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

1. 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.

2. 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 three years and pertains to decisions made by Centrelink nearly four years and three years ago respectively.

3. However, subsection 9(d) of the Administrative Review Tribunal Act 2024 provides that it is an objective of the Tribunal to improve the transparency and quality of government decision making.  Having regard to this objective, and the circumstances in which the Secretary has now essentially conceded the matter, I consider it is necessary to articulate, record and publish the concerns I expressed to the Secretary’s representative at the first hearing in this matter on 14 May 2025.  That hearing unfortunately was abandoned because the documentary evidence before the Tribunal was not in a fit state for the matter to proceed by telephone. 

4. During the period the documentary evidence was being put into order and while the parties awaited the resumption of the hearing, I understand the Secretary has reflected on the observations I had made and this has led to the Secretary proposing the terms of agreement.

5. Without reaching any concluded view, or expressing any findings, I have set out below an expanded version of the observations raised with the parties so that the concerns I have raised will not vanish upon the making of the proposed agreed decision.

6. There are two decisions under review in these proceedings, each a rejection of a claim made by Mr ZKDJ for mobility allowance.

7. Relevantly to Mr ZKDJ’s circumstances, qualification for mobility allowance required satisfaction of paragraph 1035(1)(b)(ii) of the Social Security Act 1991 (the Act) (among other things).  That paragraph required that at the time of Mr ZKDJ’s respective claims, Mr ZKDJ be ‘undertaking vocational training’.

8. As to ‘undertaking’, I reach no findings as to whether the evidence before the Tribunal is capable of demonstrating that Mr ZKDJ was ‘undertaking’ anything in particular at the time of his applications.  I do not seek to put into question the Secretary’s proposal to settle the matter by an agreed decision as that is a matter for the Secretary.  It is sufficient to illustrate what I develop below that it be noted that Mr ZKDJ was at least enrolled in either a Certificate III in Business Administration or a Certificate III in Events at TAFE NSW at material times.

9. As to ‘vocational training’, subsection 1035(3) of the Act provides that it means vocational training within the meaning of section 19 of the Act (other than training provided as part of a rehabilitation program or follow up program under Part III of the Disability Services Act 1986).

10. Section 19 of the Act is headed ‘mobility allowance definitions’ and provides that in the Act, unless the contrary intention appears, ‘vocational training’ includes training for a profession or occupation and, where used in Part 2.21 (the Part where the qualification criteria for mobility allowance are contained) also includes training known as independent living skills or life skills training.

11. The ordinary meaning of the word ‘vocational’, I note, is ‘of or relating to an occupation or training’ or ‘(of education or training) directed at a particular occupation and its skills’.[1]

    [1] The Australian Concise Oxford Dictionary 1992 ed

12. The authorised review officer’s decision, the decision of the Administrative Appeals Tribunal at tier 1, and the Secretary’s written statement of facts, issues and contentions all refer to Departmental policy in the Social Security Guide.  Most relevant to illustrate the issue raised with the parties on 14 May 2025 is the following extract from item ‘3.6.6.50 Assessment of vocational training for standard rate MOB’:

    Vocational training

    Vocational training (1.1.V.60) assists the recipient to find gainful employment (1.1.G.10) or to carry on a profession, trade or business. Training courses are only accepted as vocational training if the following conditions are satisfied:

    • the course will assist the recipient gain independent living skills or life skills training which aids in gainful employment, OR
    • it is more likely than not that the course will assist the recipient to find gainful employment, AND
    • the recipient has the physical and intellectual ability to undertake gainful employment, AND
    • the recipient intends to engage in gainful employment at the end of the training course.

13. To illustrate the point, the Secretary’s former contentions asked the Tribunal to conclude that the evidence in the matter did not demonstrate (among other things) that it was more likely than not  that  [either of the courses] will assist the applicant find gainful employment and the applicant did not intend to engage in gainful employment, and therefore the criteria under section 1035 of the Act were not satisfied.

14. As posed to the parties on 14 May 2025, there seemed to me to be a real question as to whether the additional matters contained in the Departmental policy at item 3.6.6.50 forming the basis of the Secretary’s previous contentions were matters in addition to the matters relevantly identified in the legislation.

15. In Green v Daniels [1977] HCA 18, the Court was similarly considering statutory criteria for the grant of a social security benefit including a criterion that required the Director General to be satisfied that that an applicant was unemployed (among other related matters).

16. The question before the Court in that matter was whether the Director General had wrongly precluded himself from being so satisfied by inflexible application of a policy that required school leavers not to be treated as qualifying for benefits until the end of the school holidays.

