Weston and Secretary Department of Family and Community Services

[2005] AATA 704

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 704

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1344

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ROBIN WESTON

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date26 July 2005

PlaceSydney

Decision The decision under review is affirmed.

[sgd] Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY - mobility allowance - failure to return review forms - cancellation

LEGISLATION

Social Security Act 1991(Cth) - sections 19, 1035

CASE LAW

Freeman and Secretary, Department of Social Security (1988) 87 ALR 506   

REASONS FOR DECISION

26 July 2005  Dr J D Campbell, Member

DECISION UNDER REVIEW

1.      This is an application to the Administrative Appeals Tribunal (“the Tribunal”) to review a decision of the Social Security Appeals Tribunal (“the SSAT”) on 15 September 2004, reviewing a decision made by Centrelink on 23 September 2003 and affirmed by an Authorised Review Officer (“ARO”) on 2 August 2004 to cancel the Mobility Allowance of Ms Robin Weston (“the Applicant”).from 23 September 2003.

BACKGROUND

2.      Ms Weston qualified as a teacher from Flinders University in 1980 and commenced teaching in schools in Sydney in 1981 as a casual teacher. Ms Weston experienced difficulties in this environment, (mis-focus, irritability), as she had during her university education (misstatements in social settings, dyslectic particularly with numbers).

3.      Ms Weston spent five years in radio (voluntary) before working in the correspondence school in Sydney in 1987 and 1988. Ms Weston worked for the ABC in radio for eight months, leaving because of increasing difficulties with concentration. Following this, Ms Weston went on tour with a band and in 1991, when finances were at their lowest, she worked as a radio station manager in Alice Springs for a few months.

4.      Ms Weston has had no paid full time employment since.  She then focussed on self-employment as a writer, voluntary radio work, voluntary work in music, voluntary work in bush regeneration and lately, caring for her co-tenant at their accommodation. During the period post 1991, Ms Weston has undertaken courses in music management, film production, desktop publishing, pursued her interests in Chinese Herbal Medicine and attended seminars at the Writers’ Centre in Rozelle.

5.      Ms Weston has also had a few articles published. Ms Weston worked for Power Coaching College as a part-time tutor (six hours per week) from July 2004. This activity ceased at the end of 2004. Ms Weston commenced receiving a Disability Support Pension (“DSP”) in 1998.

6.      On 24 April 2003, Ms Weston claimed Mobility Allowance. In her application (T6/24) Ms Weston detailed her self-employment activities as consultancy, writing, media and creative projects, but did not detail any other employment or voluntary work activities. Ms Weston stated that she had to travel to visit previous workplaces, contacts, ex-colleagues and for research. Ms Weston also noted that she needs help in completing forms.

7.      In an accompanying letter to the claim (T7/34) Ms Marah Weston, Ms Weston’s daughter, detailed the following:

·     That her mother does a number of hours of voluntary type work each week, spread between creating a cooperative organisation designed for the development of artists and artistic ventures and various other smaller projects.

·     That her mother seeks employment and paid work through her writing of fiction and essays.

·     That her mother spends a great deal of time on her computer, a great deal of time writing and has regular business meetings outside of her residence (eight to ten hours per week).

·     That because of her disability her mother is unable to travel distances.

8.      In an accompanying treating doctor’s report dated 22 January 2003 (T5) Dr Chesworth detailed Ms Weston’s disabilities as:

·     Chronic pain right foot for 12 years, following a severe laceration at age 16

·     Right sided sciatica since vitamin B injection at age 20

·     Torn right calf muscle causing pain and limited mobility over last 14 years

·     Hepatitis C carrier causing periods of lethargy and tiredness

·     Chronic dental problems – limits concentration, lower energy levels, difficulty with distance vision

·     Anxiety/depression – mostly anxiety

–     episodes of rage more with dental flare ups

–     troubles with concentration/memory/less energy/tiredness

–     trouble with relating to other people

9.      In relation to Ms Weston’s physical disabilities, Dr Chesworth stated that Ms Weston would suffer much difficulty/discomfort with walking 400 metres, standing in a bus/train, crossing streets and negotiating curbs, negotiating steps in or out of a bus or a train, and negotiating a large flight of stairs.  Dr Chesworth stated that Ms Weston would only have minor difficulty/discomfort in sitting in public transport and that her physical disabilities, albeit permanent, fluctuate in severity with restrictions varying from day to day.

