Inston and Secretary, Department of Social Services (Social services second review)
[2021] AATA 4601
•25 October 2021
Inston and Secretary, Department of Social Services (Social services second review) [2021] AATA 4601 (25 October 2021)
Division: GENERAL DIVISION
File Number(s): 2020/1479
Re:Rosemary Inston
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Cox
Date:25 October 2021
Place:Adelaide
The decision to cancel the Applicant’s mobility allowance on 27 February 2019 is set aside. The Applicant ceased to meet the requirements to be eligible for mobility allowance on 12 April 2019. The normal twelve-week grace period applies.
The decision that the Applicant met the requirements to be eligible for mobility
allowance from 24 July 2019 is affirmed...............[SGND]...................
Member D Cox
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for mobility allowance – whether correct decision to cancel and regrant payment– whether Applicant satisfies the travel test
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Guide to Social Security Law – 3.6.6.100 – Termination of MOB
REASONS FOR DECISION
Member Cox
25 October 2021
BACKGROUND
The Applicant had been in receipt of mobility allowance since 23 February 2015.
On 4 December 2018, the Applicant ceased voluntary work at the Whalers Peninsula Community Association which had qualified her for payment of mobility allowance. On that day she was sent a notice advising her that there was a twelve-week grace period which would end on 27 February 2019, during which time she would continue to receive mobility allowance. To receive it after that date she would “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.[1]”
[1] Respondent’s Statement of Facts, Issues and Contentions, Annexure 1.
On 27 December 2018, the Applicant began volunteering at Middleton Arts and Crafts Association for at least five hours per month[2].
[2] Exhibit A, Tribunal Documents, T9, page 78.
On 9 January 2019, the Applicant made a claim for pensioner education supplement to undertake a Certificate lll in Financial Services at TAFE SA over the 2019 academic year. The claim said she would study on a part-time basis, undertaking between twenty-five and forty-nine per cent of a full-time study load, a total of eight hours per week of formal coursework or lectures. She would be studying remotely and engaged in flexible learning through a self-paced course.
The Applicant made two payments of fees to TAFE SA, the first on 9 January 2019 of $52.50 and the second on 10 January 2019 of $31.50[3].
[3] Ibid, T7, page 48 and T9, page 55.
On 10 January 2019, the Applicant completed enrolment at TAFE SA in a Certificate lll in Financial Services to undertake four subjects with a total of eighty credit and billing hours. The enrolment was for Semester 1 which began on 11 February 2019 and ended on
5 July 2019.The Applicant subsequently enrolled in a further Semester 1 subject for the Certificate lll in Financial Services, which carried a further thirty-five credit and billing hours.
On 27 February 2019, the Applicant’s mobility allowance was cancelled and she was sent a notice informing her of that[4].
[4] Respondent’s Statement of Facts, Issues and Contentions, Annexure 2.
On 4 March 2019, the Applicant queried the cancellation of her mobility allowance. She was advised on 28 March 2019 and 10 April 2019 that there was no verification of her study hours.
On 24 April 2019, TAFE SA sent an email to the Applicant providing her academic results for Semester 1 stating that as the completion date had passed for the first four subjects listed in the table in paragraph 11, and she was unable to complete the assessments, she would be “resulted with a Fail” for each of those subjects.
On 28 June 2019, TAFE SA provided a table summarising the Applicant’s enrolments in Semester 1 of 2019, together with the hours, start and finish date for each subject, as
follows[5]:[5] Ibid, T12, page 58.
CRN Code Unit Hours Start date Finish date 9258 FABNF Process customer transactions 50 14/1/2019 16/3/2019 9261 FABMZ Prepare match and process receipts 10 14/1/2019 16/3/2019 9265 FABPL Process payment documentation 10 14/1/2019 16/3/2019 9267 FABPM Administer financial accounts 10 14/1/2019 16/3/2019 9270 FABPE Produce Spreadsheets 35 15/5/2019 17/6/2019 This information was provided to Centrelink on 1 July 2019.
On 24 July 2019, the Applicant commenced a new course of face to face study at TAFE SA.
On 26 July 2019, the Applicant made a new claim for mobility allowance, which was granted from 24 July 2019[6].
[6] Respondent’s Statement of Facts, Issues and Contentions, Annexure 3.
On 15 August 2019, the Applicant requested a review of the decision to cancel her mobility allowance from 27 February 2019[7].
[7] Exhibit A, Tribunal Documents, T22, page 103.
On 27 September 2019, an authorised review officer (ARO) conducted a review and made
a decision to affirm the decision of 27 February 2019 to cancel the Applicant’s mobility
allowance. The ARO’s notes show that there were two reasons for affirming the decision:
(1) there was no requirement from TAFE SA for her to travel for study, although she had
said that she had done so to use the library; and
(2) there was no evidence that she met the qualifications for mobility allowance in the
period 27 February 2019 to 24 July 2019.The ARO also affirmed the decision of 26 July 2019 to grant mobility allowance from 24 July 2019 and not from an earlier date.
On 29 November 2019, the Applicant made an application for review of that decision by the Tribunal (AAT1).
On 3 February 2020, the AAT1 reviewed and affirmed the decision. The AAT1 found that the Applicant’s average weekly study load was 5.2 hours, calculated by dividing the study hours set out in the table in paragraph 11 (115 hours) by 22 weeks (presumably the date of enrolment to the end of Semester 1). Together with the Applicant’s voluntary work for the Middleton Arts and Crafts Association, this was insufficient to achieve the 32 hours of monthly activity required for the Applicant to be eligible for mobility allowance.
On 13 March 2020, the Applicant requested a further review by the General Division of the Tribunal (AAT2).
LEGAL REQUIREMENTS TO RECEIVE MOBILITY ALLOWANCE
The relevant legislative requirements for the Applicant to receive mobility allowance are set out in section 1035 of the Social Security Act 1991 (the Act). They are as follows:
1035 Qualification for mobility allowance (rate specified in subsection 1044(1))(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:
(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;
(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 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.There is no dispute that in the first semester of 2019 the Applicant met the requirements of paragraphs 1035(1)(g)(i), (ii) and (iv) of the Act, or that her relevant activities during that period met the definitions of vocational training and voluntary work set out in subsection 1035(3) of the Act.
The matters in contention are whether the Applicant met the requirements of paragraph 1035(1)(g)(iii) to undertake a combination of vocational training and voluntary work “for at least 32 hours in every 4 weeks on a continuing basis” and whether she was required to travel to and from her home for those purposes, in accordance with subsection 1035(2) of the Act.
EVIDENCE RELEVANT TO THE MATTERS IN DISPUTE
The TAFE SA email of 12 April 2019[8] sets out the start date of the first semester as 11 February 2019 and its end date as 5 July 2019.
[8] Ibid, T10, page 56.
The TAFE SA letter of 28 June 2019[9] sets out the Applicant’s enrolments in the first semester of 2019, see the table in paragraph 11.
[9] Ibid, T12, page 58.
TAFE SA receipts dated 9 January 2019[10] and 10 January 2019[11] provide evidence of the Applicant’s early enrolment activity.
[10] Ibid, T7, page 48.
[11] Ibid, T9, page 55.
Emails of 4 February 2019 and 5 February 2019[12] provided by the Applicant after the hearing between herself and Karen Hennessy, Teaching Assistant at TAFE SA, provide evidence that her course materials were not available until the start of the first semester and not her enrolment date.
[12] Exhibit B, Bundle of communications between the Applicant and TAFE SA from February to June 2019.
The Applicant provided emails of 12 April 2019 after the hearing from herself to Karen Hennessey and a reply the same day[13] feedback on the course work she had provided. This is evidence she was engaged in her course up to that date.
[13] Ibid.
A further email of the same date[14] from the Applicant to Karen Hennessy advised she would not be able to complete the work again.
[14] Ibid.
An email of 24 April 2019[15] from Karen Hennessy to the Applicant advised that as the completion date for the four courses: Process customer transactions; Prepare match and process receipts; Process payment documentation; and Administer financial accounts, had passed and she had been unable to complete them she would be graded with a fail.
[15] Ibid.
A letter dated 28 June 2019 from TAFE SA[16] providing the table included at paragraph 11 summarising the Applicant’s enrolments in Semester 1 of 2019, together with the hours, start and finish date for each subject.
[16] Exhibit A, Tribunal Documents, T12, page 58.
A letter dated 10 December 2019 from the President of the Middleton Arts & Crafts Association Inc which said[17]:
[17] Ibid, T19, page 78.
This is to confirm that Rose Inston (Rosemary), travels to Middleton Arts and Crafts at 35 Main Road, Middleton, SA, at least once each month to work as a volunteer serving customers for 5 (five) hours a day.
Rose engaged in the said volunteer work for five hours each day on the following days:December 27 2018
January 23 2019
February 21 2019
March 14 2019
March 28 2019
May 2 2019
May 10 2019
June 6 2019
July 22 2019Rose continues to travel to Middleton for volunteer work at least once or sometimes twice each month.
FINDINGS OF FACT
From the evidence set out in paragraphs 23 to 31 the Tribunal made findings of fact as set out in paragraphs 33 to 38.
The Applicant had ceased eligibility for mobility allowance on 4 December 2018 and was in a 12 week grace period ending on 27 February 2019 during which time she commenced 5 hours voluntary work per month at the Middleton Arts & Crafts Association Inc and enrolled in four TAFE courses with a combined workload of 80 hours, normally to be completed by 16 March 2019.
The Applicant was required to travel to the Middleton Arts & Crafts Association Inc from her home and return on one day each month to undertake her voluntary work.
The particular TAFE courses the Applicant enrolled in were online and the material for them was not available to her until about 11 February 2019, the start date for the first semester. To meet the course end date the Applicant would have had to complete 80 hours of work within 29 days.
The course was provided online for participants to learn at their own pace. The Applicant was still working on those course units up to 12 April 2019, a further 27 days.
On 12 April 2019, following feedback on her coursework, the Applicant advised her TAFE Teaching Assistant she would be unable to complete the work again.
The Applicant was advised on 24 April 2019 that she had been graded with a fail.
APPLICATION OF THE LAW IN THIS CASE
The ARO determined that the Applicant was not eligible for mobility allowance in the first semester of 2019 because she was not required to travel for her online course.
The ARO also deduced, presumably from the Applicant’s application for pensioner education supplement, that she was only studying for 5 hours per week. The applicant had ticked the box 25-49% of full-time study load and the ARO applied the lower end of that range to a full-time study load of 20 hours per week.
The Tribunal notes that the Applicant had stated clearly on her claim for pensioner education supplement that she would be studying for 8 hours per week, which is toward the upper end of the range of the percentage of full-time study load that she had indicated.
The AAT1 determined that the Applicant’s study load was insufficient by averaging the hours of all subjects for which the Applicant enrolled in the first semester of 2019 over the period from the date of her enrolment to the semester end date, a 22 week period. This calculation included the fifth course referred to in the table in paragraph 11, which commenced on 15 May 2019 and ended on 17 June 2019. The average weekly workload by that measure was 5.2 hours.
This extended period was not possible, as paragraph 35 shows, because the Applicant could not get access to the course materials until about 11 February 2019 when the semester started.
The Tribunal finds, for the purpose of considering whether the cancellation of the Applicant’s mobility allowance on 27 February 2019 was correct, that she had already commenced four courses on 11 February 2019 with an end date of 16 March 2019, involving a workload of 80 hours over 29 days. Therefore, the decision to cancel the Applicant’s mobility allowance on 27 February 2019 was not correct.
The Tribunal finds, for the purpose of considering when the Applicant ceased to be meeting the requirements for payment of mobility allowance, she ceased working on those learn at your own pace courses 27 days later on 12 April 2019.
The relevant average workload calculation over the total of 56 days she was engaged in that study program was 40 hours per month. This is slightly in excess of the 8 hours per week the Applicant had indicated on her pensioner education supplement claim form.
There is no evidence before the Tribunal that the Applicant did not undertake this study workload. The fact that the Applicant failed the courses is not a relevant consideration because there is no satisfactory academic progress test attached to eligibility for mobility allowance.
The Tribunal finds that the Applicant also undertook 5 hours per month of voluntary work and that she was required to travel to and from her home for that purpose, satisfying the travel test set out in subsections 1035(1) and 1035(2) of the Act.
The Tribunal finds that the Applicant met the requirement to be engaged for at least 32 hours in every 4 weeks on a continuing basis in vocational training and voluntary work over the period 11 February 2019 to 12 April 2019 and was therefore eligible to be paid mobility allowance.
The Tribunal finds that the Applicant did not meet the requirements to be eligible for mobility allowance from 13 April 2019, however the normal 12-week grace period applies[18].
[18] See Social Security Guide 3.6.6.100 – Termination of MOB.
For completeness, the Tribunal affirms the decision that the Applicant met the requirement to be eligible for mobility allowance from 24 July 2019.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for the decision herein of Member D Cox.
........................[SGND]................................
Legal Administrative Assistant
Dated: 25 October 2021
Date of hearing:
8 December 2020
Applicant:
Self-Represented
Advocate for the Respondent: Mr Christian Visser, Services Australia
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