Noble; Secretary, Department of Family and Community Services [2000] AATA 10 (14 January 2000)

Last Updated: 21 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 10

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1999/1262

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And PAUL NOBLE

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 14 January 2000

Place Melbourne

Decision For reasons different to those delivered by the Social Security Appeals Tribunal on 4 October 1999, IT IS DECIDED that the decision to set aside the decision of the Authorised Review Officer made on 27 August 1999 be affirmed.

........Sgd. Mr J. Handley.......

Senior Member

CATCHWORDS

SOCIAL SECURITY - Newstart allowance - activity test - whether work unsuitable for the person - whether substantial number of people in same area regularly commute - decision affirmed.

Social Security Act (1991) ss. 593, 601, 601(2A) and 601(2B).

REASONS FOR DECISION

14 January 2000 Mr J. Handley, Senior Member

1. The respondent claimed Newstart Allowance ("NSA") on 18 July 1999. On 17 August 1999 his claim was rejected by the applicant on the basis that he was not prepared to travel 90 minutes to and from work on a daily basis. This decision was affirmed by an Authorised Review Officer ("ARO") on 27 August 1999 on the basis that the respondent was not "prepared to travel 90 minutes to and from work due to financial reasons". Additionally the ARO recorded that the respondent "advised an officer from the Sale office you were not interested in using public transport or possibly sharing transport to seek employment".

2. On 4 October 1999, the Social Security Appeals Tribunal ("SSAT") decided to set aside that decision and remit the matter back to the Chief Executive of Centrelink for reconsideration in accordance with the directions that Mr Noble satisfied the activity test and had done so since he claimed NSA.

3. The applicant appeals to this Tribunal seeking a review of the decision made by the SSAT on 4 October 1999.

4. The hearing was convened on 21 December 1999. Mr Noble gave his evidence by telephone. He was unrepresented. Mr Todd appeared on behalf of the applicant and called Ms Davidson, an officer in the employ of Workways Associates in Maffra. Workways is a member of the Job Network and is a recruiting agency.

Eleanor Rosemarie Davidson

5. Ms Davidson is engaged in employment counselling and seeks employment for long term unemployed persons. Her employer has offices in Maffra, Mallacoota, Orbost, Sale and Lakes Entrance.

6. Ms Davidson described Maffra as having a high number of persons who are unemployed, particularly youth. In the Maffra district, work is available in the dairy or dairy associated industries. The Murray Goulburn Dairy is the biggest employer and supports a number of associated companies in the dairy industry.

7. Ms Davidson said that the respondent's work qualifications as a boilermaker and welder would make it more likely that he would secure employment outside Maffra. She said it was unlikely that he would obtain employment in Sale because of the downturn in the oil industry and he was more likely to secure employment in either Yallourn or Traralgon.

8. Ms Davidson acknowledged that the cost of petrol to travel to Traralgon or Yallourn would be prohibitive, yet there were a number of persons who travelled daily to these regions. She also said that car-pooling would be an option for Mr Noble but he would have to locate persons with whom he could share travel and he would also need to co-ordinate departure and return times.

9. Ms Davidson said that boilermaker and welder jobs in the LaTrobe Valley were well paid. She knew of a recent case of a person who was being paid $20 per hour as a casual welder in Traralgon.

10. In her evidence Ms Davidson said that a "substantial" number of persons travel daily to Traralgon or Yallourn for work. In cross-examination by Mr Noble, Ms Davidson was unable to give an exact number of persons who travelled daily. She estimated that it would be more than 20 persons. She said that her office regularly peruses the "LaTrobe Valley Express", being a local newspaper where a number of jobs are advertised. She also said access to the Centrelink touch screen demonstrates that a number of jobs are available in the LaTrobe Valley. She said persons who enquire for employment at her office do not exclude travelling to the LaTrobe Valley for employment.