10.     In relation to Ms Weston’s psychiatric disabilities Dr Chesworth stated that she would have moderate difficulty with personal survival skills and social skills, much difficulty with handling money and no difficulty in recognising landmarks and areas – all such skills being related to the use of public transport.

11.     As a consequence of this background material, and a case discussion with Ms Anderson (Ms Weston’s social worker), Ms Weston was granted Mobility Allowance commencing 24 April 2003.

12.     On 21 July 2003, Centrelink requested that Ms Weston provide verification documents which showed that she was in gainful employment or self-employed and that she needed assistance to travel to and from work to her home as part of her work. Such information was requested to be provided within 14 days.  If it was not provided her Mobility Allowance payment would be stopped from 5 August 2003. On 23 September 2003 Centrelink cancelled Ms Weston’s Mobility Allowance, documents having not been returned and a period of grace to return such exhausted (T16/43). Ms Weston was advised of this action by way of letter on 23 September 2003 , with the effective date of cancellation being 18 July 2003 (T20/47).

13.     On 18 August 2003 Dr Sachdev, a Consultant Psychiatrist, provided a medical certificate stating that Ms Weston is suffering from a medical condition and is not in a position to fulfil dole requirements (T22/50).

14.     On 2 September 2003, Dr Chesworth provided a statement that Ms Weston has been physically and mentally unwell for a long time, and due to the effects of these conditions, the effects of a lack of housing and other environmental factors, Ms Weston has been having a lot of trouble in completing forms requested by Centrelink. Dr Chesworth requested that Ms Weston’s difficulties with collation of data and completion of forms be taken into consideration (T22/51).

15.     On 25 September 2003, Ms Weston requested further time to complete forms as she had severe dental surgery on 5 September 2003 and is unable to manage forms (T22/49).

16.     In further correspondence following the cancellation Ms Weston advised that she was suffering from Asperger’s Syndrome (T40/93).  In other correspondence (T43/96) she detailed her endeavours, difficulties and hopes, as well as trying to explain her medical and personal difficulties, and the commencement of part-time tutoring with Power Coaching College from July 2004. Ms Weston lodged a further claim for Mobility Allowance on 22 July 2004 (T46/109).

17.     On 2 August 2004, the ARO affirmed the earlier decision to cancel Ms Weston’s Mobility Allowance as she had not provided material as requested to support her assertion that she was in gainful employment, that she had not earned any income from self-employment and that her self-employment was intended to result in financial gain.

18. The SSAT, in a decision dated 15 September 2004, affirmed the decision of 23 September 2003 to cancel Ms Weston’s Mobility Allowance as Ms Weston did not meet any of the requirements in section 1035(1)(a) to (g) of the Social Security Act 1991 (Cth) (“the Act”) at the time her Mobility Allowance was cancelled on 23 September 2003.

ISSUE BEFORE THE TRIBUNAL

19.     The relevant issue in this matter is whether Ms Weston was qualified for Mobility Allowance at the time it was cancelled on 23 September 2003, because of her failure to provide completed review forms.

DECISION

20.     The decision to cancel Ms Weston’s Mobility Allowance on 23 September 2003 was the correct decision, having considered what material was available at that time, the failure by Ms Weston to return completed review forms and the subsequent material which has been provided and which is relevant to better understanding the actions (or lack thereof) undertaken by Ms Weston at that time. The reasons for such a decision are contained within the ensuing paragraphs.

