Rouf and Secretary, Department of Family and Community Services
[2004] AATA 838
•11 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 838
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/457
GENERAL ADMINISTRATIVE DIVISION ) Re Mohammed Rouf Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Robin Hunt, Senior Member Date11 August 2004
PlaceSydney
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal that the Applicant did not qualify for Newstart Allowance on 28 October 2003 nor would he have satisfied the requirements for exemption from the activity test had he qualified at that time.
……………………..
Robin Hunt
Senior Member
CATCHWORDS
Newstart Allowance - qualification to receive – applicant studying - applicant not unemployed – applicant suffering from health condition – applicant not actively seeking work – not exempted from activity test
Social Security Act 1991 ss 593(1)(a)(i), 595(1), 601(1)(a), 601(2), 603C
Re Maiorano and Director-General of Social Security (1984) 5 ALN N548
Director-General of Social Security v Thomson (1981) 38 ALR 624
Re Thomson and Director-General of Social Security (1981) 3 ALN 51
Re Weekes and Director-General of Social Security (1981) 3 ALN N141B
Re Robson and Secretary, Department of Social Security (AAT 7985, 28 May 1992)
Re Hill and SDSS (AAT 8959, 1 September 1993)
Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26
REASONS FOR DECISION
11 August 2004 Robin Hunt, Senior Member 1. The Social Security Appeals Tribunal (“the SSAT”) affirmed the decision of an Authorised Review Officer on 12 March 2004 that Mr Rouf was not entitled to payment of the Newstart Allowance as at 23 October 2003. Mr Rouf applied to the Administrative Appeals tribunal (“the AAT” “the Tribunal”) on the basis of his poor health and his need for the allowance in order to be able to search for other employment. The Tribunal has affirmed the decision of the SSAT and finds that Mr Rouf was not eligible to receive the Newstart allowance on 23 October 2003 although he might well be eligible at the date of this decision. The Tribunal’s reasons are set out below.
2. The Tribunal held a hearing on 23 July 2004 at which Mr Rouf presented arguments and gave oral evidence. He told the Tribunal that he had been receiving the Newstart Allowance for about two years before it was cancelled. He had been declaring his fortnightly income and actively seeking work throughout. He had been working part time as a taxi driver to support his wife and children but had to cease this occupation because he suffered severe respiratory problems. During 2003 he had also been studying at TAFE with a view to qualifying for another occupation that would not expose him to the road traffic pollution that exacerbated his health problems. Mr Rouf was still unwell at the time of the hearing and showed the Tribunal a collection of his medications.
3. Mr Rouf’s declaration form for Newstart Allowance, which he completed on 16 August 2002 (T3, 10 - 19), shows that he declared on page 2 of the form that he was not working or working less than 15 hours per week. It is not clear why this is the only declaration produced to the Tribunal but the advocate for the respondent suggested it may have been the last declaration that Mr Rouf completed. Mr Rouf gave evidence that he had filled out more than one such form but agreed with the advocate that this may have been his most recent declaration before the cancellation decision.
4. The record before the Tribunal, at T27, shows that Centrelink identified Mr Rouf as a self employed taxi driver when investigating persons who had not supplied Centrelink with evidence of income earned (T7, 24). Mr Rouf had been declaring casual income while he had been receiving a Newstart Allowance since 24 March 1999 but had not provided any verification of the amount he earned. On 16 September 1999, an officer advised Mr Rouf that Centrelink considered him to be a self employed taxi driver. Mr Rouf responded that he was medically unfit to work as a taxi driver full time. He had not advised Centrelink of his medical problem because he was looking for work in his field of studies. Centrelink then referred his case to Health Services Australia (“HSA”) and a doctor carried out a medical assessment of Mr Rouf on 21 October 2003. HSA assessed Mr Rouf as fit for full time work despite his health problems (T12, 31). The HSA assessment noted that Mr Rouf claimed to have to have been working 50 to 60 hours per week. Centrelink then cancelled the Newstart Allowance. Centrelink also cancelled Mr Rouf’s wife’s partnering allowance as she did not respond to a Centrelink request for financial information. Mr Rouf later provided some financial information for the period 3 July 2002 to 22 October 2003 but Centrelink rejected this as proof of the income Mr Rouf stated he had received for the period covered.
