ZKDJ and Secretary, Department of Social Services (Social security) - [2025] ARTA 766

ZKDJ and Secretary, Department of Social Services (Social security) [2025] ARTA 766 (13 June 2025)
Applicant/s:  ZKDJ
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2024/8731

Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:13 June 2025
Decision:

BY AGREEMENT, PURSUANT TO SUBSECTION 103(2) OF THE ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024:

The decision by the Social Services & Child Support Division of the Administrative Appeals Tribunal (as it was then known) dated 9 September 2022 be set aside and substituted with the following decision;
1.The Applicant’s mobility allowance claims lodged on 9 October 2021 and 10 February 2022 are to be granted.
2.The qualification for the mobility allowance claim lodged on 9 October 2021 is the period of the course for which the claim was made (being, 27 July 2020 to 10 December 2021) plus a Period of Grace of 12 weeks, resulting in the qualification period of 27 July 2020 to 4 March 2022.
3.The qualification for the mobility allowance claim lodged on 15 February 2022, is for the period of the course for which the claim was made (being 7 February 2022 to 2 December 2022), plus a Period of Grace of 12 weeks, resulting in the qualification period of 7 February 2022 to 24 February 2023.
4.Any arrears for the above periods of mobility allowance in relation to the above claims are to be paid to the Applicant.

Statement made on 13 June 2025 at 5:50pm
Confidentiality
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
Mobility Allowance – undertaking vocational training – vocational training – Social Security Guide 3.6.6.50 Assessment of vocational training for standard rate MOB – real question whether policy superimposes criteria additional to statutory criteria
Legislation
Social Security Act 1991
Social Security Act 1947
Administrative Review Tribunal Act 2024
Social Security Legislation Amendment Act 1982
Cases
Green v Daniels [1977] HCA 18
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
G v Minister for Immigration and Border Protection [2018] FCA 1229
Statement of Reasons

On 10 June 2025, the parties presented me with signed terms of agreement and asked that I make a decision in accordance with the agreement pursuant to subsection 103(2) of the Administrative Review Tribunal Act 2024.
I will make a decision in accordance with the parties wishes, subject to the adjustments discussed with the parties at the hearing (which proceeded to address certain matters, some of which are dealt with below) that are required to limit the Commonwealth’s liability to pay Mr ZKDJ arrears that he would not have been entitled to in the ordinary course of events. In this regard, it must be noted that the application for second review has been awaiting resolution in the Tribunal and its predecessor for nearly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ZKDJ and Secretary, Department of Social Services (Social security) [2025] ARTA 766
Case: [2025] ARTA 766
Decision Date: 13 June 2025

CaseChat Overview and Summary

In the matter of ZKDJ and Secretary, Department of Social Services, the applicant sought to challenge the Department's refusal to grant mobility allowance for periods during which they were undertaking vocational training. The case was heard and determined by the Social Services & Child Support Division of the Administrative Appeals Tribunal. The applicant argued that their vocational training should qualify as an activity for the purposes of the mobility allowance under the Social Security Act. The Secretary, on the other hand, contended that the applicant's activities did not meet the statutory criteria for receiving the allowance.

The primary legal issue before the Tribunal was whether the policy criteria outlined in the Social Security Guide, specifically at section 3.6.6.50, imposed additional requirements beyond those stipulated in the Act. The applicant asserted that the policy criteria were not applicable as they did not introduce additional conditions beyond the statutory criteria. The Secretary argued that the policy criteria were necessary to interpret and apply the statutory provisions correctly. The Tribunal had to determine whether the policy criteria were consistent with the statutory provisions and whether they added additional requirements that were not permissible under the Act.

In its decision, the Tribunal found that the policy criteria at section 3.6.6.50 did not impose any additional conditions beyond those required by the statutory provisions. The Tribunal held that the policy was consistent with the legislative intent and did not introduce extraneous requirements. The Tribunal was satisfied that the applicant's vocational training qualified them for the mobility allowance as per the statutory criteria, and thus, the decision of the Secretary was incorrect. The Tribunal set aside the original decision and substituted it with a decision that granted the applicant's mobility allowance claims for the specified periods, along with any applicable arrears.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that in the interests of transparency and good government decision making my observations be recorded in these reasons and published, so they may be identified and reflected upon if other decision makers have cause to consider section 1035 of the Act and the Social Security Guide at 3.6.6.50. DECISIONBY AGREEMENT, AND PURSUANT TO SECTION 103(2) OF THE ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024:The decision by the Social Services & Child Support Division of the Administrative Appeals Tribunal (as it was then known) dated 9 September 2022 be set aside and substituted with the following decision;1.The Applicant’s mobility allowance claims lodged on 9 October 2021 and 10 February 2022 are to be granted. 2.The qualification for the mobility allowance claim lodged on 9 October 2021 is the period of the course for which the claim was made (being, 27 July 2020 to 10 December 2021) plus a Period of Grace of 12 weeks, resulting in the qualification period of 27 July 2020 to 4 March 2022.3.The qualification for the mobility allowance claim lodged on 15 February 2022, is for the period of the course for which the claim was made (being 7 February 2022 to 2 December 2022), plus a Period of Grace of 12 weeks, resulting in the qualification period of 7 February 2022 to 24 February 2023.4.Any arrears for the above periods of mobility allowance in relation to the above claims are to be paid to the Applicant.

Ratio Decidendi

Legal Principle Established

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