MARY ANN KOUTELAS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 501

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 501

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1009

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARY ANN KOUTELAS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member K Bean

Date6 July 2010

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – Allowances – Mobility Allowance – Whether applicant qualified to receive the allowance – Applicant undertaking rehabilitation to assist with recovery from illness and surgery – Applicant not undertaking vocational training or vocational rehabilitation program as defined – Applicant does not qualify to receive allowance – Decision under review affirmed

Social Security Act 1991 ss 19, 1035

Re Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179

REASONS FOR DECISION

6 July 2010   Senior Member K Bean  

1.      Ms Mary Koutelas (the applicant) is currently in receipt of Disability Support Pension (DSP) which was granted to her as a result of an acquired brain injury suffered by her in 2008, following surgery to remove a cancer from her brain.  Following that surgery, she also sustained right sided facial palsy with severe dizziness and fatigue.  Her mobility and balance were significantly affected by her dizziness and she has required extensive rehabilitation to improve her mobility, balance and strength[1]. 

[1] T10/46

2.      Following her discharge from hospital, it was necessary for her to travel in order to obtain the rehabilitation which she required and on 29 July 2008, Ms Koutelas lodged a claim with Centrelink for Mobility Allowance, to assist her in meeting these expenses.  On 22 August 2008, Centrelink rejected her claim and on 9 September 2008, that decision was reconsidered and affirmed.  On 10 October 2008, an Authorised Review Officer (ARO) also affirmed the decision on the basis that Ms Koutelas did not satisfy the criteria for payment of Mobility Allowance. 

3.      On 1 December 2008, Ms Koutelas applied to the Social Security Appeals Tribunal (the SSAT) for review of that decision and on 10 February 2009 the SSAT also affirmed the decision under review, concluding that Ms Koutelas did not satisfy the applicable legislative criteria.

4.      On 11 March 2009, Ms Koutelas applied to this Tribunal for review of that decision, giving rise to these proceedings.

legislation

5. Section 1035 of the Social Security Act 1991 (the SS Act) sets out the criteria for qualification for Mobility Allowance and relevantly provides 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:

…

(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

(h)all of the following apply:

(i)the person is a handicapped person;

(ii)the person is undertaking a vocational rehabilitation program;

(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;

(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 rehabilitation program means a rehabilitation program (or follow-up program) under Part III of the Disability Services Act 1986 that provides a person with assistance to obtain or retain unsupported paid employment.

Note:A vocational rehabilitation program may include vocational training within the meaning of section 19.

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.”

6. Section 19 of the SS Act also contains the following definition of “vocational training”:

“vocational training includes training for a profession or occupation and, where used in Part 2.21 (Mobility allowance), also includes training known as independent living skills or life skills training.”

issue

7. The issue for determination by the Tribunal is whether Ms Koutelas satisfies the terms of s 1035 of the SS Act such that she qualifies for Mobility Allowance.

evidence

8.      At the hearing, Ms Koutelas stated that, prior to undergoing surgery in 2008, she had been undertaking an accounting course at TAFE and she would like to resume this once she is well enough to do so.  However, she is not currently enrolled as she is not well enough at present to undertake this study.  She is also currently blind in one eye and is awaiting a further operation to hopefully restore sight to that eye. 

9.      She currently attends at a “hydro pool” at Hindmarsh once per week for general strengthening.  She also attends The Pines for physiotherapy for 45 minutes once per week and for training in using a walking stick for 45 minutes on another day of the week.  If she attends each of these sessions, all of which she requires and have been recommended for her, she is left with approximately a $100 shortfall each fortnight as her DSP, which is currently $690 per fortnight, is not sufficient to cover her other expenses, including food, and the travel expenses associated with undertaking her rehabilitation activities.  She said that she has reluctantly begun to cancel treatments as she cannot afford to attend all of the sessions and buy food as well.  She explained that although her son or daughter would sometimes be able to take her to the required sessions, they were not always able to do so.

10.     In a supplementary submission filed with the Tribunal on 13 May 2010, Ms Koutelas also stated:

“I am going to be forced to stop all my therapy (hydro pool, balancing classes and physiotherapy) and I have had no speech therapy, I have to do it on my own, without any help from a speech therapist.  I cannot afford the fees or the cab fares, the financial stress that all this is causing me is not very good for my health.  My progress will just have to come to a standstill.  I have to accept the fact that I will not be able to finish my course and will never be able to work again in the condition that I am.”

consideration

11.     It is clear on the material before me that the treatment Ms Koutelas is seeking to obtain is treatment which she reasonably requires and which she is likely to benefit from, and the respondent did not contend to the contrary.  The issue however is whether she qualifies for payment of Mobility Allowance. 

12. In order to qualify for Mobility Allowance, s 1035 of the SS Act provides that a person must be engaged in “gainful employment”, be undertaking “vocational training”, be receiving Newstart Allowance, Youth Allowance or Austudy, be undertaking job search activities, be engaged in voluntary work, or be undertaking a “vocational rehabilitation program”.

13. Of these, the two which appear to be of potential relevance to Ms Koutelas’ circumstances are “vocational training” which, as noted above, is defined to include “training known as independent living skills or life skills training” and a “vocational rehabilitation program”, which is relevantly defined in s 1035 as “a rehabilitation program … under Part III of the Disability Services Act 1986”. 

