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

[2020] AATA 1779

Dunstan and Secretary, Department of Social Services (Social services second review) [2020] AATA 1779 (16 June 2020)

Division:GENERAL DIVISION

File Number(s):      2019/7502

Re:Julia Dunstan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO

Date:16 June 2020

Place:Canberra

The Tribunal varies the reviewable decision dated 5 November 2019, in that Ms Dunstan satisfied the qualification criteria for a mobility allowance set out in s 1035(1)(f) of the Social Security Act 1991 as at 10 May 2019.

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Deputy President Gary Humphries AO

Catchwords

SOCIAL SECURITY – mobility allowance – whether the applicant was engaged in any voluntary activity for 32 hours in every 4 week period on a continuing basis – whether the applicant was unable to use public transport without substantial assistance because of her disability – applicant volunteers for 32 hours in every 4 week period on a continuing basis – applicant is unable to use public transport without substantial assistance – decision under review varied

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Cases

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

REASONS FOR DECISION

Deputy President Gary Humphries AO

16 June 2020

INTRODUCTION

1. Ms Julia Dunstan lives in Canberra, and has a disability. She had been in receipt of a mobility allowance since 2011. The mobility allowance is an income support payment made to people with a disability, aged 16 or over, who cannot use public transport without substantial assistance and are required to travel to and from their home in order to undertake approved activities, which include work, study, training or job search.[1] However, her mobility allowance was cancelled by Centrelink in 2018. She made two subsequent claims for the allowance in 2019, both of which were rejected. She sought merits review of those three decisions at the first tier of this Tribunal (the AAT1), but her applications were refused and the decisions affirmed. She now seeks review at the second tier of the three decisions to deny her the mobility allowance.

   [1]

   BACKGROUND

2. Ms Dunstan was granted mobility allowance from 11 January 2011, but the allowance was cancelled on 12 October 2018 because Centrelink considered that she was no longer participating in work, training, voluntary work or job search activities (the cancellation decision).

3. On 2 January 2019, Ms Dunstan lodged a new claim for mobility allowance. Her claim relevantly stated that she was studying Visual Arts at the Australian Catholic University for 25 hours over a four-week period, and attending training at Alcoholics Anonymous for 50 hours over a four-week period. This claim was rejected on 24 January 2019 (the first claim).

4. She lodged a further claim for mobility allowance on 10 May 2019. This claim stated that she was undertaking a Certificate III in Horticulture at the Canberra Institute of Technology for 32 hours over a four-week period, and various courses with her treating psychiatrist for between 10 and 20 hours over a four-week period. She said in her claim form that she undertook irregular contract work at the University of Canberra, and was doing voluntary work for Alcoholics Anonymous for 42 – 50 hours over a four-week period.[2] This claim, too, was rejected, on 13 May 2019.

   [2] In this decision italics generally denote a direct quotation.

5. On 25 May 2019 Centrelink reversed this decision and found that she was entitled to the allowance from 10 May 2019. However, on 26 June 2019 that decision, in turn, was reversed and the decision to reject her claim on 13 May 2019 was, in effect, reinstated (the second claim).

6. Ms Dunstan sought internal review of those decisions but, on 12 September 2019, an Authorised Review Officer affirmed the decisions dated 12 October 2018, 24 January 2019, and 26 June 2019. She sought merits review of this decision by the first tier of the Tribunal but on 5 November 2019 the AAT1 affirmed the review officer’s decision.

7. On 18 November 2019, Ms Dunstan lodged an application for second review with this Tribunal. The Respondent in these proceedings is the Secretary, Department of Social Services.

8. A hearing of Ms Dunstan’s application was conducted by telephone on 18 May 2020, in circumstances where, as part of its response to the COVID-19 pandemic, the Tribunal determined that all in-person hearings at registries of the Tribunal across Australia were to cease and other arrangements explored. The Tribunal sought the parties’ views on whether the hearing could be conducted by telephone at the time of listing. The Secretary consented to the hearing proceeding by telephone however, no response was received from Ms Dunstan. The Tribunal is satisfied that the parties, but especially Ms Dunstan, in circumstances where she was self-represented, were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting sections 33A and 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act).

