Robyn Kieseker and Secretary, Department of Social Services

[2013] AATA 912

[2013] AATA  912

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2929
Re	Robyn Kieseker
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	19 December 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Mobility allowance paid at the higher rate – Applicant released by job search provider – Mobility allowance continued for 12 week period of grace – Applicant no longer qualified for mobility allowance – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 1035, 1035A, 1046

REASONS FOR DECISION

Mr R G Kenny, Senior Member

19 December 2013

BACKGROUND

1. The applicant was receiving the mobility allowance when, on 15 November 2012, Centrelink suspended that payment with effect from 8 February 2013. The mobility allowance is a payment made under the Social Security Act 1991 (Cth) (“the Act”).

   
   

   The suspension was imposed because Centrelink determined that the applicant was no longer qualified to receive the payment. That decision was affirmed by an authorised review officer from Centrelink on 26 March 2013 and, in turn, by the Social Security Appeals Tribunal on 21 May 2013.

   LEGISLATION AND SUBMISSIONS

2. The qualifications for mobility allowance, including the requirements of the travel test, are set out in s 1035 of the Act. Further, the mobility allowance is payable at a higher rate where s 1035A of the Act is satisfied. It is not in dispute that the applicant was qualified for the mobility allowance at the higher rate while it was being paid to her. Under s 1046 of the Act, a person qualified for the higher rate of mobility allowance will remain qualified for the mobility allowance for a further 12 weeks even though the person no longer satisfies the qualification requirements.

3. The applicant was qualified for mobility allowance at the higher rate because she was undertaking job search activities through Job Placement Limited (“JP”) which is one of the agencies in the Disability Employment Service (“DES”). She was in receipt of the disability support pension so it was not necessary for her to look for work and she was treated as a “volunteer” by JP. She received notification in an undated letter from JP that her placement would cease on 15 November 2012.[1] As she was no longer with JP from 15 November 2012, Centrelink determined that she was no longer qualified for the mobility allowance. However, the mobility allowance continued to be paid to her for the period of 12 weeks under s 1046 of the Act. The respondent determined that the end of that period was on 7 February 2013 so that mobility allowance was not payable to her from 8 February 2013.

   [1] Exhibit 2.

4. The applicant submitted that the decision to cancel her mobility allowance was unfair because JP had closed its doors at the branch to which she reported because of government policy. Also, she understood that she would be referred, during the 12 week grace period, to another DES agency. However, this did not happen and she was unable to requalify for the mobility allowance.

5. For the respondent, Chris Bishop submitted that the decision under review ought be affirmed because the applicant was no longer qualified for the mobility allowance after JP exited her from her placement with that company. 

   CONSIDERATION

6. It is common ground that the applicant met the qualification requirements for payment of the mobility allowance at the higher rate until 15 November 2012. This was on the basis that she was undertaking job search activities through JP. In evidence was the letter from JP which clearly advised her that she was being exited on 15 November 2012. Also in evidence was a letter, dated 12 November 2012, to the applicant from the respondent.[2] Therein, the applicant was advised that JP was no longer delivering DES services after March 2013 but that she would continue to receive help from JP until then. The respondent’s letter also advised that, in January 2013, she would be advised of a new provider. On the applicant’s evidence, this did not happen. Continuing assistance was not given by JP and, even after the 12 week period of grace, she had not been referred to another DES provider.

   [2] Exhibit 3.

7. The circumstances of the applicant are unfortunate. Despite that, the relevant provisions of the Act do not admit of an exercise of discretion in her favour. She was not qualified for mobility allowance after 15 November 2012 and, after the 12 week grace period, the respondent was not obliged to continue with payments. The decision was made in accordance with the terms of the Act and that decision must be affirmed.

   DECISION

8. The Tribunal affirms the decision under review.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member

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Associate

Dated 19 December 2013

Date of hearing	13 December 2013
Applicant	In person
Solicitors for the Respondent	Mr Christopher Bishop, Departmental Advocate