Paul Noble

11. Mr Noble is the respondent in these proceedings. He challenged the evidence of Ms Davidson. Despite her evidence that a substantial number of persons travel daily to the LaTrobe Valley for work, Mr Noble said that he recently surveyed 100 people within 5 kilometres of his home. He said only three persons travel outside Maffra. One of those persons is a school teacher who starts work at 8.30am and the other two persons work for a water commission. He said there was no-one within his survey who travelled daily to the LaTrobe Valley for work,

12. Mr Noble said that he lives approximately 3 kilometres from Boisdale, which is approximately 10 kilometres from Maffra. He said that the distance from his home to Sale would be 30 kilometres. The distance from his home to Traralgon would be 70 kilometres, being a journey of approximately three quarters of an hour and it would be 80 kilometres to Yallourn, being a journey of approximately 55 minutes. The roads are sealed but they are of poor quality. The cost of travel, he said, would be prohibitive. He estimated petrol costs associated with travelling to either Traralgon or Yallourn to be in the vicinity of $120 per week, based on current fuel prices in Maffra of 85.7 cents per litre. Public transport is not an option. There is one bus daily from Traralgon, which departs Maffra at 7.30am and returns from Traralgon at 3.30pm. He said that there is one bus daily to Sale, which leaves at 11am. Mr Noble said that the buses co-ordinate with rail timetables which are principally concerned with transporting persons from Melbourne to Gippsland. Apparently there is no bus that connects Maffra with Yallourn. In any event the times of public transport would not be of assistance to Mr Noble because boilermakers usually start work at between 6 and 7am.

13. Mr Noble said the cost of transport would be in excess of 10% of his gross wage and having regard to other debts and financial commitments he could not afford to travel to work in Traralgon on Yallourn.

14. At the present time Mr Noble is employed casually carting hay in Maffra. He has also recently worked on a dairy farm owned by his cousin and he intends to secure casual employment picking vegetables. He said that generally he is able to find casual work in his district.

The Legislation

15. Section 593 of the Social Security Act 1991 ("the Act") provides that a person is qualified to receive NSA if that person satisfies the activity test. Section 601 of the Act provides that a person satisfies the activity test if the person is actively seeking and willing to undertake paid work, other than paid work that is unsuitable to be undertaken by that person.

16. Section 601(2A) of the Act provides, for the purposes of this application, that particular paid work is unsuitable if-

"g) commuting between the person's home and the place of work would be unreasonably difficult; or

...

j) for any other reason, the work is unsuitable for the person."

17. Section 601(2B) of the Act provides that commuting is not unreasonably difficult for the purposes of s.601(2A)(g) if-

"a) the sole or principle reasons for the difficulty is that the commuting involves a journey, either from the person's home to the place of work or from the place of work to the person's home, that does not normally exceed 90 minutes in duration; or

b) in the Secretary's opinion, a substantial number of people living in the same area as the person regularly commute to their places of work in circumstances similar to those of the person."

Conclusion and Reasons for Decision

18. The SSAT concluded at paragraph 17 of their decision dated 4 October 1999-

"The Tribunal has no difficulty in accepting that Mr Noble's overall circumstances are such that the costs of travel to and from the LaTrobe Valley would place an unreasonable financial burden on him and place him in severe financial hardship. The Tribunal therefore concludes that the sole or principle reason for Mr Noble not wanting to commute to the LaTrobe Valley or Bairnsdale is not that the journey exceeds 90 minutes in duration. Accordingly, the Tribunal is satisfied that he has satisfied the activity test since the date of claiming new-start allowance and his entitlement must be assessed on this basis."

19. The distances between the applicant's home and Sale, Traralgon, Yallourn and Bairnsdale would not exceed 90 minutes duration one way, anticipating that travel on country roads would permit the applicant to travel at approximately 100 kilometres per hour. Unlike the distances likely to be travelled by city based persons over a duration of 90 minutes, this provision of the legislation - which does not distinguish between country and city based persons - could expose persons living in the country to travelling considerable distances for the purposes of satisfying the activity test. Whether that is intended or whether it is an unintended consequence is not known and is irrelevant for these purposes. Nonetheless the cost of travel for persons in rural districts can be prohibitive, having regard to the cost of petrol as was described by Mr Noble in his evidence. The legislation does not permit consideration of financial issues associated with the cost of travel and other personal debts to be taken into account when deciding whether commuting would be "unreasonably difficult". The reference in s.601(2A)(j) above to "the work is unsuitable for the person" refers to the nature of the employment, rather than the cost of travel to the employment.