14. As to whether the rehabilitation being undertaken by Ms Koutelas can be properly characterised as “independent living skills or life skills training” although those terms are not further defined in the SS Act, the Guide to the Social Security Law contains guidance for decision-makers as to the interpretation of these terms which I consider it appropriate for the Tribunal to have regard to[2].  The relevant section of the Guide states as follows:

[2] See Re Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179

“The main aim of an independent living/life skills course is the development of personal and social skills to facilitate greater independence and participation in society.  These courses are usually directed at people with intellectual disabilities and may also include recreational activities.

If a recipient is undertaking a course that includes a component of independent living or life skills training for at least 32 hours every four weeks they satisfy the activity requirements for standard rate MOB.  Such training in combination with vocational training and/or gainful employment, and/or voluntary work may also satisfy the 32 hours every four weeks rule.  …

In determining whether the course teaches independent living or life skills, the following factors are to be considered:

·the course/s should be tailored to meet the needs of the individual, and

·the courses should include training in daily living skills that would assist the individual to attain or maximise their independence.  Such skills could include, but are not limited to, personal care and hygiene, basic communication skills and interpersonal relations, money management, food preparation and transport use.

It is not necessary to have regard to the duration of the course or the recipient’s ability or intention to find gainful employment at the completion of the course.”

15.     In relation to the assessment of vocational training more generally, the Guide also includes the following:

“Vocational training assists the recipient to find gainful employment or to carry on a profession, trade or business.  Training courses are only accepted as vocational training if the following conditions are satisfied:

·the purpose of the training is to make the recipient ready for gainful employment, and

·it is more likely than not that the course will assist the recipient to find gainful employment, and

·the recipient has the physical and intellectual ability to undertake gainful employment, and

·the recipient intends to engage in gainful employment at the end of the training course.”

16.     Having regard to Ms Koutelas’ evidence that the main goal of her rehabilitation activities was to increase her overall strength, balance and fitness, the respondent contended that these activities were not correctly categorised as “vocational training, independent living skills or life skills training”.  In documentary written submissions filed after the hearing, the respondent submitted:

“The applicant attends exercise classes to assist her personal rehabilitation not to train her in any vocation or to assist her with the provision of independent living skills or life skills training.”

17. The respondent also addressed in its supplementary written submissions the question of whether Ms Koutelas was undertaking a “vocational rehabilitation program” as defined in s 1035 of the SS Act, contending:

“The respondent does not know if the exercise program the applicant undertakes is a ‘rehabilitation program (or a follow up program) under Part III of the Disability Services Act 1986’. The applicant has not provided any evidence to the Tribunal that her exercise program meets this description.

However the respondent contends that her exercise program is unlikely to meet this description and it is also unlikely that the applicant’s exercise program provides the applicant ‘with assistance to obtain or retain unsupported paid employment’.”

18.     The respondent further contended that even if the applicant’s exercise/rehabilitation program meets this definition, she was required to undertake this activity for 32 hours in every four weeks and as she does not engage in this amount of activity, she was not entitled to Mobility Allowance in any event. 

19.     Having regard to the terms of the Guide, as well as the legislation itself, I am not satisfied that the rehabilitation activities being undertaken by Ms Koutelas fall within the definition of “vocational training” or a “vocational rehabilitation program” within the meaning of s 1035.  Although the activities she is undertaking come closer to falling within the definition of “independent living skills or life skills training” than any of the other qualifying activities, I note that the activities she is undertaking are directed primarily at increasing her strength, balance and overall fitness, with a view to enabling her to further overcome the effects of the 2008 surgery.  Whist there is no doubt that this rehabilitation has the potential to increase her independence, in my view the courses she is undertaking are directed essentially at improving her physical capacity and capability, rather than training her in daily living skills of the kind referred to in the Guide.

20.     As the respondent contended however, even if I was to be satisfied that the activities being undertaken by Ms Koutelas fell within the definition of “vocational training” provided for in s 1035, there is a further test she must satisfy in order to qualify for Mobility Allowance.  In order to qualify for Mobility Allowance on the basis that she was undertaking vocational training, she would need to be undertaking relevant activities for at least 32 hours in every four weeks on a continuing basis[3].

[3] s 1035(1)(b)(iii)(C)

21.     The evidence before me established that at most, Ms Koutelas undertakes such activities for approximately three hours each week, amounting to about 12 hours in every four week period.  It follows that even if I was satisfied that her activities fell within the definition of “vocational training”, as she would not satisfy the time requirement within s 1035, she would nevertheless not be qualified to receive Mobility Allowance.

22.     In relation to a “vocational rehabilitation program” there is no time requirement imposed by s 1035.  However, as the respondent pointed out, there is no evidence before me that any of the rehabilitation currently being undertaken by Ms Koutelas is or is part of a rehabilitation program (or follow up program) under Part III of the Disability Services Act 1986.  Nor is there evidence before me to establish that the rehabilitation is intended to assist Ms Koutelas to obtain or retain unsupported paid employment.  As discussed above, the evidence available to me suggests that the rehabilitation is rather directed at improving her physical capacity and capability such as to restore her independence so far as possible.

23. As mentioned above, there was nothing before me to suggest that Ms Koutelas would not benefit from the rehabilitation programs which have been offered to her, or that she did not reasonably require financial assistance in order to travel to those activities. However, for the reasons set out above, I have concluded that as she does not meet the requirements of s 1035 of the SS Act, she is not qualified to receive Mobility Allowance.

24.     I have therefore decided to affirm the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         ..............J Coulthard..........................................
  Associate

Date of Hearing  13 April 2010
Date of Decision  6 July 2010
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr C Visser

Centrelink Advocacy Branch