Joshua Treloar and Secretary, Department of Social Services
[2015] AATA 94
•23 February 2015
[2015] AATA 94
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3918
Re
Joshua Treloar
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert
MemberDate 23 February 2015 Place Melbourne The Tribunal affirms the decision under review
[sgd]........................................................................
Mr Conrad Ermert
Social Services - Mobility allowance - voluntary work - 32 hours in every four weeks - ability to use public transport without substantial assistance - decision affirmed
LEGISLATION
Social Security Act 1991 s.1035(1)
REASONS FOR DECISION
Mr Conrad Ermert
MemberINTRODUCTION
Mr Joshua Treloar, the Applicant, has received a disability support pension (DSP) since May 2004. Mr Treloar is a volunteer driver for Meals on Wheels, spending about five hours a week on this activity. In addition, he helps his father by driving his parents to Ballarat and doing odd jobs for them. This amounts to an extra three hours per week of work.
On 24 March 2014 Mr Treloar completed an application for mobility allowance. On 2 April 2014 a Centrelink officer notified him of the decision to reject his application. Centrelink is the service provider for the Department of Social Services, the Respondent.
On 4 June 2014 a Centrelink Authorised Review Officer (ARO) affirmed the decision on the basis that Mr Treloar was undertaking an approved activity for only 20 hours over a four week period, which was less than the required 32 hours. In addition, Mr Treloar’s medical practitioner indicated that Mr Treloar did not need substantial assistance to use public transport.
Mr Treloar sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 18 July 2014 the SSAT affirmed the decision.
This matter is an application for review of the SSAT decision.
THE HEARING
I conducted the hearing by telephone. Mr Treloar represented himself and gave evidence under affirmation. Mr Henderson, a departmental lawyer, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents and Supplementary T-documents). For Mr Treloar I took into evidence a statement by Mr David Treloar, his father, dated 17 October 2014 (Exhibit A1). For the Respondent I had before me the Secretary’s Statement of Facts and Contentions dated 19 November 2014. I took into evidence the report of Mr Roger Warne, dated 16 November 2014 (Supplementary T-document ST1) and the Medical Certificate by Dr Andrew Cunningham, dated 5 July 2014 (ST2).
LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act).
Section 1035 of the Act provides relevantly:
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:
…
(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;
…
(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:
… or
(d)voluntary work.
(3)In this section:
…
voluntary work means work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations.
THE ISSUES
In this case the Respondent accepts that Mr Treloar is a handicapped person and satisfies the provisions of section 1035(1)(f)(i) of the Act. Additionally, the Respondent accepts that Mr Treloar’s work for Meals on Wheels satisfies the requirements for voluntary work prescribed in section 1035(3) of the Act.
The issues I must determine are:
·whether Mr Treloar is engaged in voluntary work for at least 32 hours in every four weeks; and, if so
·whether he has an inability to use public transport without substantial assistance; and, if so
·whether his inability to use public transport is due to his physical or mental disability.
I will consider first the issue of the amount of voluntary work undertaken by Mr Treloar. If necessary, I will then consider whether he requires substantial assistance to use public transport.
TRIBUNAL CONSIDERATION
In his oral evidence Mr Treloar recounted his unsuccessful attempts to obtain a copy of his work roster from Meals on Wheels. In answer to questions from Mr Henderson, Mr Treloar agreed that he told the SSAT that his voluntary work for Meals on Wheels had amounted to an average of five hours a week over the previous three month period. He said the hours can vary because of delays in making deliveries on some days. He agreed, however, that on average, he works about five hours a week for Meals on Wheels.
When asked about the work he does for his parents, Mr Treloar said he helps out by driving them to Ballarat each week and helping his father “to fix stuff”. He said carrying out these tasks amounts to three hours per week. Mr Treloar said that only by including the jobs he does for his parents can he fulfil the requirement for eight hours of voluntary work a week. He includes the work for his parents in his claim “just to make up the time”.
In his submissions Mr Treloar said that he needs the mobility allowance as he cannot meet his expenses. He also said that he cannot do the required eight hours of voluntary work per week.
In his submissions Mr Henderson conceded that Mr Treloar’s work for Meals on Wheels meets the requirements of section 1035(3) of the Act. He submitted that Mr Treloar’s evidence was that he performed this work for only five hours per week. Mr Henderson submitted that Mr Treloar’s driving his parents around does not meet the requirements of the Act. He contended that Mr Treloar’s voluntary work therefore amounts to just five hours a week or 20 hours over a four week period, a total that does not meet the requirements of the Act.
I accept Mr Treloar’s repeated evidence that he works for Meals on Wheels for five hours a week. In considering his work for his parents I note the requirements of section 1035(3) of the Act, which require the voluntary work to be for charitable, welfare or community organisations. I do not accept that work for his parents constitutes work for charitable, welfare or community organisations. As a consequence, I do not accept that the additional three hours per week claimed by Mr Treloar constitute voluntary work according to the Act.
From the evidence I find that over a four week period Mr Treloar performs only 20 hours of work that is voluntary work according to the Act. This is not sufficient to satisfy the requirement of section 1035(1)(f) of the Act, which specifies a minimum of 32 hours of voluntary work over a four week period. Accordingly, Mr Treloar does not satisfy section 1035(1)(f)(ii)(c) of the Act.
The components of section 1035(1)(f) of the Act are cumulative in nature – that is each component must be satisfied. As Mr Treloar does not satisfy section 1035(1)(f)(ii) of the Act, he cannot meet the requirements of section 1035(1)(f). Accordingly, there is no need for me to consider the other sections of the Act relating to his ability or otherwise to use public transport without assistance.
The other components of section 1035(1) do not apply to Mr Treloar’s circumstances. As Mr Treloar does not satisfy each component of section 1035(1) he is not qualified for mobility allowance and I find accordingly.
I commend Mr Treloar on the voluntary work he is undertaking and the assistance that he provides to his parents. I reiterate Mr Henderson’s advice, that should Mr Treloar increase his voluntary work to 32 hours over a four week period he is at liberty to submit a new application for mobility allowance.
DECISION
I affirm the decision under review, which means that Mr Treloar’s application is not successful.
I certify that the preceding 22 (twenty‑two) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member [sgd]........................................................................
Administrative Assistant
Dated 23 February 2015
Date of hearing 27 January 2015 Applicant In person Advocate for the Respondent Mr Henderson, Department of Human Services
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