Drummond and Secretary, Department of Family and Community Servic Es
[2003] AATA 526
•5 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 526
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/1850
GENERAL ADMINISTRATIVE DIVISION ) Re LOUISE DRUMMOND Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO, Member Date5 June 2003
PlaceSydney
Decision The decision under review is affirmed. (Sgd) Rear Admiral A R Horton AO
………………………………………….
Member
CATCHWORDS
SOCIAL SECURITY – eligibility for Mobility Allowance – Applicant in receipt of Disability Support Pension - Applicant has physical, intellectual or psychiatric impairments – whether Applicant meets Mobility Allowance criteria – whether travel test is satisfied - whether employment/training test is satisfied.
Social Security Act 1991 – sections 19, 1035
REASONS FOR DECISION
5 June 2003 Rear Admiral A R Horton AO Member 1. Miss Louise Drummond, the Applicant in this matter, seeks review of a decision of the Social Security Appeals Tribunal (“the SSAT”) on 20 November 2002 which affirmed a decision of an authorised review officer (“ARO”) on 18 September 2002, that she is not eligible for the Mobility Allowance. The decision by the ARO had in turn affirmed the original decision by an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 27 August 2002 which determined that the Applicant was not so eligible.
2. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 3 December 2002. At a hearing before the Tribunal on 16 May 2003, the Applicant was self represented and gave evidence by telephone. Mr E Thistlethwaite, an advocate for Centrelink, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (“the T- documents”).
LEGISLATION
3. Section 19 provides definitions and section 1035 of the Act defines the qualification criteria for the mobility allowance and state, relevantly:
19 Mobility Allowance definitions
In this Act, unless the contrary intention appears:
gainful employment means:
(a) paid employment (including sheltered employment); and
(b) self-employment that is intended to result in financial gain.
handicapped person means a person who:
(a) has a physical or mental disability; and
(b) has turned 16.
sheltered employment means paid employment in respect of which a direction under section 32 or 33 is in force.
vocational training includes training for a profession or occupation and, where used in Part 2.21 (Mobility allowance), also includes training known as independent living skills or life skills training.
1035 Qualification for mobility allowance
1035(1) A person is qualified for a mobility allowance if the person satisfies the travel test set out in subsection (2) and either:
(a) all of the following apply:
(i) the person is a handicapped person;
(ii) the person is engaged in gainful employment;
(iii) 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 because of the person's physical or mental disability; and
(C) the person is engaged in gainful employment for at least 8 hours a week on a continuing basis;
(v) the person is an Australian resident; or
(b) all of the following apply:
(i) the person is a handicapped person;
(ii)the person is undertaking vocational training (other than training provided as part of a rehabilitation program or follow-up program under Part III of the Disability Services Act 1986);
(iia)the person is not receiving an amount called the training component from the Employment Department;
Note: The training component is paid to a person to assist with his or her expenses in undertaking vocational training.
(iii) 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 because of the person's physical or mental disability; and
(C) the person is undertaking the vocational training, or a combination of the vocational training and gainful employment, for at least 8 hours a week on a continuing basis; and
(D) the vocational training will assist the person to find gainful employment or to carry on a profession, trade or business;
(v) the person is an Australian resident; or
(ba) all the following apply:
(i) the person is a handicapped person;
(ii)the person is receiving newstart allowance, youth allowance or austudy payment;
(iii) 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 because of the person's physical or mental disability; and
(iv)the person is not receiving an amount called the training component from the Employment Department;
Note: The training component is paid to a person to assist with his or her expenses in undertaking the job search activities.
(vi) the person is an Australian resident; or
(c) 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 because of the person's physical or mental disability; and
(C) the person is undertaking job search activities under an agreement between the Secretary and a service provider nominated by the Secretary to the Employment Department;
(iia)the person is not receiving an amount called the training component from the Employment Department;
Note: The training component is paid to a person to assist with his or her expenses in undertaking the job search activities.
(iv) the person is an Australian resident; or
(ca) 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 because of the person's physical or mental disability; and
(C) the person is undertaking job search activities under the Competitive Employment Placement and Training Program administered by the Department;
(iv) the person is an Australian resident; or
(d) 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 because of the person's physical or mental disability; and
(C) the person is engaged in voluntary work approved by the Secretary for charitable, welfare or community organisations for at least 8 hours a week on a continuing basis;
(iv) the person is an Australian resident.