   RELEVANT LEGISLATION

9. Eligibility for the mobility allowance is set out in s 1035 of the Social Security Act 1991 (the Act). This section is complex but the following helpful summary of its provisions was provided by the Secretary.

10. Subsections 1035(1) and (2) provide that a person is qualified for mobility allowance if:

    a.    a person is a handicapped person

    b.    the person is:

    i.engaged in gainful employment for at least 32 hours in every 4 weeks on a continuing basis; or

    ii.undertaking vocational training for at least 32 hours in every 4 weeks on a continuing basis; or

    iii.receiving newstart allowance, youth allowance or austudy; or

    iv.undertaking job search activities under an agreement between the Secretary and a service provider nominated by the Secretary; or

    v.undertaking job search activities under the Competitive Employment Placement and Training Program; or

    vi.engaged in voluntary work for at least 32 hours in every 4 weeks on a continuing basis; or

    vii.undertaking a vocational rehabilitation program; and

    c.     the person is unable to use public transport without substantial assistance either permanently or for an extended period, and that inability is due to the Applicant’s physical or mental disability; and

    d.    the person is required to travel to and from the person’s home for the purpose of undertaking:

    i.Gainful employment; or

    ii.Vocational training; or

    iii.Job search activities; or

    iv.Voluntary work; or

    v.A vocational rehabilitation program

    e.    the person is an Australian resident.

11. Subsection 1035(3) states that for the purposes of that section:

    vocational training means vocational training within the meaning of section 19 (other than training provided as part of a rehabilitation program or follow-up program under Part III of the Disability Services Act 1986).

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

12. In addition, the Social Security Guide (the Guide) provides assistance in interpreting relevant provisions of the Act. Though not bound by the Guide, the Tribunal should use its provisions unless there are cogent reasons for departing from it (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

13. Schedule 2 of the Social Security (Administration) Act 1999 provides that the date from which a social security payment is made is, generally, the date on which the claim is made. Eligibility is to be determined as of that date or during the ensuing 13 weeks. The Secretary may cancel a social security payment if satisfied that it is being paid to a person who is not or was not qualified for the payment.

    ISSUES

14. In these proceedings, the Tribunal is required to determine whether Ms Dunstan met the qualification criteria pursuant to s 1035 for the mobility allowance:

    (a)on 12 October 2018, the date of the cancellation decision;

    (b)on 2 January 2019 (the date of the first claim) and in the subsequent 13 weeks; and

    (c)on 10 May 2019 (the date of the second claim) and in the subsequent 13 weeks.

15. The Secretary accepted that Ms Dunstan met a number of the criteria in s 1035. That is, she is a handicapped person, she is an Australian resident and she is required to travel to and from her home for some of the purposes prescribed in the section. It was agreed between the parties that Ms Dunstan was not receiving newstart allowance, youth allowance or austudy; engaged in job search activity of any kind; or undertaking a vocational rehabilitation program at any relevant time. Although she made reference during the hearing to having ad hoc employment at certain points with the University of Canberra, no evidence of that employment was advanced. Accordingly, the two matters which were in dispute between the parties, and which it falls to the Tribunal to resolve, are whether Ms Dunstan:

    (a)was at any relevant time undertaking vocational training or engaged in voluntary work (or a combination of the two) (qualifying activity) for at least 32 hours in every four-week period on a continuing basis; and

    (b)was unable to use public transport without substantial assistance, either permanently or for an extended period, due to her disability.

    CONSIDERATION

    Was Ms Dunstan undertaking qualifying activity for the requisite number of hours?