5. At the Tribunal hearing, Mr Rouf claimed that he had always declared his income to Centrelink and that, as he could not continue to work as a taxi driver because of his health, he had been actively seeking other work. Although he had been working as a taxi driver and attending TAFE classes for 20 hours per week at the time his allowance was cancelled, he had spaced his working hours so that he could still meet his obligations to seek work as expected for receipt of the allowance. Mr Rouf did not deny that he had been working part time as a taxi driver and attending a TAFE course at the time his allowance was cancelled. He argued that he should still be entitled to the allowance as his medical condition prevented him from continuing to drive taxis. He further claimed that his personal earnings did not cut in until after several hours of driving as the first few hours only recovered costs such as fuel. Despite long hours of work as well as attending his TAFE course, Mr Rouf said he had arranged his time so as to be looking for alternative work as well.
6. As found by the SSAT, there is no dispute that Mr Rouf suffers from acute sinusitis. There is also no dispute that Mr Rouf is capable of working full time at another occupation than taxi driving. The main thrust of Mr Rouf’s argument is that he cannot work full time as a taxi driver because of his medical condition and that he, therefore, should have continued to receive a Newstart Allowance. He does not accept that working as a taxi driver for several hours per week disqualified him. He argues that he was studying towards qualifying himself for another occupation and actively seeking other work. He contends he should not, therefore, be penalised by having worked part time as a taxi driver because it made him ill and he has since ceased this activity.
7. While in Re Maiorano and Director-General of Social Security (1984) 5 ALN N548 the Tribunal held that an applicant was unemployed and still eligible for benefits during a period when he was unwell, the applicant in that case did not in fact continue to work. By contrast, while Mr Rouf claims he was unable to continue to work as a taxi driver because of his health, the evidence before the Tribunal is that Mr Rouf, nevertheless, actually was working as a taxi driver in the period leading to and at the time of the cancellation of his allowance. This was despite medical advice that he should cease work as a taxi driver and find another occupation. His case is, therefore, distinguishable from Re Maiorano and Director-General of Social Security (1984) where the applicant had ceased to work. In addition, there are many further cases where the Tribunal and Courts have held that persons are not “unemployed” while engaged in business or are self employed. Centrelink made its assessment as to Mr Rouf’s being employed based on his ability to work full time in the opinion of a medical practitioner in the services of HSA (T12, 31) and other evidence. It found that he was a self employed taxi driver. He was advised of the decision on 10 December 2003 (T24, 60 to 61).
8. Mr Rouf was found correctly, in the opinion of the Tribunal, to be a self-employed taxi driver. When Centrelink made enquiries about Mr Rouf’s hours of work, a taxi company provided copies of its records showing the hours he worked over a period between May and June 2003 (T6 and T7). Mr Rouf indicated in his completed form requesting review (T25, 64 and 65) that he was a “bailee driver”. He stated he worked 7 to 8 hour shifts only and could not work a 12 hour shift which led to his only recouping fuel and other costs. Mr Rouf also lodged a Business Activity Statement return in June 2003 (T5, 21). Other documentary evidence of Mr Rouf’s activities are before the Tribunal and are detailed in the reasons for decision of the SSAT. Mr Rouf has not claimed that these records are wrong. His oral arguments before the Tribunal were that he could not earn a living by working the hours indicated. This may be so but does not mean that Mr Rouf was not working full time or was unemployed.
9. To qualify for the Newstart Allowance, a person must satisfy the Secretary that he or she is unemployed. Subsection 593(1)(a)(i) of the Social Security Act 1991 (“the Act”) makes being unemployed a requirement. The term “unemployed“ is not defined. As the Centrelink advocate has submitted, the Full Court of the Federal Court found in Director-General of Social Security v Thomson (1981) 38 ALR 624 that whether a person is unemployed is a matter of fact and degree. The Court decided that being a full time student meant that the person was not unemployed. Merely being without paid work does not make a person unemployed. Mr Rouf admits that he worked several hours a week, albeit without earning a substantial income, Mr Rouf also admits that he was attending TAFE classes for 20 hours per week. The SSAT found that the combined hours of work and study at the time of the cancellation decision meant that Mr Rouf was not unemployed. The Tribunal agrees with this finding. It is immaterial that Mr Rouf would have preferred to find another occupation when determining whether or not Mr Rouf was or was not unemployed.