17. The Court identified a further question as to whether the policy revealed an attempted substitution of inconsistent departmental criteria for those which Parliament has enacted as appropriate to qualify an applicant for unemployment benefit.

18. The Court found that the statutory criteria that a person be unemployed (and related criteria) had superimposed upon them, by policy, a requirement which prevents them from being satisfied.

19. The Court distinguished the situation from the situation faced by [decision makers] which in the exercise of discretionary powers to grant or refuse licenses (for example) may give effect to some general policy that they see as desirable.  The Court noted that no general discretion was conferred by the criteria in question, instead they were specific criteria laid down by the Act and all that was left for the Director General to do is decide if he attained the state of satisfaction that the circumstances exist to which each of the criteria refer.  The Court accepted that the Director general could issue instructions for the benefit of his delegates indicating what might be regarded as justifying such a state of satisfaction, but if in the course of doing so he issues instructions inconsistent with a proper observance of the statutory criteria he acts unlawfully.[2]

    [2] [28]

20. Both the Secretary’s former contentions and the decision of the AAT cite the principle in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 to the effect that the Tribunal is not bound by government policy, but must take it into account and will usually follow it unless there are cogent reasons not to do so.

21. Mortimer J (as Her Honour then was) in G v Minister for Immigration and Border Protection [2018] FCA 1229 warned against the formulaic and possibly inaccurate incantation of the principle in Drake in the matter then before her.[3] There is nothing in the principles espoused in Drake that contradict the proposition that it is impermissible for Departmental policy to introduce new matters decision makers must be satisfied of that are inconsistent with the proper observance of the statutory criteria.

    [3] [120]-[122]  (A limited appeal was allowed against Her Honour’s orders in Minister v Home Affairs v G [2019] FCAFC 79 that does not detract from the force of her observations on this point)

22. As to whether the matters identified in item 3.6.6.50 of the Social Security Guide in fact attempt to introduce impermissible matters inconsistent with a proper observance of the statutory criteria is not something it is appropriate for me to purport to conclusively determine.  Nor is it appropriate for me to conclusively say how I would have approached that issue if I had been called upon to complete the review in the ordinary way and decide whether matters such as the likelihood of Mr ZKDJ obtaining employment or Mr ZKDJ’s intention to do so were a relevant or irrelevant consideration in being satisfied that he was ‘undertaking vocational training’.  Given the Secretary has proposed that the matter be resolved with an agreed decision, it is merely appropriate that that I record and publish that I consider there to be a very real question in that regard.

23. Matters that have considered section 1035 of the Act do not appear to have fully engaged with that issue[4], although I note the Secretary’s reference to Jin v Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 461 which reflected only on item 1.1.V.60 of the Guide, and found that the applicant was not undertaking vocational training because of a lack of evidence of a requirement for a PhD qualification in his area of interest. Indeed, an issue may well be whether, as a matter of construction, an assessment of whether a person is undertaking vocational training requires focus on the nature of the training or on the purpose of the training for an individual applicant so that a particular course of education might be vocational training for one person, but not for another.

    [4] Re Drummond and SDFaCS [2003] AATA 526, Re Koutelas and SDEEWR [2010] AATA 501 and Re Maklenovich and SDEEWR [2011] AATA 148 are identified in Sutherland and Anforth Social Security and Family Assistance Law 4^th Ed. Page 421-422.

24. The legislative history of the provision is also of interest, and I am grateful to the Secretary’s representative in taking me through that history. 

25. In summary, the antecedent of the current provision contained a requirement that a person be undertaking vocational training “being training that in the opinion of the Director-General… will assist the person to find gainful employment (including sheltered employment) or to carry on a profession, trade or business”.[5] 

    [5] Section 133RB of the Social Security Act 1947 introduced by the Social Security Legislation Amendment Act 1982

26. The recourse to the opinion of the Director-General as to whether a course will assist a person to find gainful employment etc. was removed in the amendments of the Family and Community Services Legislation Amendment Act 2003 which essentially introduced the current statutory regime which does not invite the formation of an opinion by a decision maker, rather an assessment as to satisfaction of whether the criteria is met.  The Secretary’s representative drew attention to the Explanatory Memorandum to the Family and Community Services Legislation Amendment Bill 2002 which is silent on why that was done, with it being argued that perhaps an inference to draw is that no substantial policy change was intended.

27. I acknowledge the indication on behalf of the Secretary that my concerns about the policy potentially impermissibly imposing additional matters in excess of the statutory criteria are being considered, and accept that the matter may not necessarily appear to be as straightforward as it might appear. 

28. 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.

    DECISION

    BY 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.