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

Ellis and Secretary, Department of Social Services (Social services second review) [2016] AATA 490 (13 July 2016)

Division

GENERAL DIVISION

File Number

2015/4518

Re

Troy Ellis

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Deputy President Dr Christopher Kendall

Date 13 July 2016

Place Perth
The decision under review is affirmed.
........................[sgd]................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
SOCIAL SECURITY – Mobility Allowance – travel test – handicap – inability to use public transport without substantial assistance due to disability – gainful employment – vocational training – volunteer work – vocational rehabilitation program – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 – section 80
Social Security Act 1991 – sections 19, 1035 and 1046
CASES
Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60
SECONDARY MATERIALS
Guide to Social Security Law – sections 3.6.6.30, 3.6.6.40, 3.6.6.50, 3.6.6.53, 1.1.S.380
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
13 July 2016
INTRODUCTION

In Australia, Mobility Allowance provides assistance to people with disabilities who are engaged in certain activities and who cannot use public transport permanently or for an extended period of time without mobility assistance.
To be eligible for Mobility Allowance, applicants must:
·be 16 years of age or older;
·meet residency requirements;
·be unable to use public transport without substantial assistance because of disability, illness, or injury;
·provide a medical report from a doctor confirming they cannot use public transport; and
·be travelling to and from home for paid work, voluntary work, study or training, or travelling to look for work. Voluntary work must be for a charitable, welfare or community organisation. Study or training can include secondary school, tertiary studies, trade and vocational courses.
If someone receives Mobility Allowance but it is then determined that they are no longer eligible, Centrelink may cancel or suspend payments.
This matter requires the Tribunal to determine whether Mr Troy Ellis, who had qualified for Mobility Allowance, ceased to qualify for Mobility Allowance after 9 December 2014.
BACKGROUND FACTS
Mr Ellis has been diagnosed with Becker’s Muscular Dystrophy and Bipolar Affective Disorder.
In relation to his muscular dystrophy, Mr Ellis’s medical reports reveal that he has significant mobility restrictions (T8). In that regard, the Tribunal notes the contents of an Employment Services Assessment Report dated 10 March 2015 which refers to a medical report from Dr G Milne, Mr Ellis’s treating General Practitioner, as follows:
Condition:             Muscular Dystrophies                 Type:   Permanent
  (Duchenne and Becker)
This condition is:   Verified by medical evidence.
Remarks:             Medical report from Dr G Milne dated 28 April 2009 confirms:
  DIAGNOSIS: Becker’s Muscular Dystrophy
The client uses a walking stick as he can fall unexpectedly. The client has difficulty with bending and prolonged walking, standing and poor balance.
In relation to Mr Ellis’s Bipolar Effective Disorder, the Tribunal notes the following summary (T8 at 46):
Condition:                   Bi Polar Affective Disorder     Type:   Permanent
  (Manic Depression)
This condition is:      Verified by medical evidence
Remarks:                Medical Report from Dr G Milne dated 28 April 2009 confirms:
  DIAGNOSIS: Bi-polar Affective Disorder. ONSET: 2008
In the past customer has been treated with medication (Zyprexa) and has had admissions to mental health inpatient services in WA and Victoria. The most recent admission, customer reported, was at Bentley Mental Health Service in Reported 2015, for 3 days, after being brought in by Police. Currently customer takes Escitalopram.
IMPACT: Dr Milne reported agitation, manic episodes. Customer appears to have some difficulty with interpersonal relationships and communication. He reported minor altercations with police. During the Assessment interview, customer spoke loudly and rapidly. He presented with a very strong sense of self-importance and well being. Customer’s mood appeared euphoric and his thoughts disordered.
He is medicated on Zyprexa and an anti-depressant and managed by GP.
Client was linked as an outpatient to Bentley Hospital but discharged some months ago.
Mr Ellis was granted a Mobility Allowance on 31 March 2014 (T15). He had been engaged in vocational training activities with Communicare Inc since March 2014 (T12). However, he was exited from that program on 9 December 2014 (T14 at 61).
On 22 January 2015, Mr Ellis was sent a letter from Centrelink (T6) that advised as follows:
·You will continue to receive Mobility Allowance until 4 March 2015. After this date you will no longer receive Mobility Allowance.
·To continue receiving Mobility Allowance you will need to be involved in more than 32 hours of work related training and/or work and/or voluntary work over a four week period.
On 4 March 2015, Centrelink wrote to Mr Ellis and advised him that his mobility allowance payments were to be cancelled from that date (T7 at 43). Mr Ellis was advised as follows:
Your mobility allowance has been cancelled from 4 March 2015 because you stopped work, training, voluntary work or job activities with your Employment Services Provider more than 12 weeks ago.
Mr Ellis sought review of that decision.
On 11 May 2015, a Centrelink Authorised Review Officer (“ARO”) affirmed that decision, finding that Mr Ellis had not been engaged in a qualifying activity for mobility allowance since 9 December 2014 (T11 at 52). Relevantly, the ARO noted:
·You were in receipt of Mobility Allowance on the basis that you were engaged in a vocational rehabilitation programme with Communicare Inc.
·You did not attend your appointment with Communicare Inc on 9 December 2014.
·The last time you attend [sic] an appointment with them was on 25 November 2014.
·You were exited from this programme on 9 December 2014.
·You contacted this department on 22 January 2014 and you were told that you were not qualified for a Mobility Allowance advance because your payment was in a period of grace due to you not being connected to Communicare Inc.
·Your Mobility Allowance cancelled on 4 March 2015.
·You have asked for a review of this decision.
On the basis of this evidence, the ARO found:
I have spoken with the Manager at Communicare Inc and he assures me that after you failed to attend your appointment on 9 December 2014, a message was left on your mobile telephone by your case manager telling you that you have been exited from their program. I have formed the view that you ought to have known on 9 December 2014 and also on 22 January 2014 (after speaking with this department) that you were no longer connected to Communicare Inc. and your payment was in a period of grace. As you have not provided any evidence that you were engaged in any qualifying activity for Mobility Allowance after that date, I agree with the decision to cancel your payment from 4 March 2015 (that is, at the end of the 12 week period of grace). No arrears are payable.
Mr Ellis appealed the ARO’s decision to the Administrative Appeals Tribunal, Social Services and Child Support Division (the “SSCSD”).
The SSCSD found, relevantly, as follows:
17.… Although no direct medical evidence was available to the tribunal, the tribunal accepts that Mr Ellis has diagnosed handicaps. The tribunal also accepts, since mobility allowance was granted to him in March 2014, that a medical practitioner has certified that because of his disability Mr Ellis cannot use public transport without substantial assistance. …
18.It is clear from the evidence, however, that since 9 December 2014 Mr Ellis has not been engaged in any of the qualifying activities for mobility allowance. He is not in gainful employment, nor is he undertaking voluntary work with any organisation, nor is he participating in a vocational rehabilitation or training program approved by Centrelink. There is no scope in the legislation for the tribunal to take into account the reason or reasons Mr Ellis ceased to undertake any qualifying activity. Whatever the cause of Mr Ellis’s current circumstances, the tribunal is satisfied that since 9 December 2014 he has not been engaged in any of the activities contemplated by section 1035 of the Act, and that as a consequence, qualification for mobility allowance was lost from 9 December 2014, the date Mr Ellis was exited from his vocational training program.
19.The effect of section 1046 of the Act is that payment of mobility allowance can continue for 12 weeks after qualification for the payment is lost. In Mr Ellis’s case, that means his payment must cease on 4 March 2015. The tribunal concluded therefore that the payment was correctly cancelled from that date.
Mr Ellis has appealed the SSCSD’s decision to this Tribunal.
LEGISLATION
The legislation relevant to this matter is found in section 80 of the Social Security (Administration) Act 1999 (the “Administration Act”) and sections 19, 1035 and 1046 of the Social Security Act 1991 (the “Social Security Act”).
Section 80 of the Administration Act provides that the Secretary, Department of Social Services may cancel or suspend a social security payment (which included an “allowance” by virtue of section 23 of the Social Security Act) if the Secretary is satisfied that such payment is being paid to a person who is not or was not qualified for such payment.
Section 1035 of the Social Security Act outlines who qualifies for Mobility Allowance. It provides:
Qualification for mobility allowance
(1)A person is qualified for a mobility allowance at the rate specified in subsection 1044(1) if the person satisfies the travel test set out in subsection (2) and:
(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 due to the person's physical or mental disability; and
(C)    the person is engaged in the gainful employment for at least 32 hours in every 4 weeks on a continuing basis;
(iv)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;
(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 due to the person's physical or mental disability; and
(C)    the person is undertaking the vocational training for at least 32 hours in every 4 weeks on a continuing basis;