Note 1: for handicapped person, gainful employment, and vocational training see section 19.
Note 2: for Australian resident see section 7.
1035(2) 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 approved by the Secretary for charitable, welfare or community organisations.
BACKGROUND AND EVIDENCE
4. The Applicant was born in Russia on 3 January 1962. She arrived in Australia as a refugee in 1983. In 1992, she became eligible for the Disability Support Pension, and remains so to the present. On 26 August 2002, following discussion with Centrelink, she submitted a claim for Mobility Allowance. The accompanying Treating Doctors Report (T6 folios 21 - 26), dated 14 August 2002 and signed by Dr Nora Abelev, noted the conditions of osteoarthritis of the spine and legs, allergy problem, hernia, history with kidneys, four operations and rheumatism.
5. From the T-documents, the Tribunal was aware that the Respondent had expressed concern that the Treating Doctors Report (“the TDR”) appeared to have been completed by both Dr Abelev and the Applicant. In evidence, the Applicant stated that whilst she attended various doctors, Dr Abelev was her general practitioner and had completed the report. That report is the only external medical document available to the Tribunal. The Applicant considered her physical condition to be deteriorating. She stated she has no psychiatric or intellectual disability, which accords with the entry in the TDR, but can get very emotional.
6. Miss Drummond gave evidence that she lives at Redfern, and travels “almost each day” to the City or occasionally elsewhere, using public transport. The purpose of these trips is to attend medical examinations or appointments and to shop. She travels by bus to the station, then train; she takes with her a trolley, which she requires to carry personal papers, medications and any shopping. The trolley provides support when stopping for rest, but leads to difficulties getting on and off public transport, and whilst travelling. She stated that she had travelled to the city earlier in the week of the hearing, and had travelled to the Tribunal on three occasions prior to the hearing.
7. At Part A of the TDR (folio 23), which refers to physical disabilities, the responses to all five questions on the ability to use public transport, covering matters of walking, standing, sitting and negotiating steps, was to the effect that there was no “level of difficulty or discomfort”. The evidence given orally to the Tribunal by Miss Drummond was somewhat different, and also somewhat contradictory. She stated that she could walk 400 metres (the criteria used in the TDR) but with difficulty, and with a requirement to rest every 5 minutes. She also indicated that at times, particularly in the mornings, buses are infrequent or overcrowded, so she walks from her home to the station, which takes about 40 minutes. She further stated that she had to take extra precautions when crossing streets or negotiating kerbs, where the physical layout is not convenient.
8. Miss Drummond described travelling in public transport as presenting mobility difficulties, a lack of comfort, and being emotionally stressful. Buses and trains are often crowded, requiring her to stand for the journey. Her trolley has to be watched, and she has encountered some interference by other passengers. She stated that coping with the steps on and off public transport can sometimes present problems, but generally is not difficult except where her trolley is concerned. She receives little help from other passengers when boarding or alighting from transport with her trolley. She has no problems when she alights from the bus or train, but finds it most difficult when the vehicle is crowded. She has no problems in calculating fares or purchasing tickets, nor in identifying the cheapest option of travel, but has to ensure that she has the correct change, which she feels she must closely guard.
9. Miss Drummond agreed with the Tribunal that Redfern Station, like many other stations, required the negotiation of a number of steps to and from the platforms. At times she finds this difficult, but nonetheless she copes. Again, she is offered little help from other commuters.
10. Miss Drummond is not employed, in receipt of Newstart Allowance or Austudy payment, undertaking job search activities or engaged in approved voluntary work. Therefore, the only relevant criteria under section 1035(1) of the Act that might apply are those incorporated in section 1035(1)(b). Sub-sections (b)(iii) (C) and (D) of that section refer to the requirement to be “undertaking vocational training, or a combination of vocational training and gainful employment, for at least 8 hours a week on a continuing basis; and the vocational training will assist the person to find gainful employment or to carry on a profession, trade or business;…..”. Miss Drummond gave evidence that she continues to attend the Waterloo Neighbourhood Centre where she undertakes courses in living skills, social behaviour, general knowledge and cooking. She has been attending this facility for some years.
