Editors --- "Mobility allowance: meaning of voluntary work; applying policy" [2010] SocSecRpr 52; (2010) 12(4) Social Security Reporter, Article 7

• HOLROYD and SECRETARY TO THE DEEWR
• Background
• The legislation
• The issues
• The evidence
• Consideration
• Formal decision

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Mobility allowance: meaning of voluntary work; applying policy

HOLROYD and SECRETARY TO THE DEEWR

(2010/0638)

Decided: 25th August 2010 by M. J. Carstairs

Background

Holroyd sought review of a decision by Centrelink to cancel her mobility allowance. She had sought the allowance on the basis of her voluntary work caring for children placed with her under a Queensland Department of Communities (Child Safety Services) programme.

The legislation

Qualification for mobility allowance is set out in s.1035 of theSocial Security Act 1991 (the Act) and voluntary work is defined in s.1035(3) of the Act as follows: ‘work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations’.

The issues

The Tribunal noted that the parties agreed that the other qualifying criteria were satisfied by Holroyd as contained in

s.1035(1)(f) of the Act namely she was disabled and she was unable to use public transport due to her disability. The issue before the Tribunal was whether Holroyd, when undertaking foster caring for the Queensland Department of Communities, was undertaking ‘work approved by the Secretary’ for a ‘charitable, welfare or community’ organisation.

The evidence

Holroyd told the Tribunal that the Queensland Government paid her an allowance as reimbursement for the costs associated with the care she provided. These payments were excluded as assessable income under the Income Tax Assessment Act 1936. Holroyd told the Tribunal that the Queensland Government did not reimburse her for travel costs.

Consideration

The Tribunal noted that the definition of voluntary work started with the phrase ‘work approved by the Secretary’ which had the effect of referring decision makers to relevant policy considerations and therefore to the relevant section of the Guide to Social Security Law (the Guide) at paragraph 3.6.6.53. The relevant part of the guide required that the ‘work’ be:

performed for a charitable, welfare or community organisation run on a not-for-profit basis with the objective of providing services or assistance to the community (see examples), ...

Examples:

Charitable or welfare organisations include the Salvation Army, Meals on Wheels and Society of St Vincent de Paul.

Some churches/religious organisations also provide services and assistance to the community and can be considered charitable or welfare organisations. Services and assistance such as grief counselling, counselling for the ill and their families, assistance to ill or elderly people, provision of emergency relief/food parcels, or fund raising for charitable works can be considered as qualifying voluntary work. ...

Community organisations include sporting associations, schools and service clubs such as Rotary, Apex and Lions.

The Tribunal noted that there were no other, more formal, approvals by the Secretary specifying particular categories of voluntary work. It then referred to the issues addressed by the President of the Tribunal, Downes J, in Strauss and Secretary, Department of Family and Community Services [2005] AATA 608; (2005) 88 ALD 176 who pointed to the importance of correctly characterising which powers were being exercised when a Tribunal came to review a decision. He noted that a number of powers the Secretary exercises relate to formulating guidelines and ‘must be distinguished from the ordinary decision-making that much of the Act requires’. In this case the Tribunal noted that as the content of the phrase ‘work approved by the Secretary’ was to be found in the Guide this ‘definition’ was not subject to review by the Tribunal. The Tribunal noted that whilst it was not bound to apply policy guidelines it would usually do so unless there were cogent reasons for not doing so and referred to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645, and to the decision of the Full Federal Court inHneidi and Others v Minister for Immigration and Citizenship (2010) [2010] FCAFC 20; 182 FCR 115.

On behalf of Holroyd it was submitted that the Department of Communities fitted within the definition of a ‘charitable, welfare or community organisation run on a not-for-profit basis’ however the Tribunal did not agree, noting that to be a not-for-profit organisation meant that any profit or surplus must be used to further the organisation’s purposes, and not be distributed to owners, members or any other individual or group of individuals. The Tribunal noted that such organisations are by their nature non-government organisations. It concluded that a government department could not be described as a ‘not-for-profit organisation’.

The Tribunal was not assisted by a submission on behalf of Holroyd that ‘community organisation’ was defined in a number of State acts to include public authorities and their agencies. The Tribunal stated that the word ‘community’ had to take its meaning from the words around it. In s.1035(3) it is part of the composite expression ‘charitable, welfare or community’, the common element of which is that they are not-for-profit which the Tribunal considered was consistent with the interpretation placed on it by the Secretary, set out in the Guide.

The Tribunal accepted that the Act is beneficial legislation and should be interpreted accordingly but noted that when interpreting beneficial provisions the interpretation had to be open on the actual language used and in this case, the definition of ‘voluntary work’ could not be given the interpretation argued for by Holroyd.

Holroyd’s representative referred to the Explanatory Memorandum to the amending Act, which had only mentioned one kind of exclusion, namely that ‘voluntary work’ was not to cover people who merely were providing unpaid work to family, relatives or friends. However the Tribunal noted that the explanatory material did not give any guidance to interpreting the meaning of ‘organisations’ in the definition of ‘voluntary work’.

Finally it was submitted that it would be illogical if Holroyd was qualified for mobility allowance as a foster carer under the auspices of a charity or a religious group, but not when doing the same work for the State Government. The Tribunal took the view that it was the result intended by Parliament.

Formal decision

The decision under review was affirmed.

[C.E.]