(iv)the person is an Australian resident; or
(c)all of 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 due to the person's physical or mental disability; and
(iv)    the person is required to satisfy the activity test;
(v)     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 due to 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;
(iii)the person is an Australian resident; or
(e)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 undertaking job search activities under the Competitive Employment Placement and Training Program administered by the Department;
(iii)the person is an Australian resident; or
(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
(g)     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;
(iii)the Secretary is of the opinion that the person is undertaking a combination of any 2 or more of the following:
(A)     gainful employment;
(B)     vocational training;
(C)    voluntary work;
for at least 32 hours in every 4 weeks on a continuing basis;
(iv)the person is an Australian resident ; or
(h)all of the following apply:
(i)the person is a handicapped person;
(ii)the person is undertaking a vocational rehabilitation program;
(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 due to the person's physical or mental disability;
(iv)    the person is an Australian resident.
(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; or
(e)     a vocational rehabilitation program.
(3)In this section: "vocational rehabilitation program" means a rehabilitation program (or follow-up program) under Part III of the Disability Services Act 1986 that provides a person with assistance to obtain or retain unsupported paid employment.
Note: A vocational rehabilitation program may include vocational training within the meaning of section 19.
"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.
Section 19 of the Social Security Act provides the following further definitions:
"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.
"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.
Section 1046 of the Social Security Act provides that the payment of mobility allowance may continue for 12 weeks after the qualification of the payment is lost. Mr Ellis’s payments were cancelled on 4 March 2015 – 12 weeks after it was decided that he was no longer eligible for Mobility Allowance (9 December 2014).
As correctly outlined by the Secretary, for the purposes of this matter, Mr Ellis will be found to satisfy the requirements of section 1035 of the Social Security Act and thus be eligible for Mobility Allowance as at 9 December 2014 if:
a)he satisfies the travel test; and
b)he is found to have a handicap; and
c)his disability prevents him from using public transport without substantial assistance, either permanently or for an extended period; and
d)he is undertaking any combination of vocational training, voluntary work, independent living / life skills training and gainful employment for at least 32 hours every 4 weeks on a continuing basis or he is engaged in a vocational rehabilitation program.
In determining these issues, the Tribunal can look to the policy advice contained in the Guide to Social Security Law (the “Guide”). In accordance with the principles outlined in Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60, the Tribunal can refer to and apply government policy as outline in the Guide as long as what is relied on is not inconsistent with the provisions and objects of the SRC Act.
EVIDENCE
At his request and in order to accommodate Mr Ellis’s physical disability, the Tribunal allowed Mr Ellis to appear via telephone. He was not legally represented.
The Secretary was represented by Mr Burgess.
The Secretary prepared a detailed Statement of Facts, Issues and Contentions dated 16 December 2015.
The Tribunal had before it a set of section 37 documents (T-documents) spanning 99 pages.
Mr Ellis did not present any evidence to the Tribunal, relying instead on the materials provided in the T-documents.
This was a challenging hearing. Despite being afforded every opportunity to present evidence that would assist him, Mr Ellis seemed more intent on criticising Centrelink, legal professionals and the judiciary. He also proceeded to outline his concerns regarding the treatment of persons with physical disabilities in Australia. The Tribunal does not doubt that Mr Ellis has suffered considerable discrimination throughout his life because of his disability. The frustrations he experiences every day are not uncommon. However, there was no evidence before this Tribunal that Mr Burgess had in any way acted inappropriately or that Mr Ellis’s claim before this Tribunal had in any way been addressed inequitably. Despite the tone and content of Mr Ellis’s oral evidence before this Tribunal, Mr Burgess remained calm and professional. The Tribunal thanks him for his assistance in that regard. The Tribunal is satisfied that Mr Ellis both understood what was required of him and was given ample opportunity to provide evidence of a sort that might have assisted him. Regrettably, as discussed below, he chose not to assist himself or the Tribunal in that regard.
THE SSCSD DECISION