16. Ms Dunstan contended that she undertook a number of qualifying activities at the relevant times. These included study at the Australian Catholic University and the Canberra Institute of Technology and training to become a yoga teacher. There was a dispute between the parties as to whether some of these activities constituted vocational training, as defined by the Guide, and disagreement as to the number of hours during which Ms Dunstan undertook this study/training.

17. Ms Dunstan also provided evidence to confirm that she volunteers at:

    (c)Alcoholics Anonymous – ten hours per week;

    (d)Power Yoga Canberra – twelve hours per month; and

    (e)The Food Co-operative Shop – two hours per month.

    There was also some dispute as to whether some of these activities qualify as voluntary work pursuant to the Guide, and as to the number of hours Ms Dunstan actually volunteered in those roles.

18. In this decision, the Tribunal will focus on only one of those potentially qualifying activities, namely her volunteering at Alcoholics Anonymous. This is because, if she satisfies the Tribunal that she engages in 10 hours per week of voluntary work at that organisation, she comfortably satisfies paragraph 1035(1)(f) in this respect, and no further qualifying activity is required. Alternatively, if she does not so satisfy the Tribunal, it is common ground that all her other claimed qualifying activity cannot in total reach the requisite 32 hours in every four-week period, and her claim must fail.

19. Ms Dunstan gave evidence that she has been active in Alcoholics Anonymous since 2010. She herself is a recovering alcoholic. She said there were 49 meetings a week of the organisation in Canberra, and she attends on average one meeting a day.

20. A statutory declaration executed by Mr Charles Foley and dated 1 May 2019 was before the Tribunal. It appeared that Mr Foley exercises a leadership or administrative role in Alcoholics Anonymous. In the declaration he says:

    I have seen her volunteer at her local groups of this organisation at least 10 hours a week by assisting with various aspects of the group work and by taking people to the meetings who are new…, by doing kitchen duties and other misc tasks… She has done her volunteer work to my knowledge since before last October.

21. The Secretary referred the Tribunal to the following provisions of the Guide relating to what constitutes voluntary work:

    For the purposes of standard rate MOB, voluntary work on a continuing basis, must be:

    olikely to last for at least 3 months, AND

    ofor a period of at least 32 hours every 4 weeks, AND

    oprovided willingly by a recipient without obligation or payment, other than for out-of-pocket expenses, AND

    operformed for a charitable, welfare or community organisation run on a not-for-profit basis with the objective of providing services or assistance to the community (see examples), AND

    odemonstrated by the organisation to have provided a service, product or benefit to the community, AND

    oapproved by the Secretary of the Department or their delegate, after carefully considering the nature and objectives of the voluntary work…

    Examples:

    oCharitable or welfare organisations include the Salvation Army, Meals on Wheels and Society of St Vincent de Paul.

    oSome churches/religious organisations also provide services and assistance to the community and can be considered charitable or welfare organisations. Services and assistance such as grief counselling, counselling for the ill and their families, assistance to ill or elderly people, provision of emergency relief/food parcels, or fund raising for charitable works can be considered as qualifying voluntary work. However, activities such as attending services, singing in choirs, or religious canvassing are not considered qualifying voluntary work.

    oCommunity organisations include sporting associations, schools and service clubs such as Rotary, Apex and Lions.

22. The Secretary contended that Ms Dunstan attended Alcoholics Anonymous meetings at least partly as a participant, not as a volunteer. She also argued that the organisation was no longer registered as a charity in Australia, and was not a community organisation which fell within the definition provided by the Guide.

23. The following information appears on the Alcoholics Anonymous Australia website:

    Alcoholics Anonymous is a fellowship of men and women who share their experience, strength and hope with each other that they may solve their common problem and help others to recover from alcoholism.

    The only requirement for membership is a desire to stop drinking. There are no dues or fees for AA membership; we are self-supporting through our own contributions. AA is not allied with any sect, denomination, politics, organization or institution; does not wish to engage in any controversy; neither endorses nor opposes any causes. Our primary purpose is to stay sober and help other alcoholics to achieve sobriety.