11. Her frequency of attendance is usually one day a week, but on occasions she may attend twice. Depending on the subject and the Centre agenda, the class may last up to 2 or 3 hours. When asked if any course dealt with the use of public transport, she replied that she did not require such training. There are seemingly no specific course lengths. She confirmed that she did not undertake any vocational training that would equate to 8 hours or more per week, but would consider additional courses if available.
APPLICATION OF LAW AND FINDINGS
12. By way of final submission, Miss Drummond emphasised her physical difficulties in mobility and travelling in public transport, and expressed concern that the emotional difficulties she encountered were not accorded due consideration. She stressed the requirement for realistic consideration of her busy life which required much travelling to meet medical examinations and appointments.
13. The Respondent submitted that the Applicant does not satisfy the criteria in section 1035 of the Act, sub-section (1)(b) being relevant. Specifically, the Respondent submitted that the Applicant does not meet sub-sections (b)(iii)(A) and (B) in that she can, and does, use public transport without substantial assistance, and sub-section (b)(iii)(C) in that she is not undertaking vocational training for at least 8 hours per week. The Respondent conceded that the Applicant could meet sub-sections (b)(ii) and (b)(iii)(D) in respect of vocational training, but that was insufficient as all components under sub-section 1035(1)(b) must be met.
14. In considering whether the Applicant qualified for the Mobility Allowance, the Tribunal was appreciative of the honest evidence given by her as to constraints in travelling in public transport and of attendance at Waterloo Neighbourhood Centre for various “living skills” courses. Her evidence was such as to confirm that only sub-section 1035(1)(b) is relevant to the consideration of this matter, as she did not meet the criteria for employment, job search or volunteer work required by other sub-sections. Of relevance, all components of sub-section 1035(1)(b) must be met.
15. Considering those components, Miss Drummond meets sub-section (b)(i) in that she is a “handicapped person” pursuant to the definition in section 19 of the Act. It can be accepted that she is undertaking vocational training and therefore meets sub-section (b)(ii), and she meets sub-section (b)(iia) in that she is not receiving an amount called the training component. She also meets the criteria in sub-section (b)(v) In that she is an Australian resident.
16. In the view of the Tribunal, it is doubtful if she would meet the criteria in sub-section (b)(iii)(D), as it seems unlikely that the course in “living skills” she is undertaking at Waterloo Neighbourhood Centre could lead to gainful employment or a profession, trade or business. However, it is not necessary to reach a definitive position on that matter, as on the evidence, Miss Drummond does not meet the criteria in sub-sections (b)(iii)(A) and (B) in respect of an “inability to use public transport without substantial assistance” nor sub-section (b)(iii)(C) in respect of vocational training for “at least 8 hours a week on a continuing basis”.
17. Miss Drummond gave evidence that she travels frequently by bus and train, and with some difficulty, perhaps made more so by requiring to take a stroller, can cope with getting on and off such transport and negotiating steps at stations. She also gave evidence that she can walk for some distance without assistance, taking short breaks as necessary. The Tribunal is also mindful that on four occasions, on her evidence, she has travelled to the Tribunal or the SSAT, apparently without assistance. In respect of the final matter, that of vocational training of at least 8 hours per week, her evidence to the SSAT was that she attends a course for 1 to 2 hours per week, and occasionally visits the centre on another day. Her evidence to the Tribunal differed from that only to the extent that she usually attends once a week for 2 to 3 hours and sometimes twice a week. That does not meet the 8 hours requirement under the Act. Thus the Applicant does not meet the conditions as defined in section 1035 of the Act, and is not eligible for the Mobility Allowance.
18. The decision under review, that the Applicant is not eligible for the Mobility Allowance, is affirmed.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton, AO, Member.
Signed: (Sgd) Kwai-Ling Wong .......................................................................................
AssociateDate of Hearing 16 May 2003
Date of Decision 5 June 2003Representative for the Applicant Self
Advocate for the Respondent Mr E. Thistlethwaite
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