The Tribunal notes the following analysis of the evidence before the SSCSD (T2) as follows:
10.It is clear from the Centrelink papers that Mr Ellis was granted mobility allowance from 31 March 2014 on the basis that he was undertaking vocational training with Communicare in Cannington. It is also clear, and the tribunal finds, that Mr Ellis last attended that program on 25 November 2014 and, having missed an appointment scheduled for 9 December 2014, he was exited from the program by Communicare on that date. The tribunal asked Mr Ellis about his reasons for failing to attend that appointment, and about his vocational activities since then.
11.Mr Ellis told the tribunal he did not want to go to Communicare any more as he had lodged a complaint against them because of discrimination and abuse he allegedly received at the hands of one of their employees. Mr Ellis said this employee wanted him to travel up to 100 kilometres in a week to look for volunteer work, but Mr Ellis was not prepared to do that amount of travel because of the fuel expense. Mr Ellis cannot now recall with whom he lodged the complaint, but he told the tribunal that in his opinion it was unethical of Communicare to exit him without his permission while the complaint was on foot, and without putting it in writing.
12.Mr Ellis went on to complain to the tribunal at some length about perceived deficiencies in the service he has received from Communicare and Centrelink. Mr Ellis described his treatment as “disgusting”, “unfair”, “immoral”, “victimisation”, “obscene”, “a form of torture” and a “disability hate crime”. He also accused Centrelink of deceitful behaviour in telling him on the one hand that he would be provided with a new service provider, but then telling him that no further provider was to be found for him. Mr Ellis told the tribunal he knows he is fully entitled to the allowance, and in his opinion, someone in Centrelink Victoria Park is lying about his entitlement in order to keep their job.
13.The tribunal noted that Centrelink sent new mobility allowance claim forms in March 2014, but Mr Ellis refused to take the form to a medical practitioner, writing across it instead “I do not have to and will not fill out this bureaucratic disallowance. Reinstate at once as my info is exactly the same. Cancellation due to Centrelink appointment lag. 10/3/15”. The tribunal pointed out that Mr Ellis’s situation was indeed not exactly the same, since Communicare has exited him from their program. Mr Ellis said that he should not have to reapply because all that was required was for Centrelink to give him another provider and reinstate the mobility allowance, with back pay. Mr Ellis added that a similar occurrence happened several years ago with his disability support pension, but after he complained to his Member of Parliament, a Centrelink employee had been dismissed.
14.The tribunal observed that in a mobility allowance review form signed on 18 September 2014, Mr Ellis advised that he was still with Communicare in Cannington but also that he was self-employed in a business called Tadpole Productions, working 112 hours in a 4 week period, and had been so employed since 1 January 2004. The tribunal asked Mr Ellis about this activity, as well as voluntary work he stated on the form that he was performing 4 hours a week with an organisation called “DPAW”, and had been since 1 August 2014. Mr Ellis said the organisation was actually the Department of Parks and Wildlife, where he used to volunteer in their call centre. However, that activity has stopped because of a bullying problem about which he has complained to the Human Rights Commission. The problem has yet to be fixed so Mr Ellis told the tribunal that his volunteering with this organisation is therefore “in hiatus”.
15.As to his self-employment, Mr Ellis said he is trying to establish himself as a writer and filmmaker though he is not doing much with it at the moment. He also designs children’s toys as well as being involved in extensive lobbying activity on behalf of people with a disability, and actively seeking work. He reads the newspaper every day as part of his search for a job. Mr Ellis mentioned too that although he is not an actual financial member, he is associated with the Lions Club and is considering standing for election to local government. Mr Ellis agreed that his business does not have an Australian Business Number nor does it lodge Business Activity Statements with the Australian Taxation Office as it has not earned any income.
16.Mr Ellis concluded by saying that in his view he is entitled to mobility allowance because he is independently looking for work and voluntary work, albeit without a disability services provider at the moment because of Centrelink’s actions.
CONSIDERATION
