Omo and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 440

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 440

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5057

GENERAL ADMINISTRATIVE DIVISION		)
Re		KAMAYO OMO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Regina Perton, Member

Date18 June 2009

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – mobility allowance – cancellation – fresh application – whether applicant engaged in gainful employment for required period per week - decisions affirmed. 

Social Security Act 1991 ss 19, 1035(1), (2), (3)

REASONS FOR DECISION

18 June 2009 Ms Regina Perton, Member          

1.      Kamayo (George) Omo suffers from disabilities that impact on his ability to travel by public transport.  He received a mobility allowance, a payment that is available to a handicapped person who is engaged in gainful employment as he was, from 20 March 2002 until 25 June 2003 and again from 20 September 2006 until 7 May 2008.  On 3 July 2008 Centrelink, which administers mobility allowance for the Department of Education, Employment and Workplace Relations, cancelled Mr Omo’s mobility allowance effective from 7 May 2008.  On 13 June 2008 Mr Omo lodged a fresh claim for mobility allowance which was refused. 

2.      On 2 September 2008 an authorised review officer of Centrelink affirmed the decisions to cancel mobility allowance and to refuse the fresh claim.  On 9 October 2008 the Social Security Appeals Tribunal (SSAT) also decided that Centrelink’s decisions concerning mobility allowance were correct.  Mr Omo lodged an application with the Tribunal on 27 October 2008 to review the SSAT decision.

3.      The issue for the Tribunal to consider is whether the decisions to cancel Mr Omo’s mobility allowance and refuse his subsequent claim for the allowance are correct.

Relevant Legislation and Policy   

4. Section 1035 of the Social Security Act 1991 (the Act) sets out the qualifications for a mobility allowance.  There are several alternative ways of qualifying, provided the person seeking the allowance is a handicapped person.  A handicapped person is defined in s 19 of the Act as a person who has a physical or mental disability and has turned 16.

5. One of the common provisions in s 1035 relates to an inability by the handicapped person to use public transport in the following terms:

…

(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;

…

6. Of the various alternative criteria in s 1035(1) for qualifying for a mobility allowance, those possibly relevant to Mr Omo are s 1035(1)(a), where the handicapped person is engaged in gainful employment for at least 32 hours in every 4 weeks on a continuing basis; s 1035(1)(f), where the person undertakes voluntary work for at least 32 hours in every 4 weeks on a continuing basis; or s 1035(g), which involves a mixture of voluntary work and gainful employment for that same period of time. The other alternatives are not applicable to Mr Omo. They apply to people who are on social security benefits other than disability support pension (DSP) and/or are undertaking vocational training. Mr Omo receives DSP and is not undertaking vocational training

7.      Gainful employment is defined in s 19 of the Act as:

(a)paid employment (including sheltered employment); and

(b)self‑employment that is intended to result in financial gain. 

8.      Voluntary work is defined in s 1035(3) as work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations.   Departmental documents indicate that the voluntary work approved by the Secretary is for organisations such as the Salvation Army, Society of St Vincent de Paul, Rotary Australia and the like.

9. S 1035(2) states that the person who seeks the mobility allowance must be required to travel to and from his home for the purpose of undertaking his gainful employment or voluntary work.

Does Mr Omo qualify for mobility allowance?

10.     Centrelink concedes that Mr Omo meets the definition of handicapped person and that he is unable to use public transport without substantial assistance due to his disabilities.  The Tribunal accordingly finds that Mr Omo meets the definition of handicapped person. 

11.     Centrelink does not accept that Mr Omo’s self-employment meets the definition of gainful employment in s 19 of the Act nor of voluntary work in s 1035(3) of the Act. Mr Omo disagrees.

12.     Mr Omo provided documents in support of his claim that he was in gainful employment and doing voluntary work, including the registration of business names; posters and invitations regarding functions he has organised; invoices for advertisements in specialist and daily newspapers and proposals to owners/lessees for using their venues for events.  He also provided letters dated 6 February 2009 and 20 April 2009 from Nze Nkem Anele of the Owerri Community of Friends Vic, describing a Mother’s Day function held on 10 May 2008 which Mr Omo helped to organise.  According to the letters Mr Omo arranged the sound system and an African disc jockey (DJ) and helped to set up the hall before and tidy up after the function.  The organisation paid $250 to the DJ but is unaware if any of that went to Mr Omo.

13.     Mr Omo told the Tribunal about his efforts at arranging functions trading under the registered business name of George Omo Productions.  He also spoke about Black is Black Productions, a business name registered in August 2008, for which he has great hopes.  Mr Omo described how he was often sought out and asked to attend the Monsoons nightclub in the Grand Hyatt Hotel for some years as a result of his dancing ability, musicality, his genial hosting and African background.  While he did not get paid to attend, he received free entry and drinks.  That venue has now closed. 

