Maklenovich and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 148
•7 March 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3599
General Administrative Division )
Re: George Maklenovich
Applicant
And: Secretary, Department of Education, Employment and Workplace Relations
RespondentDIRECTION
TRIBUNAL: Ms N Isenberg, Senior Member
DATE: 8 March 2011
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- Change the application number from 2010/1113 to 2010/3599.
.....................[SGD].................................
Ms N Isenberg
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 148
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3599
GENERAL ADMINISTRATIVE DIVISION )
ReGEORGE MAKLENOVICH
Applicant
AndSECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date7 March 2011
PlaceSydney
Decision The decision under review is set aside and in substitution it is decided that Mr Maklenovich was qualified for mobility allowance by 11 June 2010 and that he be paid for the period from 3 June to 24 August 2010
...................[SGD]...........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – Allowances – s 1035(1)(g) – disability support pension – mobility allowance – travel test – unable to use public transport – continuing basis – hours test
RELEVANT ACT/S:
Social Security Act 1991 (Cth) ss 1035, 1035(1)(b), 1035(1)(g)
Social Security Administration Act (Cth) 1999 Schedule 2, clause 4
CITATIONS
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Holroyd and Secretary, Department of Education, Employment and Workplace Relations (2010) 117 ALD 209
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Omo and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 440
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416
REASONS FOR DECISION
7 March 2011
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
1. The Applicant, George Maklenovich, seeks review of the decision of the Social Security Appeals Tribunal (SSAT) dated 27 July 2010 affirming a decision by Centrelink to reject his claim for mobility allowance.
BACKGROUND
2. Mr Maklenovich, now aged 53, has received disability support pension since 1 May 2001.
3. He lodged a claim for mobility allowance on 12 March 2010. His claim was accompanied by a medical report from his treating doctor, Dr O’Halloran, who indicated that Mr Maklenovich had moderate difficulty “standing in bus, train, etc” and that he had moderately limited “social skills eg ability to relate to bus drivers or public”. Dr O’Halloran also wrote that he had “difficulty in attending education activities as lack of available transport”.
4. Centrelink rejected the claim for mobility allowance on 7 April 2010. That decision was affirmed on internal review and by the SSAT.
LEGISLATION
5. Section 1035 of the Social Security Act 1991 (the Act) deals with qualification for mobility allowance. Section 1035(1) in part provides:
(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 …
(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
6. Section 1035(2) outlines the travel test:
(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.
7. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (the SSA Act) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mr Maklenovich was entitled to mobility allowance by 11 June 2010.
ISSUE BEFORE THE TRIBUNAL
8. Was Mr Maklenovich qualified to receive mobility allowance by 11 June 2010? This entails consideration of whether:
·Mr Maklenovich was unable to use public transport without substantial assistance, either permanently or for an extended period; and
·Mr Maklenovich was undertaking a combination of vocational training and voluntary work for at least 32 hours in every 4 weeks on a continuing basis.
CONSIDERATION
Was Mr Maklenovich unable to use public transport without substantial assistance, either permanently or for an extended period?
9. Mr Maklenovich gave evidence that he experiences panic attacks. He said that while some stressors are readily identifiable, such as stress, crowding and heat, others are not. He has undertaken some cognitive behavioural therapy and avoids things that he knows may precipitate an attack.
10. He said that bus travel can cause unexpected panic attacks and estimated that that might occur eight trips out of 10. He would unexpectedly feel hot and dizzy and feel that he was about to pass out. In order to use a bus he must, in addition to his daily dose of Zoloft (a medication to treat depression, obsessive-compulsive disorder and panic and anxiety disorders), double his daily dose of Xanex (a medication used to treat anxiety and panic disorders). Because he cannot be sure if the dose will suffice, he also takes Seroquel (a medication to treat the symptoms of schizophrenia and bipolar disorder). As a result he feels very groggy which makes it difficult for him to function for the next half day or so, and thereby is unable to comprehend the lecture he attends at TAFE. If he does not take the medication, and has a panic attack he will have to get off the bus, and then immediately catch a taxi home, thereby missing the TAFE lecture or other appointment. He can only satisfactorily attend TAFE if he can get a lift from a neighbour or catch a taxi.