In order to qualify for Mobility Allowance, the evidence must show that Mr Ellis meets the eligibility criteria in section 1035 of the Social Security Act, as outlined above.
Did Mr Ellis, as at 9 December 2014, satisfy the travel test?
A person satisfies the travel test if they are required to travel to and from their home for the purpose of undertaking gainful employment, vocational training, job search activities or voluntary work or a vocational rehabilitation program.
Although Mr Ellis had been required to travel to and from his home for the purpose of vocational training with Communicare, the evidence shows that his relationship with Communicare ended on 9 December 2014. After that date, on the evidence, Mr Ellis was not “required” to travel anywhere as he had, in effect, nowhere to go. He was not, on the evidence, undertaking gainful employment, vocational training, voluntary work for at least 32 hours every 4 weeks on a continuing basis or, as outlined further below, undertaking a vocational rehabilitation program.
Mr Ellis thus fails to meet the “travel test” in section 1035(2) of the Social Security Act.
In the event that it could be found that Mr Ellis did meet the travel test (for example, that he was required to leave his home for the purposes of seeking gainful employment etc), for the reasons outlined below, it cannot be said that he met all of the other requirements required by section 1035(1) of the Social Security Act. Specifically, it cannot be found that Mr Ellis was in gainful employment, undertaking vocational training, engaged in voluntary work or undertaking a vocational rehabilitation program for the requisite time.
Did Mr Ellis, as at 9 December 2014, suffer from a handicap?
On the medical evidence before it (summarised at T8) and on the basis of the definition of handicap provided in section 19 of the Social Security Act, the Tribunal finds that Mr Ellis did suffer from a handicap at 9 December 2014.
Was Mr Ellis, at 9 December 2014, unable to use public transport without substantial assistance due to his disability?
In relation to this issue, the Secretary outlined the following relevant information:
4.12A person’s inability to use public transport is assessed on the basis of information supplied by them and their treating doctor. If the applicant's disability or any other existing evidence clearly indicates they require substantial assistance to use public transport, then no further information needs to be sought (section 3.6.6.30 of the Guide).
4.13Substantial assistance means greater assistance than a recipient might reasonably expect on a casual basis from a member of the public or transport staff (section 1.1.S.380 of the Guide).
4.14The Employment Services Assessment Report (T8/46) states that the Applicant’s mobility is limited. The Applicant requires a stick to support him whilst walking, is at a high risk of falling, has difficulty navigating steps and cannot stand, walk for prolonged periods or bend.
On the basis of this information, the Tribunal finds that Mr Ellis was indeed unable to use public transport without substantial assistance due to his significant physical disabilities.
Was Mr Ellis in gainful employment, undertaking vocational training, engaged in voluntary work or was he undertaking a vocational rehabilitation program as at 9 December 2014?
Gainful Employment
In relation to whether Mr Ellis was engaged in gainful employment, the Secretary contended as follows before this Tribunal:
4.18Gainful employment is defined to mean paid employment (including sheltered employment) or self-employment that is intended to result in financial gain (section 19 of the Act).
4.19Section 3.6.6.40 of the Guide sets out the policy for determining whether the person is undertaking gainful employment. A self-employed recipient is regarded as gainfully employed if they are substantially involved in running a business that is of a commercial character and that is intended to produce financial gain.
4.20Within the Applicant’s mobility allowance review form dated 18 September 2014 (T5/33-40), the Applicant noted that he was self-employed in a business, “Tadpole Productions” working 112 hours in a 4 week period. The Applicant advised that he commenced work with the business on 1 January 2004. There is no evidence available which supports the Applicant’s contention that he is self-employed at Tadpole Productions, that he was substantially involved in running a business of a commercial character or that the business is intended to produce financial gain. The Secretary contends that the Applicant was not in gainful employment at 9 December 2014.
Mr Ellis provided no evidence of any sort that would allow this Tribunal to conclude that he was engaged in gainful employment. No tax documents demonstrating financial gain etc were presented.
In the circumstances, the Tribunal finds that Mr Ellis was not engaged in gainful employment.
Vocational Training