14.     Mr Omo described a gig he organised in April 2007 at the Khokolat bar in Hardware Lane.  He was required to pay two DJs and a cashier and about 70 people attended.  Unfortunately, the takings amounted to only $50, which was reported to Centrelink.  Mr Omo had hoped that it would be a weekly event but in the second week only 10 or so people attended and that was the end of that plan.  Mr Omo said that he had worked on the plan for the gigs at Khokolat bar for two months before it started.  This included planning, coming up with concepts, negotiations with the owners, printing passes and posters, preparing guest lists, arranging for friends to give out passes and so on. 

15.     Mr Omo advertised the gigs he organised in The Age newspaper and Impress Magazine and has now accumulated quite a few bills for the advertising.  He also printed passes and posters which a graphic design company produced for him based on his designs.  

16.     Mr Omo described his plans to arrange gigs at the Colonial Hotel in King Street.  He was offered a one-off gig for 16 February 2009 but he did not proceed as the timing was wrong.  He still plans to run something there.  Mr Omo described how the owner of the Colonial Hotel had been impressed by his adoption of the name Black is Black Productions, which was a name related to a lapsed former business which Consumer Affairs had allowed Mr Omo to register.  Mr Omo described his genial relationship with the operators of a number of venues. 

17.     Mr Omo also described events he had organised in earlier years including at the High Society dance club in Doncaster in 2007 and at the Castle Hotel in North Melbourne.  Mr Omo said that unfortunately, given the upfront costs, most of the events he has organised have not been profitable. 

18.     Mr Omo said that he had been voluntarily helping a friend who had been setting up an industrial cleaning business.  He assisted his friend, who regularly called into his home, by helping him formulate a business plan, advising him how to register a business and by telling people about the proposed business.  Mr Omo had a verbal agreement with the friend that he would pay Mr Omo once the business started operating.  The friend had offered to pay Mr Omo but has not done so and has now moved interstate.  The business did not proceed as it was underfunded. 

19.     Mr Omo said that he still hands out passes to gigs at various venues for which he receives free entry and drinks in return.

20.     In June 2008, when lodging his fresh claim for mobility allowance, Mr Omo submitted that he spent about 100 hours over a four week period in relation to his entertainment business.  He also stated that at that time, he was also helping his friend with his industrial cleaning business for about 100 hours over a four week period.  The friend provided an undated statement to Centrelink in which he stated that Mr Omo was working voluntarily for his business as a promotional staff member. 

21.     On 2 August 2008, at Centrelink’s request, Mr Omo answered a questionnaire about the business of George Omo Productions.  He stated that he spent about 25 hours per week on activities in relation to the business.  He indicated that the business was not generating any income.  He was unable to provide any of the business documents requested by Centrelink, such as a balance sheet, a profit and loss statement or a personal income tax return.  On 20 August 2008 Mr Omo completed another questionnaire leaving the question about the business generating income unanswered.  On 20 August 2008 he provided two profit and loss statements for the periods from 7 August 2008 to 4 September 2009 and 5 September 2008 to 2 October 2008.  Mr Omo stated that in the first four week period, his expenses would have been $900 and his net income would have been a loss of the same amount.  The latter period would have involved $600 in expenses, again with no income and a net loss of $600.  Mr Omo also outlined his plans for the gig at the Colonial Club and another event he hoped would be a regular one.  However, these plans have not yet come to fruition. 

22.     Mr Omo is a resilient, likeable and gregarious optimist who continues to try to arrange gigs.  Unfortunately, at the time of the cancellation of mobility allowance in May 2008 and the fresh application in June 2008, his self-employment was not generating income.  Even more unfortunately, his efforts have not yielded income in the period since then.

23.     The definition of gainful employment has as a key element the concept of financial gain.  Mr Omo’s efforts have to date resulted in financial losses.  The statements he provided in August 2008 provide evidence of anticipated losses.  Centrelink submitted that at the relevant period in mid-2008, Mr Omo did not provide any evidence that he was paid for the work he undertook for George Omo Productions.  The Tribunal agrees with Centrelink’s submissions concerning his inability to meet the definition of gainful employment in s 19 of the Act. Accordingly, the Tribunal finds that Mr Omo was not in gainful employment at the relevant time.

24.     Because of the definition of voluntary work in s 1035(3) of the Act – that is work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations – the Tribunal is unable to classify Mr Omo’s work for George Omo Productions and other businesses he operates in the entertainment field as voluntary work.  His efforts for his friend’s cleaning business also fail to meet that definition of voluntary work. 

25. Mr Omo was unable to meet any of the relevant alternative criteria for mobility allowance in s 1035(1) of the Act when his allowance was cancelled in May 2008 or when he reapplied in June 2008. Hence, the Tribunal must find that he failed to qualify for mobility allowance. It follows that the SSAT decision was correct and must be affirmed. Mr Omo remains entitled to reapply for mobility allowance in the future.

Decision

26.     The Tribunal affirms the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd):  Leah Berardi

Clerk

Date of hearing:  19 May 2009
Date of decision:  18 June 2009
Advocate for applicant:                Self-represented
Advocate for respondent:            Kayren Paul, Centrelink Legal Services Branch