Fraser and Secretary, Department of Social Services (Social security)
[2025] ARTA 187
•17 January 2025
Fraser and Secretary, Department of Social Services (Social security) [2025] ARTA 187 (17 January 2025)
Applicant/s: Mr Fraser
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2024/H191391
Tribunal: General Member L Manville
Place:Brisbane
Date:17 January 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 17 January 2025 at 1:51pm
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – mobility allowance – eligibility – National Disability Insurance Scheme (NDIS) participant – NDIS transport allowance removed – decision under review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
This review concerns a decision of Services Australia- Centrelink (Centrelink) to reject an application for mobility allowance.
On 15 July 2024, Mr Fraser lodged a claim for mobility allowance. On 5 September 2024, an employee of Centrelink rejected his claim.
On 24 September 2024, Mr Fraser requested an internal review of the decision.
On 5 October 2024, an authorised review officer affirmed the decision to reject the claim on the basis that Mr Fraser was not eligible to be paid mobility allowance as he was a participant in the National Disability Insurance Scheme (NDIS).
Mr Fraser made an application to the Administrative Appeals Tribunal (the AAT) on 8 October 2024, seeking independent review of the Centrelink decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.
The matter was heard on 15 January 2025. Mr Fraser participated in the hearing via MS Teams video conference and gave affirmed evidence.
The Tribunal had regard to the evidence given by Mr Fraser at the hearing, the documents produced by Centrelink pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (in force at the time) numbered as pages 1 to 85 (the hearing papers), and materials lodged by Mr Fraser. Mr Fraser confirmed receipt of the hearing papers prior to the hearing.
ISSUE
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The issue which arises in this case is whether Mr Fraser was qualified to receive mobility allowance on the date of lodgement of his claim - that is, 15 July 2024.
CONSIDERATION
Under section 37 of the Administration Act, the Secretary must determine that a claim is granted if the person meets the qualification and payability requirements for the social security benefit.[1]
[1] Section 37 of the Act.
Mobility allowance provides support to persons to assist with transport costs for people with disabilities or illness, or who are unable to use public transport without substantial assistance. Section 1035 of the Act sets out the qualification criteria for mobility allowance.
Section 1038 of the Act provides that mobility allowance is not payable to a person if:
a) the person is an NDIS participant; and
b) an NDIS plan is in effect for the NDIS participant; and
c) the NDIS plan contains a statement specifying the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme (within the meaning of the National Disability Insurance Scheme Act 2013).
On 15 July 2024, Mr Fraser submitted a claim for mobility allowance. On the claim form, in answer to the question ‘Are you a participant in the National Disability Insurance Scheme?’, he responded ‘Yes’. The claim form includes a warning that a person responding ‘yes’ is not able to receive mobility allowance and reads “Do not complete this form”. Mr Fraser told the Tribunal that he proceeded to complete the claim form at a Centrelink office with the assistance of a Centrelink officer.
It is not in dispute that Mr Fraser is an NDIS participant and has an NDIS plan in effect. The Tribunal is therefore satisfied, and therefore finds, that Mr Fraser has been a NDIS participant since 1 January 2015. The Tribunal also finds that Mr Fraser has an NDIS plan for the period 14 December 2023 to 14 December 2025.[2]
[2] Folios 44 to 58.
Mr Fraser’s NDIS plan outlines in detail the core supports, capacity building supports, and capital supports funded under the plan. A description of the support, the frequency amount for each support, and the total budget attributable to each of the core supports is included in the plan. There is $0 support funding attributable to transport support under Mr Fraser’s NDIS plan.
Mr Fraser contends that the NDIS legislation and social security legislation are in conflict, and that paragraph 1038(c) should be read to mean that NDIS participants with an NDIS plan in effect are to be precluded from mobility allowance in circumstances where transport supports are not included in the NDIS plan. He contends that the legislation should be read in that manner because the NDIS legislation only permits use of the funding allocated to the supports identified and not for other purposes. He contends that a general reading of paragraph 1038(c) renders him, in his view, at a disadvantage as he cannot access financial support for transport.