MS WESTON’S EVIDENCE

21.     In relation to the period July/August 2003, Ms Weston stated that she had difficulty in reconstructing or remembering much about this period. Ms Weston emphasised that she has always considered her main endeavour to be that of a writer, but at that time she was quite ill, having had dental treatment in August 2003, was homeless and had experienced other health difficulties. Further, Ms Weston remembers seeking from Ms Pike a document indicating that she had been involved in bush regeneration activity at Brooklyn, and this had been refused by September 2003. Ms Weston stated she was very ill. Ms Weston commented that she may have been house minding at that time.

22.     Ms Weston stated that she has had and continues to experience difficulties in completing forms. Nevertheless, Ms Weston stated that her main activities are now directed towards the completion of her memoirs, of which the first chapter has been completed.

CONSIDERATION AND FINDINGS

23.      Ms Weston has an eclectic array of interests and pursuits. Ms Weston’s obvious intelligence is evident in her discussion on such matters as her writing endeavours, her pursuit of an understanding of traditional Chinese remedies, including acupuncture, her interest in psychology, music and the media, and her activities in bush regeneration. These, in general terms, I find to be long standing activities and interests.

24.      I note that Ms Weston stated that her last period of full-time employment was with the radio station in Alice Springs in 1991. I further note that Ms Weston commenced receiving a DSP in 1998 and that as evidence of her continuing desire to be employed, she undertook part-time tutoring with Power Coaching College for some six months from July 2004.

25.      Further, I note that Ms Weston has had, and continues to have, difficulties in form completion. This, coupled with an inability to focus on what is necessary to be done is clearly intrinsic to Ms Weston’s Asperger’s Syndrome. In so stating I am mindful that her original claim was completed with assistance from her daughter, her treating doctor required three appointments to complete the treating doctor’s report and that the significant amounts of written material provided by Ms Weston during the course of this matter fail to focus on what is necessary to advance her claim in an evidentiary sense.

26.      In turning to Ms Weston’s claim for Mobility Allowance on 24 May 2003, it is evident from the treating doctor’s report that Ms Weston has both physical and psychiatric disabilities and that while both disabilities are permanent, the symptoms arising from such fluctuate in severity from day to day. Further, the report fails to convey an understanding as to the seriousness of the symptomatology of each disability, other than to nominate that such disabilities may cause moderate, much or minor difficulty in the use of, but not preclude, Ms Weston’s use of public transport.

27.      In addressing Ms Weston’s actual claim form, her subsequent evidence and the accompanying letter from her daughter, it is evident that neither detail the specifics of Ms Weston’s self-employment.  In noting that the type of work nominated was consultancy, writing, media and creative projects, and that such commenced in 1990; that no mention of voluntary work was detailed or completed and again the absence of specific detail as to what was in progress at the time of claim, I conclude that the claim form dated 24 April 2003, together with the letter from her daughter dated 24 April 2003, and the material and evidence later provided by Ms Weston, do not provide sufficient detail upon which a determination could be made.

28.      That a determination was made is not in question. That Ms Weston considers that she undertakes a number of pursuits and endeavours including writing, research into traditional Chinese medicine and voluntary work in music and bush regeneration is not in question.  What is in question is what employment or self-employment activities Ms Weston was involved in at the time of her claim. In seeking such an understanding Centrelink sent review forms in July 2003 to be completed by Ms Weston within 14 days. Such forms have never been completed.  Further, such information subsequently provided by Ms Weston has failed to address and provide with any degree of specificity, the information necessary for an appropriate determination to be made.