20. The concentration by Mr Noble upon the cost of transport would appear to have its origin in the applicant's Policy Guide (referred to in the Statement of Case filed by Mr Todd prior to the commencement of the hearing). The Policy Guide apparently records under the sub-heading of "Reasonable commuting distance" that-

"A job would be regarded as within reasonable commuting distance if:

the journey between the place of work and the customer's home does not normally exceed 90 minutes

AND

the cost of travel does not exceed 10% of the gross wage offered."

21. I can find no reference in the legislation to the cost of travel exceeding 10% as being a relevant criteria to determine whether the activity test is satisfied. Nor can I find any reference in the Act or indeed the Policy Guide to NSA applicants being "expected to use 10%" of benefits received to look for work (refer T-4, p.11 of the documents lodged by the applicant pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")). An 'unreasonable financial burden' as found by the SSAT is also not a relevant or permissible consideration when deciding whether "particular paid work is unsuitable" within s.601(2A) of the Act.

22. I am satisfied that the basis for the decision made by the SSAT was, in the circumstances, incorrect. The T-documents are littered with references made by Mr Noble to his refusal to travel a journey that would exceed 90 minutes in duration. In fact this issue alone is an irrelevance because the employment districts of Sale, Yallourn & Traralgon are within 90 minutes of Maffra. I am satisfied, however, for reasons that follow, that the decision of the SSAT - although for different reasons - should be affirmed.

23. Section 601(2B) of the Act determines whether commuting is not unreasonably difficult by reference either to the duration of the journey or because a substantial number of persons "living in the same area as the person regularly commute to their places of work in circumstances similar to those of the person".

24. Despite the inelegance of the language used in that part of the sub-section it would appear that its intent is to demonstrate that if a substantial number of persons who live in the same district as an applicant for NSA are prepared to regularly commute that it would not in the circumstances be "unreasonably difficult" for a NSA applicant to also commute.

25. Ms Davidson said that a substantial number of persons commute to Traralgon but when pressed she said that she estimated that number to be in the vicinity of 20 to 30 persons. When reference was made to the relative population of Maffra being 4000 persons, she said that she used the word "substantial" not by reference to numbers but by reference to commuting being "not uncommon".

26. Mr Noble said that he privately surveyed 100 people within five kilometres of his home and found three persons who travelled, but none that travelled to the LaTrobe Valley. Yallourn and Traralgon are in the LaTrobe Valley. Sale, in the circumstances, was not regarded as being an appropriate venue, having regard to the absence of employment opportunities for boilermaker and welders.

27. A common everyday meaning given to the word "substantial" requires reference to relevant numbers or quantities. It cannot mean something that is not "uncommon". That 20 to 30 persons from Maffra travel to Traralgon from a population of 4000 could not, in my view, be regarded as being substantial. That evidence in any event conflicts with a survey conducted by Mr Noble where he made enquiries of 100 people within 5 kilometres of his home and found that none commuted.

28. In all of the circumstances I could not be satisfied as a fact that a "substantial number of persons living in the same area as (Mr Noble) regularly commute to their places of work". Whether a "substantial number of people" do not commute because of issues associated with distance, cost or absence of employment is not for determination here.

29. Having regard to the disjunctive construction of s.601(2B) of the Act I am satisfied that commuting in the circumstances of this application - having regard to the domicile of Mr Noble - would be unreasonably difficult because I can not be satisfied that a substantial number of persons living in the same area as Mr Noble regularly commute to their place of work.

30. In those circumstances I am satisfied that the paid work described by Ms Davidson as being available in the LaTrobe Valley is "unsuitable" within the meaning of s.601(2A) of the Act and in those circumstances, although Mr Noble is actively seeking and willing to undertake paid work, he has not offended the activity test at s.601 of the Act, as the paid work is "unsuitable".

31. In all of the circumstances but for different reasons, I am satisfied that the decision of the SSAT should be affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: .....Carolyn Irons ........................................

Secretary

Date/s of Hearing 21 December 1999

Date of Decision 14 January 2000

Counsel for the Applicant Michael Todd

Solicitor for the Applicant

Counsel for the Respondent self-represented

Solicitor for the Respondent