available.  He travelled each morning from his residence to the Diamond Creek station (a distance of four kilometres) by cab, at an average cost of $5.15.  Frequently, he found it difficult to obtain a cab for the return trip at night as taxi drivers were reluctant to accept short distance fares in the late afternoon.  He frequently disembarked from the train at Eltham or Greensborough stations, where more taxis were available.  The trip from one of these stations to his home cost $8 to $10.  He was therefore spending $13 to $15 per day on taxis, in addition to his train fares.  When trains were cancelled or did not run on his line he used a cab from his home to VA in Prahran.  His expenditure on taxis obviously exceeded both the general and higher fortnightly mobility allowance.

7.      Mr Doran’s major concern was the variation in interpretation of the legislation by Centrelink officers.  He said 11 others employed at VA had been granted the higher allowance having made their applications by telephone.  Of these 11, only two lived a long distance from VA and used taxis.  These 11 persons were also in supported employment, although details of their earnings were not known.  Some of them had received back pay to 1 July 2006 and others had not.  Mr Doran could not see any pattern to or rationale for Centrelink granting the higher mobility allowance to those 11 and not to him. 

8.      Having made several enquiries by telephone, Mr Doran was instructed to attend the Centrelink office.  After queuing for three hours he saw two Centrelink officers who re-assured him that he qualified for the higher rate.  

9.      The Tribunal Member, being familiar with the site of the VA and the Windsor Centrelink office, both being in High Street, Prahran, asked Mr Doran to assess the distance between the two sites.  His mother, Mrs Doran estimated the distance to be 20 metres.  The Tribunal Member passes this area every second day of the week and believes the distance to be 100 metres. 

Mr Maurice Gleeson

10.     Mr Gleeson is the Policy Advocacy Officer of VA and is based in Glenferrie Road, Kooyong.  Mr Gleeson advised that he intervenes on behalf of VA employees on request (Mr Doran’s request is at T13, p43).  Mr Gleeson said the handling by Centrelink of the mobility allowance matters since 1 July 2006 had been ambiguous, with clients receiving very different advice.  Some VA employees had been notified of the change in their mobility allowance, some had not.  Some had automatically received back pay to 1 July 2006 and some had not.

11.     The Tribunal asked if these problems had decreased with the passage of time; given that the new legislation came into effect on 1 July 2006 and Centrelink now had nearly ten months experience in applying the legislation.  Mr Gleeson said he had not seen any improvement with the passage of time and he said the waiting time for a decision from Centrelink remained at six to eight weeks. 

12.     Mr Gleeson, in response to a further question from the Tribunal, said some 60 to 80 people worked at VA and most were visually impaired and therefore on DSP Blind and eligible for a mobility allowance.  He described the layers of communication with Centrelink as poor.  He said that a person could better resolve problems and obtain answers to enquiries if the individual could attend the Centrelink office in person.  This was obviously difficult for the visually impaired. 

Mrs Nicola Misso

13.     Mrs Misso gave evidence by telephone.  She is employed by VA and has been Mr Doran’s mobility officer for several years.  She explained the training she conducted.  She assessed Mr Doran’s ability to use trains and trams as good; but said he could not walk from home to the railway station as it was simply not safe for him to do so.

DOCUMENTARY EVIDENCE

14.     Mr Doran’s general practitioner, Dr Ian Reynolds, confirmed that Mr Doran was legally blind and that he was anxious about using the public transport system as he had been assaulted and robbed while travelling on a train. 

Communication between Mr Doran and Centrelink

15.     Mr Doran’s contact with Centrelink is documented in the T-documents (T23, p80-124).  The majority of contacts have been made by telephone via the Centrelink call service and received by operators in Toowoomba, Gosford, Perth, Cairns, Townsville, Coffs Harbour, Launceston and numerous cities and towns in Victoria.  The Tribunal accepts that all these sites will be linked to a central computer system and acknowledges that simple requests regarding DSP payable advice, change of address and change of telephone number have been dealt with adequately.  In some instances Mr Doran has been referred to other offices, as the officer could not provide the information requested.  The enquiry from Fran (presumably Mrs Fran Bailey, MP) was dealt with immediately (T23, p85).

RELEVANT LEGISLATION

16. Section 1035A of the Social Security Act 1991 deals with qualifications for mobility allowance.  The section relevantly provides:

…

1035A(3)A person satisfies this subsection if:

(a)the person is receiving disability support pension; and

(b)one or both of the following applies to the person:

(i)     the person is working for at least 15 hours per week on wages that are at or above the relevant minimum wage;

(ii)     the person is undertaking job search activities under an agreement between the Secretary and the person for work of at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(c)if the person is working as mentioned in subparagraph (b)(i)—the person is required to travel to and from the person’s home for the purpose of performing the work; and

(d)if the person is undertaking job search activities as mentioned in subparagraph (b)(ii)—the person is required to travel to and from the person’s home for the purpose of undertaking those activities.

1035A(4)A person satisfies this subsection if:

(a)subsection (2) does not apply (or has ceased to apply) to the person; and

(b)the person is working for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(c)immediately before the person started that work, the person was receiving disability support pension; and

(d)the person ceased to be qualified for disability support pension because of the number of hours worked; and

(e)since starting that work, the person:

(i)     has been working at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(ii)     has not received another income support payment; and

(f)the person is required to travel to and from the person’s home for the purpose of performing that work.

1035A(5)A person satisfies this subsection if:

(a)subsection (2) does not apply (or has ceased to apply) to the person; and

(b)at a particular time, the person starts to earn income from work or the person’s income from work increases; and

(c)immediately before that time, the person was receiving disability support pension; and

(d)the disability support pension ceased to be payable to the person because the rate of the pension is nil due to the income, or increased income, the person earned from the work; and

(e)since the time mentioned in paragraph (b), the person has been working at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(f)the person is required to travel to and from the person’s home for the purpose of performing that work; and

(g)since the time mentioned in paragraph (b), no income support payment has been payable to the person because the rate of the payment is nil due to the income, or increased income, the person has been earning from the work.

17.     Mr Doran does not meet the requirements for the higher rate of mobility allowance.  The Guide to the Social Security Law 1.1.R133 (the Guide) states that;

Work that is at or above the relevant minimum wage does NOT include:

·pro-rata wages under SWS, other industrial agreement or special Federal Minimum Wage that allows for the payment of reduced wages to employees with a disability, based on their productivity, or

·wages paid at reduced rates under an exemption from the minimum rate if pay, special wage permit, or similar, because of the employee's disability.

18.     While the Tribunal is not bound by government policy as enunciated in the Guide, it is clear that the Guide correctly addresses and interprets the legislation and its intent.

DECISION

19.     As Mr Doran accepts, it is clear that he does not meet the eligibility criteria for the higher mobility allowance payment.

20.     The Tribunal affirms the decision under review.

21.     Mr Bakhtiar has undertaken to liaise with Centrelink regarding the concerns raised in this matter.  He has agreed to convey the Tribunal’s recommendation that, given that there are 60 to 80 Centrelink clients at VA, which is at 201 High Street, Prahran and the Windsor Centrelink office is 100 metres to the east at 255 High Street, Prahran (although called the Windsor Office), Centrelink could more efficiently deal with DSP and mobility allowance and like problems by attending VA on a regular basis.  This would be preferable to having blind members of the community queuing for hours to see an officer. 

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of:

Miss E.A. Shanahan

Signed:  Ursula Noyé

Clerk

Date of Hearing:  26 April 2007
Date of Decision:  26 April 2007
Advocate for the Applicant:         Self-represented
Advocate for the Respondent:      Mr F Bakhtiar, Centrelink Legal Services