In relation to whether Mr Ellis was engaged in vocational training, the Secretary contended as follows:
4.21Vocational training is defined to include 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 (section 19 of the Act).
4.22Section 3.6.6.50 of the Guide sets out the policy for determining whether a person is undertaking vocational training. Section 3.6.6.50 outlines that participation in one of the following structured education or training courses may be accepted as being vocational training:
(a)tertiary education including off campus study under a distance learning program,
(b)courses undertaken at publicly funded institutions for academic or trade qualifications, including secondary education,
(c)courses or training activities which form part of an EPP, but excluding vocational rehabilitation services programs,
(d)training by organisations that provide open employment services such as training under the Disability Employment Services;
(e)training provided by business services that provide supported employment (Australian Disability Enterprises); or
(f)training provided as part of the Green Army Programme.
4.23The Applicant commenced vocational training with Communicare Inc on 19 March 2014 (T12/57). The Applicant did not attend an appointment with Communicare Inc on 9 December 2014 (T12/57). The Applicant was exited from the Disability Employment Service on 9 December 2014 (T14/61).
4.24The Secretary accepts that Communicare Inc was an organisation that provided open employment services such as training under Disability Employment Services. The Secretary contends that the Applicant was not participating in vocational training at 9 December 2014.
4.25There is no discretion under the Act for this Tribunal to determine whether a person was exited from a Disability Employment Service Provider correctly. That decision is not reviewable.
Mr Ellis again provided no evidence that would allow this Tribunal to conclude that he was engaged in vocational training. Although Mr Ellis contended before this Tribunal that he was still active with Communicare, this contradicts what was said before the SSCSD and the documentary evidence shows otherwise. That evidence shows that Mr Ellis was indeed exited from the program on 9 December 2014.
In the circumstances, the Tribunal finds that Mr Ellis was not engaged in vocational training.
Volunteer work
In relation to whether Mr Ellis was engaged in volunteer work, the Secretary contended as follows:
4.26Subsection 1035(3) of the Act defines “voluntary work” as “work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations.”
4.27Section 3.6.6.53 of the Guide sets out the policy for determining whether the person is undertaking voluntary work. Section 3.6.6.53 says that to satisfy the requirements for mobility allowance, the voluntary work must be:
(a)likely to last for at least 3 months; and
(b)for a period of at least 32 hours every 4 weeks;
(c)provided willingly by a recipient without obligation or payment …, and
(d)performed 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 (examples are given in the Guide); and
(e)demonstrated by the organisation to have provided a service, product or benefit to the community; and
(f)approved by the Secretary of the Department or their delegate, …
4.28 Examples in the Guide are:
(a)charitable or welfare organisations including the Salvation Army, Meals on Wheels and Society of St Vincent de Paul;
(b)some churches and religious organisations that provide services and assistance to the community and that can be considered charitable or welfare organisations; and
(c)community organisations including Rotary, Apex and Lions.
4.29Within the Applicant’s mobility allowance review form dated 18 September 2014 (T5/33-40), the Applicant advised that he was engaged in voluntary work with “DPAW” and had been volunteering in the call centre for 16 hours in a 4 week period. The Applicant advised that he commenced volunteer work with “DPAW” on 1 August 2014. The Applicant’s evidence to the AAT1 was that “DPAW” referred to the Department of Parks and Wildlife but that his volunteering with the organisation had stopped. There is no evidence available which supports the Applicant’s contention that he was undertaking volunteer work at the relevant time. The Secretary contends that the Applicant was not undertaking volunteer work at 9 December 2014.
Mr Ellis again failed to provide any evidence that would allow this Tribunal to conclude that he was engaged in volunteer work. Although Mr Ellis contended before this Tribunal that he was engaged in volunteer work 10 hours every day, when asked to elaborate, he admitted that “he was, of course, exaggerating”. Mr Ellis indicated that he was active in the Lions Club (although he admitted that he was not “a contributing member”) and that he was also active in the RSPCA and in other types of disability “activism”. Unfortunately, he was unable to provide any concrete evidence to substantiate these claims. The Tribunal notes, in that regard, that political activism, while important and undoubtedly significant in Mr Ellis’s life, does not satisfy the requirements of the definition of “volunteer work” without further evidence of the sort outlined by the Secretary above. Mr Ellis provided no evidence in that regard.