    AA is an informal society of more than 2 million recovering alcoholics throughout the world. In Australia, there are about 18,000 members. They meet in over 2000 local meetings spread around the country. Meetings range in size from a handful in some localities to a hundred or more in larger communities.

    AA is nonprofessional – it doesn’t have clinics, doctors, counsellors or psychologists. All members are themselves recovering from alcoholism. There is no central authority controlling how AA groups operate. It is up to the members of each group to decide what they do. However, the AA program of recovery has proved to be so successful that almost every group follows it in very similar ways.[3]

    [3] >

    The website also gave information about meetings. The information suggested that there are more than a dozen meetings of the organisation every week in Canberra.

24. The Guide requires that qualifying volunteering must be for an organisation which meets certain criteria. It must be an organisation of a charitable, welfare or community character, it must not operate on a for-profit basis and it must have the objective of providing services or assistance to the community. However, it is clear from the examples given of such organisations that they do not need to be registered charities or have a particular legal status or qualifying form of government or official certification. The inclusion of churches, schools and service clubs in the list of possible eligible organisations precludes that interpretation. It needs to be an organisation, not merely an ad hoc committee or group of volunteers. An unincorporated association, for example, would satisfy this requirement. It must not return profits to its members and it must provide services to the community broadly defined, which may include its own members.

25. The Tribunal can see no reason why Alcoholics Anonymous does not satisfy these criteria. Its services appear to be available to anyone who claims to be a recovering alcoholic, and the absence of membership fees or dues would suggest that no profits are returned to those who belong to it, or to anyone else. The Tribunal takes official notice that it is an organisation with a reputation in the community, at least historically, for assisting people to overcome alcoholism.

26. The Tribunal accepts the evidence from both Ms Dunstan herself and from Mr Foley that Ms Dunstan does volunteer extensively in this organisation. It accepts the Secretary’s submission that merely attending meetings does not constitute volunteering, but it also accepts Ms Dunstan and Mr Foley’s evidence that Ms Dunstan does much more than that, including chairing meetings, assisting with administration and transporting participants to and from the meetings – what she called service work. Ms Dunstan testified that she had been volunteering since the beginning of her involvement with Alcoholics Anonymous in 2010. Both Ms Dunstan and Mr Foley said that these activities consume at least 10 hours per week. Given that her evidence was that she attends several meetings every week, this level of volunteering is quite plausible. The Tribunal accepts the evidence of both those individuals that this level of activity has continued since at least October 2018. The Tribunal also accepts that the sort of activities described by both individuals as volunteering indeed falls within that description for the purposes of the Guide.

27. The Secretary submitted that chairing meetings did not constitute volunteering. The Tribunal disagrees; chairing meetings constitutes an important facilitative function which ordinary attendees are not required to contribute to.

28. Accordingly, the Tribunal finds that Ms Dunstan satisfies the qualifying activity specified in s 1035(1)(f), by virtue of her volunteering at Alcoholics Anonymous.

    Ability to Use Public Transport

29. The Secretary contended that there is no evidence before the Tribunal to demonstrate that Ms Dunstan is unable to use public transport without substantial assistance, either permanently or for an extended period, by reason of her disability, as required by s 1035.

30. Ms Dunstan explained to the Tribunal that she has two mental health assistance dogs (one’s in training, one’s due to retire) due to her mental illness. She travels with both of them, but doing so makes using public transport impossible. She also gave evidence that the bus routes servicing her home were complex and inconvenient.