In his evidence, Mr Fraser stated that when he originally became a NDIS participant in 2015, he was allocated transport supports. In time his skill levels increased to the point where he obtained a driver’s licence and a vehicle and, resultantly, the NDIS determined in later reviews of his NDIS plan that he did not require a transport allowance because he had access to the community. He told the Tribunal that the NDIS rejected a subsequent request for transport support and on review of that decision to reject that support, the review officer affirmed the decision not to include transport support in his NDIS plan. He told the Tribunal that he has not sought transport support since that rejection by the NDIS.
The intention of section 1038 is to be derived principally from the words of the legislation. There is nothing in the language of the section that supports the contention that it is to be confined in its application to circumstances where the ‘reasonable and necessary supports that will be funded’ include a particular category of support.
The purpose of section 1038 can be interpreted by use of extrinsic materials to interpret the ordinary meaning conveyed by its terms.[3] The explanatory memorandum for the National Disability Insurance Scheme Legislation Amendment Bill 2013 reads:
Item 14 inserts a new section 1038, which would provide that a mobility allowance is not payable to a person under the Social Security Act when that person is a participant in the NDIS and his or her participant’s plan contains a statement specifying the reasonable and necessary supports that will be funded under the NDIS.
The purpose of mobility allowance is to help with transport costs for people with disability who are unable to use public transport without substantial assistance. This assistance is tied to the person being engaged in gainful employment, vocational training, job search activities, voluntary work or a vocational rehabilitation program.
The purpose of this amendment is to ensure that NDIS participants do not receive double funding of mobility assistance through the NDIS and social security systems. Under the NDIS Act and NDIS Rules, a person will be able to continue to participate in the NDIS for a period after the person moves out of the launch site. This will be achieved through the residence requirements. The amendment would ensure that those people who continue to be participants and whose plan specifies reasonable and necessary supports would not receive additional support for mobility allowance.
A participant who does not receive funded reasonable and necessary supports would be able to apply for and be paid mobility allowance if he or she qualifies for the allowance and it is payable to them.
[3] Section 15AB of the Acts Interpretation Act 1901.
The Tribunal observes that the explanatory memorandum also does not support the contention that section 1038 was intended to concern ‘reasonable and necessary supports that will be funded’ in a particular category.
The Tribunal considered the decision in Russo and Secretary, Department of Social Services[4], in which Senior Member Tavoularis of the AAT considered the decision to cancel mobility allowance of an NDIS participant by both Centrelink and the NDIA. At paragraph 12 of the decision, Senior Member Tavoularis wrote:
I am comfortably satisfied that the Applicant meets the respective requirements qualifying her as a NDIS participant who is subject to a valid NDIS plan. While the Applicant may complain about not being paid MOB for public transport costs there is no compulsion on the Respondent (or anyone else) to pay those costs. This is because section 1038 (c) of the Act makes clear that there is no compulsion on the Respondent (or anyone else) to make a specific payment(s) towards NDIS participant’s transport costs. The only requirement pursuant to that section is that the subject ‘... NDIS plan contains a statement specifying the reasonable and necessary supports that will be funded....’
[4] [2024] AATA 2315.
While the Tribunal is not bound by previous decisions, in reaching the preferable decision one of the factors to be considered is consistency with comparable cases and decisions.
The Tribunal considered Mr Fraser’s NDIS plan and is satisfied that it contains a statement specifying the reasonable and necessary supports that will be funded under the plan. The Tribunal is satisfied, and so finds, that Mr Fraser is a NDIS participant, has a current NDIS plan in effect, and the plan contains a statement specifying the reasonable and necessary supports that will be funded under the NDIS. Resultantly, section 1038 of the Act precludes Mr Fraser from payability of mobility allowance.
The Tribunal therefore finds that the decision to reject Mr Fraser’s claim on 15 July 2024 for mobility allowance was the correct legal decision.
DECISION
The Tribunal affirms the decision under review.
| Date(s) of hearing: | Wednesday, 15 January 2025 |
| Representative for the Applicant: | Self-represented |
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