29. In addressing the legislative requirements nominated in sections 19 and 1035(1) and (2) of the Act for an individual to qualify for Mobility Allowance, I note that an individual must satisfy the following:

·Be a handicapped person

·Be engaged in gainful employment

·Be unable to use public transport without substantial assistance, either permanently or for an extended period

·Such inability to use public transport without substantial assistance is due to the person’s physical or mental disability

·Be engaged in meaningful employment for 32 hours in every 4 weeks on a continuing basis; or

·Be engaged in vocational training for at least 32 hours in every 4 weeks on  a continuing basis; or

·Be engaged in voluntary work for at least 32 hours every four weeks on a continuing basis; or

·Undertaking a combination of any two 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

·Be an Australian resident

and must satisfy the travel test, namely be required to travel to and from the person’s home for the purpose of undertaking:

(a) gainful employment

(b) vocational training; or

(c) job search activities; or

(d) voluntary work

30.      After considering the evidence provided at the time of lodging the claim for Mobility Allowance in April 2003, and the considerable volume of material provided after the Mobility Allowance was cancelled in September 2003, in so far as the material relates to the period leading to the time the cancellation was effected, I make the following findings:

(a) at no stage was material provided that would permit a finding to be made that Ms Weston was undertaking for at least 32 hours every four weeks on a continuing basis a combination of either gainful employment and vocational training or voluntary work or vocational training and voluntary work. In so stating, I acknowledge that Ms Weston is pursuing her writing endeavours with a view to publication and also furthering her skills by attending at the Writers Centre (this not falling within the definition of vocational training pursuant to section 19 of the Act). While I am satisfied that Ms Weston is pursuing her writing, I am not satisfied that there is sufficient evidence to support findings that she was undertaking such activity with the intention of securing financial gain or for 32 hours every four weeks on a continuing basis at or around the period in question. Indeed, there is much evidence to suggest that Ms Weston was unwell during the period in question as well as experiencing other difficulties, described by Dr Chesworth as a lack of housing and other environmental factors. In further comment regarding the issue of financial gain, one would expect to be provided with tangible material that points to the activity being undertaken, such as writing, to secure a monetary reward (contract, letter, etc) as opposed to a pursuit which has been undertaken over many years since 1991 with a few articles being published and strong encouragement to embark upon a compilation of her memoirs.

(b) that in the absence of material which would allow a finding to be made that Ms Weston was undertaking the necessary activities nominated in the previous paragraph; I conclude that Ms Weston fails to satisfy the travel test nominated in section 1035(2) of the Act.

(c) that the treating doctor’s report by Dr Chesworth has detailed Ms Weston’s physical and mental disabilities. However, Dr Chesworth is particular in nominating that while such disabilities may cause Ms Weston minor, major or much difficulty with the use of public transport, they do not prevent her from using public transport. In noting that Dr Chesworth also states that Ms Weston’s symptomatology from her impairments varies in severity from day to day, I conclude that there is insufficient evidence to support a finding that Ms Weston is unable to use public transport without substantial assistance either permanently or for an extended period.

(d) finally, I would conclude that there is insufficient evidence available during the period in question to permit a finding that Ms Weston was engaged in either vocational training or voluntary work for 32 hours every four week period on a continuing basis; as the evidence available is basically unable to be clarified, classified or quantified.

31.      I am mindful that much has happened since the determination was made to cancel Ms Weston’s Mobility Allowance, I am also mindful that Davies J in Freeman and Secretary, Department of Social Security (1988) 87 ALR 506 at 510 stated:

“The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration...”

32.      In such circumstances as exist in this matter, I find that the decision to cancel Ms Weston’s Mobility Allowance on 24 September 2003 was the correct or preferable decision, for the reasons nominated in paragraph 30.

33.      I am also mindful that if Ms Weston should elect to make a further claim for Mobility Allowance, assistance should be given to Ms Weston by way of help in collating the necessary information, if available, and completing the necessary form. Such assistance is in response to a clear delineation of the difficulties experienced by Ms Weston in collating the necessary data and completing the necessary form as a consequence of disabilities arising from her Asperger’s Syndrome. I note the Respondent’s acquiescence to such provision of assistance, while at the same time recognising that even with such help the relevant material may remain wanting in terms of the qualifications necessary for payment of Mobility Allowance.

DETERMINATION

34.      The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         L Feely
  Associate

Date of Hearing  17 June 2005
Date of Decision  26 July 2005
Applicant  Self-represented
Advocate for the Respondent        Mr George Lozynsky