31. The only evidence, other than her own testimony, relating to Ms Dunstan’s inability to use public transport was provided by her treating psychiatrist, Dr Ann Harrison. Dr Harrison provided two medical reports to accompany Ms Dunstan’s claims for mobility allowance. The Centrelink form requires a certifying medical practitioner to indicate what level of ability their patient has in relation to certain skills, namely:

    Personal survival skills – e.g. not a danger to self

    Social skills – e.g. ability to relate to bus drivers or public

    Educational skills – e.g. ability to handle money or buy tickets

    Recognition skills – e.g. ability to recognise landmarks or areas

32. In her first medical report, dated 1 February 2019, Dr Harrison indicated that Ms Dunstan was Moderately limited in relation to the first two skills and had Full ability in relation to the latter two skills. In her second medical report, dated 5 April 2019, Dr Harrison described Ms Dunstan’s educational skills as Moderately limited and the other three skills as Severely limited. Dr Harrison provided this additional information in the later report:

    Julia gets extremely agitated (even if accompanied by assistance dogs) and as a result this interferes i.e. with people asking questions, potential danger (of people touching her/dogs) with her level of anxiety, especially trapped in spaces

1. The Secretary told the Tribunal that the manner of Dr Harrison’s completion of the first report suggests that Ms Dunstan was not unable to use public transport without substantial assistance. The Secretary also contended that the Tribunal should give Dr Harrison’s second report less weight, on the basis that it is inconsistent with her first report. It was also contended that the second report did not suggest that Ms Dunstan was unable to use public transport, merely that she found it difficult to do so. The test in s 1035 is whether a disabled person is unable to use public transport without assistance, a more stringent test than merely finding it difficult.

2. Ms Dunstan told the Tribunal that she had discussed the form with Dr Harrison after the rejection of the first claim, such that Dr Harrison was convinced that she had filled in the earlier form incorrectly. This, Ms Dunstan said, accounts for the inconsistency between the two forms.

3. Dr Harrison was not called to give evidence at the hearing, and thus the opportunity to explain the inconsistency was lost. However, the explanations offered by both parties for the inconsistency are plausible. Generally speaking, documentary evidence furnished to the Tribunal by a qualified medical practitioner satisfies the evidentiary foundation on which the Tribunal may determine questions of eligibility for social security payments. In the present circumstances, the Tribunal has decided that it must take the evidence provided by Dr Harrison at face value, and assume that she had good reason to provide a different opinion in April to the one she provided in February.

4. The Secretary was unable to tell the Tribunal in what manner the report completed by a medical practitioner needs to be marked in order to satisfy the statutory test in s 1035. If there is a Centrelink policy on which boxes need to be ticked on the form to meet the requirements, it was not drawn to the Tribunal’s attention. In the present circumstances, it appears reasonable to assume that, if Ms Dunstan’s personal survival, social and recognition skills are severely limited, she will be unable to use public transport without assistance.

5. The Secretary submitted that one reason Ms Dunstan could not use public transport was that the routes were inconvenient and she was unable to navigate them. This, said the Secretary, did not demonstrate that she was unable to use public transport. The Tribunal accepts that proposition, but does not accept that her personal difficulties with the routes constitute the principal reason she is unable to use public transport; the principal reason is that she needs to travel with her service dogs, and the difficulties associated with that, as described by Dr Harrison in her second report, make using public transport unviable. 

6. Dr Harrison’s second report, which describes a level of inability, is dated 5 April 2019. Accordingly, as at 10 May 2019, the date of her second claim, Ms Dunstan met the requirements of s 1035(1)(f)(ii)(A) and (B) with respect to inability to use public transport without substantial assistance on account of her disability. However, there is no evidence which would satisfy the Tribunal that she met those requirements in the periods relating to the cancellation decision and the first claim. In the circumstances where Dr Harrison’s opinion of Ms Dunstan’s level of inability changed between 1 February and 5 April 2019, I must assume her earlier opinion stood until the point where it evidently changed, i.e. 5 April 2019.

   CONCLUSION

7. Accordingly, the reviewable decision dated 5 November 2019 is varied, in that Ms Dunstan satisfied the qualification criteria for a mobility allowance set out in s 1035(1)(f) of the Social Security Act 1991 as at 10 May 2019.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

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Associate

Dated: 16 JUNE 2020

Date(s) of hearing:	18 May 2020
Date final submissions received:	5 March 2020
Applicant:	in person
Representative for the Secretary:	L Hinwood