In the circumstances, the Tribunal finds that Mr Ellis was not engaged in volunteer work for the purposes of the Social Security Act.
Vocational Rehabilitation Program
The Secretary provided no substantive analysis in relation to whether Mr Ellis was undertaking a vocational rehabilitation program, other than to say that Mr Ellis was not undertaking a vocational rehabilitation program at 9 December 2014.
The Tribunal notes that the Social Security Act defines vocational rehabilitation program as meaning a rehabilitation program (or follow-up program) under Part III of the Disability Services Act 1986 that provides a person with assistance to obtain or retain unsupported paid employment and that a vocational rehabilitation program may also include vocational training within the meaning of section 19.
Section 20 in Part III of the Disability Services Act 1986 provides as follows:
Provision of rehabilitation programs
(1)Subject to section 21, the Secretary may (on the Commonwealth's behalf) take measures, or enter into arrangements, to provide to persons in the target group such rehabilitation programs, and any follow-up programs, that the Secretary considers necessary or desirable.
(2)Without limiting the generality of subsection (1), the Secretary may, for the purposes of a rehabilitation program (including any follow-up program), provide, or arrange for the provision of the following:
(a)employment and vocational training, educational courses and programs, and mobility and other independent living training;
(b)diagnostic and assessment services, occupational therapy, physiotherapy, speech therapy, and counselling and social work services;
(c)accommodation, transportation and personal support services;
(d)prostheses and aids, including:
(i)     home and work-place modifications; and
(ii)     modifications to vehicles, appliances and equipment;
(e)the maintenance and repair of prostheses and aids;
(f)   books, tools of trade and other equipment and appliances;
(g)any other goods and services the Secretary considers necessary or desirable.
(3)In connection with the provision of rehabilitation programs (including follow-up programs), the Secretary may, on behalf of the Commonwealth:
(a) provide; or
(b) arrange for the provision of;
such buildings, plant, equipment, amenities, facilities and other things as the Secretary considers necessary or desirable, including, but not limited to, accommodation, transportation, and recreational, leisure and social amenities and facilities.
The Tribunal has reviewed all of the evidence before it and finds that as at 9 December 2014 Mr Ellis was not engaged in a vocational rehabilitation program for the purposes of the Social Security Act and the Disability Services Act.
CONCLUSION
The Tribunal has reviewed all of the evidence before it and is satisfied that as at 9 December 2014, Mr Ellis was suffering from a handicap as outlined in section 1035 of the Social Security Act and was unable to use public transport without substantial assistance due to his disability.
However, on the basis of the evidence before it, the Tribunal also finds that as at 9 December 2014, Mr Ellis:
a) Did not satisfy the “travel test” as outlined in section 1035 of the Social Security Act;
b) Was not engaged in “gainful employment” as outlined in section 1035 of the Social Security Act;
c) Was not engaged in “vocational training” as outlined in section 1035 of the Social Security Act;
d) Was not engaged in “volunteer work” as outlined in section 1035 of the Social Security Act; and
e) Was not undertaking a vocational rehabilitation program as outlined in section 1035 of the Social Security Act.
In the circumstances, Mr Ellis was not eligible for Mobility Allowance as of 9 December 2014.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
...............[sgd D Brodie]............................
Administrative Assistant
Dated 13 July 2016

Date of hearing 6 July 2016

Applicant Self-represented (by telephone)

Representative for the Respondent Mr A Burgess

Solicitors for the Respondent Sparke Helmore Lawyers

[2016] AATA 490

13 July 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Division	GENERAL DIVISION
File Number	2015/4518
Re	Troy Ellis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Deputy President Dr Christopher Kendall
Date	13 July 2016
Place	Perth

Date of hearing	6 July 2016
Applicant	Self-represented (by telephone)
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers