Jin and Secretary, Department of Employment and Workplace Relations

[2005] AATA 822

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 822

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/364

GENERAL ADMINISTRATIVE  DIVISION

Re:         YIN CHENG JIN

Applicant

And:         SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             28 July 2005

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – mobility allowance – volunteer work – vocational training – whether 32 hours in every four week period on a continuing basis

Social Security Act 1991 s 1035

REASONS FOR DECISION

28 July 2005  Regina Perton, Member

1.      This is an application by Mr Yin Cheng Jin (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 1 April 2005.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Employment and Workplace Relations (the respondent) dated 5 January 2005 to refuse a claim for mobility allowance made on 25 November 2004.

2.      At the hearing on 28 July 2005, the applicant represented himself.  Mr Michael Todd, a Centrelink advocate, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T24).

BACKGROUND

4.      The applicant was born in China on 25 October 1948 and has lived in Australia since 1989.  He has been receiving a Disability Support Pension since 17 August 2004.  On 25 November 2004, he applied for a mobility allowance on the basis that he was undertaking volunteer work and study.  In a letter dated 13 December 2004, the respondent requested that the applicant provide formal verification of his volunteer work.  On 5 January 2005, a delegate of the respondent refused the claim for mobility allowance because the applicant failed to provide the information relating to his volunteer work as requested.  On 24 January 2005, the delegate reconsidered the claim at the applicant’s request and maintained that the refusal of mobility allowance was appropriate given the lack of verification of the applicant’s voluntary work.    

5.      The applicant subsequently provided Centrelink with a statement from Ms Cigdem Yilan, Volunteer Coordinator/Social Worker from the North Richmond Community Health Centre (the Centre).  Ms Yilan indicated that the applicant started volunteering at the Centre on 9 November 2004 for two hours per week.  He tutored a group taking English lessons.  Ms Yilan also stated that the English class would reconvene under Mr Jin’s tutelage from 15 February 2005.  She stated that the applicant would be assisting for a two week period commencing on 27 January 2005 with a survey of the Centre’s clients.  She also stated that the applicant would soon be commencing a six week training course run by Adult Multicultural Education Services (AMES) for volunteers.  The original decision was reconsidered in light of the additional information.  On 3 February 2005, the decision was affirmed on the basis that the applicant was engaged in volunteer work for two hours per week, which was less than the 32 hours per four weeks prescribed in the Social Security Act 1991 (the Act). 

6.      On 9 February 2005, the applicant requested a review of the decision by an authorised review officer (ARO) and on 18 February 2005 the ARO affirmed the decision. The applicant applied for a review of the ARO decision by the SSAT on 3 March 2005 and the SSAT affirmed the decision to refuse a mobility allowance on 1 April 2005.  The applicant applied to this Tribunal on 3 May 2005 for review of the SSAT decision.

7.      The issue before the Tribunal is whether the applicant qualified for mobility allowance on 25 November 2004 or within 13 weeks of that date.

EVIDENCE

8.      The applicant told the Tribunal that at the time of applying for the mobility allowance he was receiving a disability support pension because of his back and shoulder conditions.  In relation to his volunteer work, he stated that he attends the Centre where he tutors non‑English speaking migrants for two hours per week.  He also assists elderly migrants at the Centre and people he meets in the street by completing forms for them and acting as an interpreter when necessary.

9.      The applicant stated that in or about March 2005 he commenced an English tutoring course through AMES.  He was required to attend classes twice a week for two and half hours.  He explained that he was undertaking some self‑education in art history and generally keeping himself up‑to‑date on what was happening in the world in order to improve his English.  He confirmed the contents of Ms Yilan’s letter as to the timing and nature of his work for the Centre.  The applicant indicated that during the two week survey for the Centre he worked for 6 hours a day, 5 days a week.  The applicant said that he commenced an Advanced Diploma course in translation at RMIT University  in July 2005 and is receiving a pensioner education supplement.

CONSIDERATION OF THE ISSUES

10. Section 1035 of the Act provides for qualification for mobility allowance and as far as is relevant in this case, the provision states as follows:

1035.(1)  A person is qualified for a mobility allowance if the person satisfies the travel test set out in subsection (2) and:

…

(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

…

(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.

11. Section 1035(2) of the Act provides for the travel test as follows:

1035.(2)  A person satisfies the travel test mentioned in subsection (1) if the person is required to travel to and from the person’s home for the purpose of undertaking:

(a)gainful employment; or

(b)vocational training; or

(c)job search activities; or

(d)voluntary work.

12.     The relevant terms are defined as follows:

1035.(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.

13. The applicant satisfies several of the requirements stated in s 1035(1) of the Act. He is a handicapped person; he is unable to use public transport without substantial assistance because of his physical disability; and he is an Australian resident. However, s 1035(1) of the Act also requires that the person is undertaking vocational training or voluntary work for at least 32 hours in every 4 weeks on a continuing basis. Section 1035(1)(g) of the Act allows for a combination of gainful employment, vocational training, job search activities or voluntary work, provided that it is for at least 32 hours in every 4 weeks. The Tribunal finds that the applicant was not employed at the time of lodgement of the claim; nor was he involved to any great degree in job search activities as a recipient of the Disability Support Pension. Therefore, the applicant seeks to rely on vocational training and voluntary work for the purpose of s 1035.

14. Section 1035 of the Act is very specific. It does not take into account the time spent with the people that the applicant assists on the street with their letters or communication. Similarly, vocational training does not include the self‑education that the applicant undertakes, as it is not part of a formal course. While the Tribunal accepts the applicant’s evidence that he was improving his English by reading, and that he would like to write more articles, this particular section of the Act does not allow the Tribunal to take into account those activities.

15. In relation to the applicant’s voluntary work, s 1035(3) of the Act provides a strict definition which involves volunteer work through an organisation. While the Tribunal accepts the applicant’s evidence that he assists individual members of the community, the definition of voluntary work in s1035(3) does not allow the Tribunal to take this into account for the purposes of mobility allowance. Therefore, the applicant’s volunteer work outside the Centre at the time of the claim does not satisfy the requirements of s 1035 of the Act.

16.     A further requirement that must be satisfied by the applicant is that the vocational training and/or the volunteer work must be for at least 32 hours in every 4 week period on a continuing basis.  The evidence indicates that the time that the claim was lodged on 25 November 2005, the applicant was doing voluntary work at the Centre for two hours a week.  The classes did not continue throughout the whole of the 13 weeks as there was a break for several weeks from late December 2004 to mid February 2005.  The applicant met the 32-hour requirement during the two weeks of the consumer survey during late January and early February 2005, but not on the ongoing basis required by the legislation. 

17.     The Tribunal notes that the applicant is now doing both voluntary work and study which may well meet the requisite hours.  However, the Tribunal can only take into account the date of lodgement and the 13 weeks following the date of lodgement i.e. from late November 2004 to late February 2005.

18.     For reasons given orally at the hearing, the Tribunal affirms the decision under review.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  28 July 2005
Date of decision:  28 July 2005
Advocate for applicant:                Nil‑ Self‑represented
Advocate for respondent:            Mr M. Todd, Centrelink