10. According to Director-General of Social Security v Thomson (1981) and other decided cases, being engaged in other activities can indicate a preference for that activity rather than being in the workforce. Also see the AAT reasons for decision in Re Thomson and Director-General of Social Security (1981) 3 ALN 51 as to a full time student and in Re Weekes and Director-General of Social Security (1981) 3 ALN N141B, where an applicant was engaged in an unprofitable business. Similarly in Mr Rouf’s case, spending several hours per week driving taxis as well as spending several hours a week at TAFE, indicates a preference to be employed in this manner than to being unemployed in the sense expected for entitlement to Newstart Allowance. Although Mr Rouf says that he always declared his income to Centrelink, the income declared is not necessarily the same matter as considering the effect of the activities occupying Mr Rouf’s time. Mr Rouf was engaged in long hours of activity which amounted to being in full time employment and disqualified him from receipt of the allowance.
11. Mr Rouf has also argued that he was actively seeking work throughout the weeks he was both driving taxis and attending classes. It is a further requirement under section 601(1)(a) of the Act that a recipient of the allowance be actively seeking paid work. Centrelink has argued that an inevitable conclusion drawn from the long hours of paid work and study pursued by Mr Rouf is that he had insufficient time left for actively seeking alternative paid work. Mr Rouf denies this but has not produced any compelling evidence that he was making much effort to find other work. I therefore am not satisfied that Mr Rouf was actively seeking paid work other than the taxi work he has since ceased. The health problems he suffers did not prevent him from performing this work at the relevant time although he may have been unwise to continue and has since stopped.
12. Section 595(1) of the Act allows the Secretary, or the Tribunal, to treat a person as being unemployed throughout if the nature and duration of the work should be disregarded or if certain other factors apply. The Secretary and the SSAT declined to exercise this discretion. Previous cases show that this discretion has been exercised where the employment has been sporadic or very short term. See, for example, Re Robson and Secretary, Department of Social Security (AAT 7985, 28 May 1992), Re Hill and SDSS (AAT 8959, 1 September 1993) and Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26. Mr Rouf’s employment as a taxi driver was not in my opinion short term or sporadic although he stopped work as such in December 2003.
13. In addition, a further discretion under section 595(2) of the Act allows the Secretary to treat a person as unemployed where meeting with a requirement under section 601(2) of the Act (activity test) or a Newstart Activity Agreement. I have considered whether Mr Rouf’s work and his lack of activity to find alternative work should be disregarded because of his medical condition. Mr Rouf has strongly argued this. However, the assessment of the HSA doctor on 21 October 2003 was that he was fit for work and noted that he claimed to be driving taxis for 50 to 60 hours per week instead of “his usual 12 hour shifts”. Despite the harm that this work caused him, Mr Rouf chose to continue until December 2003. As he was fit for work, I consider there is no adequate excuse for his not having more actively sought alternative employment other than driving taxis. He has not provided conclusive evidence that he was doing this and I decline to exercise the discretion. His case bears some similarities to Re Waller and Secretary, Department of Social Security (1985) where the Tribunal declined to exercise the discretion. Mr Waller had worked for an indefinite period and ceased when he found out that his employment would affect his unemployment benefit.
14. Mr Rouf might also have been granted temporary exemption from the activity test under section 603C of the Act. However, I have already found that he was not entitled to the Newstart allowance for other reasons. In any event, Mr Rouf obviously was not incapacitated for work by his health. He was found by HSA to be fit and was in fact working. His only claim in this regard is that he was incapacitated from doing a 12 hour shift as a taxi driver and wanted other work. For completeness, I find that Mr Rouf did not qualify for temporary exemption.
15. The Tribunal affirms the decision of the SSAT that the Applicant did not qualify for Newstart Allowance on 28 October 2003 nor would he have satisfied the requirements for exemption from the activity test had he qualified at that time
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member
Signed: .....................................................................................
AssociateDate of hearing 23 July 2004
Date of decision 11 August 2004
Representative for the applicant Self-represented
Advocate for the respondent James Larcombe, Centrelink Advocate
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