Editors --- "Mobility allowance: travel test" [2011] SocSecRpr 25; (2011) 13(3) Social Security Reporter, Article 6

• MAKLENOVICH and SECRETARY TO THE DEEWR
• Background
• The issue and the law
• The evidence
• Considerations and conclusion
• Formal decision

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Mobility allowance: travel test

MAKLENOVICH and SECRETARY TO THE DEEWR

(2011/148)

Decided: 7th March 2011 by N. Isenberg

Background

Maklenovich received disability support pension and claimed mobility allowance on 12 March 2010.

In support of his claim, a medical report stated that Maklenovich had moderate difficulty ‘standing in bus, train, etc’ and that he had moderately limited ‘social skills e.g. ability to relate to bus drivers or public’. In addition, he had ‘difficulty in attending education activities as lack of available transport’.

His claim was rejected by Centrelink and this decision was affirmed by the SSAT.

The issue and the law

Mobility allowance can be paid where the criteria in ss.1035 (1) and (2) are met. The relevant parts of these subsections state as follows:

Section 1035:

(1) A person is qualified for a mobility allowance ... if the person satisfies the travel test set out in subsection (2) and:...

(b) all of the following apply:

(i) the person is a handicapped person;

(ii)the person is undertaking vocational training;

(iii)the Secretary is of the opinion that:

(A) the person is unable to use public transport without substantial assistance, either permanently or for an extended period; and

(B) the person’s inability to use public transport without substantial assistance is due to the person’s physical or mental disability; and

(C) the person is undertaking the vocational training for at least 32 hours in every 4 weeks on a continuing basis;

(iv) the person is an Australian resident; or ...

(g) all of the following apply:

(i) the person is a handicapped person;

(ii) the Secretary is of the opinion that:

(A) the person is unable to use public transport without substantial assistance, either permanently or for an extended period; and

(B) the person’s inability to use public transport without substantial assistance is due to the person’s physical or mental disability;

(iii) the Secretary is of the opinion that the person is undertaking a combination of any 2 or more 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;

the person is an Australian resident; or

(2) A person satisfies the travel test mentioned in subsection (1) if the person is required to travel to and from the person’s home for the purpose of undertaking:

(a) gainful employment; or

(b) vocational training; or

(c) job search activities; or

(d) voluntary work; or

(e) a vocational rehabilitation program.

Under schedule 2, clause 4 of the Social Security (Administration) Act 1999 the time to consider a person’s entitlement is 13 weeks after the claim.

The question in this case was whether Maklenovich:

• was unable to use public transport without substantial assistance, either permanently or for an extended period; and

• was undertaking a combination of vocational training and voluntary work for at least 32 hours in every 4 weeks on a continuing basis.

The evidence

Maklenovich’s evidence was that he suffered from panic attacks and that his triggers were not predictable. He took medication to manage this, however this made him groggy and he was unable to study for the next day.

If he did not have the medication he had to get off the bus and catch a taxi. The same problems occurred with train travel.

He further stated that he did voluntary work and vocational training for at least 32 hours per four weeks. His TAFE course was 7.5 hours per week and he attended another financial management course for two hours per week. The financial management course had not been assessed by Centrelink for mobility allowance purposes.

His volunteer work was for about two-three hours per day – once or twice a week. The Salvation Army attendance book did not support this assertion, but Maklenovich said that he had not been asked to sign this book.

Considerations and conclusion

In relation to the first issue, the Tribunal accepted that the panic attacks were unpredictable (this was not contested) and that the medication he used constituted ‘assistance’ for the purpose of the legislation. It was also accepted that his condition was permanent, based on a job capacity assessment. Therefore sub section 1053(1)(iii)A was met.

In relation to the second issue, Centrelink argued:

1. that the financial management course had not been approved for mobility allowance purposes.

2. that his volunteer work was not substantiated.

3. that the work carried out was not approved as required by the Guide to Social Security Law.

The Tribunal concluded that while the course was not approved, it was for vocational purposes and that Maklenovich attended the course for 8 hours per four weeks.

In relation to the work carried out by Maklenovich, the Tribunal accepted his evidence in relation to his attendance and concluded that while this work was not approved (as required by the Guide), the Guide was not binding where there are cogent reasons for not following the Guide (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 at 416-417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at 86). The Tribunal stated: ‘This case, in my view, is one where application of the Guide does not necessarily lead to a fair result, in circumstances where Centrelink has, even now, taken no steps to consider whether the activities were appropriate or not.’

In summing up, the Tribunal found that Maklenovich satisfied the ‘hours test’ between 3 June and 24 August 2010 and was therefore entitled to mobility allowance for this period.

Formal decision

The AAT set aside the decision under review and decided that Maklenovich was qualified for mobility allowance for the period 3 June to 24 August 2010.

[R.P.]