11. There did not appear to be much dispute about the generally debilitating nature of Mr Maklenovich’s condition. In a job capacity assessment report undertaken by Centrelink dated 17 July 2007 it was reported that:
Due to ingrained nature of psychological condition the client is unable to deal with any stress, pressure or conflict. He also remains socially withdrawn and suffers fluctuating moods. Independently the client will not increase work capacity.
12. Mr Maklenovich said he did not tell the SSAT that he did not experience problems with train travel because trains are generally air-conditioned. He said that his problems are the same as for bus travel, and stressed that his panic attacks are unpredictable. His evidence about the unpredictability of his panic attacks was unchallenged. Logically, I accept that the random nature of the attacks are equally likely to apply to either form of public transport.
13. Mr Maklenovich said in cross-examination that it would be helpful to have “assistance” during bus travel if he feels shaky and that he might pass out. While “substantial assistance” in s 1035 may anticipate some physical aid or assistance from another person, I accept that the term is sufficiently broad to include the use of medication. I accept that Mr Maklenovich is unable to use public transport without substantial assistance in that he requires significant doses of medication, according to his evidence, to travel by public transport.
14. As to whether this is likely to continue either permanently or for an extended period, I observe that Centrelink’s job capacity assessor regarded Mr Maklenovich’s disability as permanent. Mr Maklenovich has been on disability support pension for about 10 years on the basis of his schizophrenia. His general practitioner does not suggest it is likely to improve.
15. I therefore find that Mr Maklenovich is permanently unable to use public transport without substantial assistance.
Was Mr Maklenovich undertaking a combination of vocational training and voluntary work for at least 32 hours in every Four weeks (‘the hours test’) on a continuing basis?
16. Mr Maklenovich contended that he undertook a combination of voluntary work and vocational training for a period of at least 32 hours per four weeks.
17. There was no dispute that Mr Maklenovich undertook studies in a Certificate IV of Small Business Management at Wollongong West TAFE from 8 February 2010 to 6 December 2010. Centrelink, who accepted that this was vocational training, was of the understanding that he attended 24 hours every four weeks. Mr Maklenovich provided a copy of the course program which showed the courses he studied were of 7.5 hours per week in duration, that is, a total of 30 hours in every four weeks.
18. Mr Maklenovich also said that he studied a TAFE course, conducted in association with the NSW Department of Housing entitled ‘Managing Your Money’. The course was run on Thursdays between 3 and 24 June 2010 for 2 hours. Centrelink contended that that the ‘Managing Your Money’ course had “not been assessed for mobility allowance purposes” in accordance with the Guide to Social Security Law (the Guide) which, at 3.6.6.50, explains that vocational training assists the recipient to find gainful employment or to carry on a profession, trade or business. As to what may amount to a vocational training course, the Guide provides a wide description of activities. The Guide provides that if there are reservations about the vocational aspect of a training course clarification should be sought with the course administrator. There was no evidence that Centrelink had sought such clarification and instead had dismissed it out of hand.
19. I accept that the course related to vocational training. The course outline refers to: “budgeting and saving, reducing bills and expenses, finding the ‘best deal’, understanding credit, managing debt, avoiding scams”. These skills are applicable to business as well as personal financial matters. Further, I accept that the course consisted of a total of 8 hours in four weeks.
20. Mr Maklenovich also did voluntary work at the Salvation Army. He contended that he worked there from 16 June 2010 to 24 August 2010 for about two to three hours per day, once or twice a week. Centrelink sought and obtained information from the Salvation Army store manager, to the effect that Mr Maklenovich only worked from 17 June 2010 to 21 July 2010 and that he attended “for a few hours here and there” and that he did not sign the volunteer book. Mr Maklenovich challenged this account of his attendance in a letter dated 4 December 2010. He wrote that the store manager had been absent for some weeks while he was there due to a car accident. He said that initially the arrangement was that he work Tuesday and Thursday 11.30 am to 4.30 pm but because he was doing the money management course, it was agreed he work those hours on Wednesday and Fridays instead. He later reduced his hours to four per week. He said he may have missed some scheduled days because he was ill. He also wrote that he had never been asked to sign a ‘volunteer book’, and reported that he had been informed that the Salvation Army officially had no record of him volunteering at all. Because there is no dispute that he did volunteer, this tends to support his account that he was not required to sign the volunteer book. It is also leads me to a view that he may have worked there longer than was officially recorded, and I prefer his account to that of the Salvation Army manager.
21. Centrelink contends however that, in any event, even if Mr Maklenovich worked the hours claimed, the activity had not been approved by Centrelink in accordance with paragraph 3.6.6.53 of the Guide. The Guide does not specify that the approval needs to be in advance of the work being undertaken. Again, there is no evidence that Centrelink took any steps to approve the work. In many matters before the Tribunal working with charities has been regarded by Centrelink as an appropriate activity (see Omo and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 440; Holroyd and Secretary, Department of Education, Employment and Workplace Relations (2010) 117 ALD 209).
22. Even if that were not the case, and the Guide could be said to require the activity to be approved in advance, I note that I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) if there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 at 416-417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. This case, in my view, is one where application of the Guide does not necessarily lead to a fair result, in circumstances where Centrelink has, even now, taken no steps to consider whether the activities were appropriate or not.
23. I accept that Mr Maklenovich worked at the Salvation Army from 17 June 2010 to 21 July 2010 for an average of four hours per week.
24. Therefore I find that Mr Maklenovich undertook a combination of vocational training and voluntary work as follows:
·from 8 February to 2 June 2010 30 hours in every four weeks
·from 3 to 15 June 2010 a total of 38 hours in four weeks
·from 16 June to 24 August 2010 46 hours in four weeks
·from 25 August to 6 December 2010 30 hours in every four weeks
25. Having come to that view, the only periods when Mr Maklenovich satisfied the hours test at s 1035(1)(g)(iii)(C) of the Act was from 3 June to 24 August 2010.
26. As to whether Mr Maklenovich was undertaking a combination of vocational training and voluntary work for at least 32 hours in every four weeks on a continuing basis, I observe that the Centrelink advocate was unable to point to any authority as to what was required to satisfy this legislative requirement, other than the paragraph 3.6.6.55 of the Guide which provides the assessment of vocational training and voluntary work for mobility allowance must be likely to last for at least three months. There is, however, no legislative basis for this requirement, only that the vocational training and voluntary work be on a “continuing basis”. The second reading and explanatory memorandum of the Social Security Bill 1990 are silent as to “continuing basis”, as are the second reading and explanatory memorandum Family and Community Service Legislation Amendment Bill 2002. It seems to me that this provision is likely to have been inserted so as to exclude from benefit a person who, for a single 4 week period, undertakes 32 hours of vocational training and/or voluntary work.
27. In this instance, Mr Maklenovich satisfied the hours test from 3 June to 24 August 2010 on a continuing basis.
28. Therefore I find that section 1035(1)(g)(iii) of the Act was satisfied within 13 weeks of Mr Maklenovich’s claim, because Mr Maklenovich undertook a combination of vocational training and voluntary work for 32 hours of every four weeks on a continuing basis. He is entitled to be paid mobility allowance from 3 June to 24 August 2010.
DECISION
29. The decision under review is set aside and in substitution it is decided that Mr Maklenovich was qualified for mobility allowance by 11 June 2010 and that he be paid for the period from 3 June to 24 August 2010.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ..............................[SGD].......................................................
N. Olson, AssociateDate/s of Hearing 23 February 2011
Date of Decision 7 March 2011
Solicitor for the Applicant Unrepresented
Solicitor for the Respondent Ms B. Silaji, Centrelink Advocacy Branch
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