Ahgee; Department of Family and Community Services
[2001] AATA 96
•6 February 2001
DECISION AND ORAL REASONS FOR DECISION [2001] AATA 96
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/238
GENERAL ADMINISTRATIVE DIVISION )
Re Secretary, Department of Family and Community Services
Applicant
And Shane Ahgee
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date6 February 2001
PlaceAdelaide
Decision For the reasons given orally at the hearing of this matter the Tribunal sets aside the decision under review, and in substitution therefor decides that the respondent failed to attend an interview on 16 February 2000 in breach of section 630C of the Social Security Act, 1991, and that an administrative breach rate reduction period of his Newstart Allowance applies from 16 February 2000 to 16 May 2000.
(Signed)
W J F PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance – Respondent did not check mail regularly while job searching in Adelaide - whether the respondent had a reasonable excuse for not complying with a request to attend an interview - whether an administrative breach rate reduction period should apply.
Social Security Act, 1991 s630C
Re Browne and Secretary, Department of Employment, Education, Training and Youth Affairs (1997) 45 ALD 329
ORAL REASONS FOR DECISION
6 February 2001 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 11 May 2000, which set aside the decision of an Authorised Review Officer of 3 March 2000, to apply an administrative breach rate reduction period to the respondent's Newstart Allowance for failure to attend an interview at Centrelink's Mildura office in the State of Victoria on 16 February 2000.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with an exhibit tendered by the applicant (the Department). Mr Underwood represented the Department and called Ms Greenwood, a Departmental officer, as a witness. The respondent was served by Registered Mail with notice of the Hearing and the matter proceeded in his absence.
The respondent has been in receipt of Social Security benefits since 1991, and a recipient of Newstart Allowance throughout 1999 and 2000. He has been a participant in intensive assistance with Employment National, since late 1998 and in March 1999 his Activity Agreement was reviewed. He resided in Mildura until 29 January 2000, and then came to Adelaide temporarily, to look for work.
On 10 January 2000, the respondent lodged his fortnightly Newstart Allowance form at Centrelink's Mildura office and obtained forms for the period 11 January 2000 – 24 January 2000. He lodged this next form on 24 January 2000, at Centrelink's Norwood office in the State of South Australia. On 7 February 2000, he lodged the form for the period 25 January 2000 to 7 February 2000 at Norwood. On 3 February 2000, Centrelink sent a letter to the respondent's postal address in Mildura, notifying him that an interview had been scheduled for 16 February 2000 at 2.00 p.m., at the Mildura office of Centrelink in order to discuss new employment assistance services that were available through Job Network. The respondent did not attend the scheduled interview.
On 16 February 2000, the delegate determined that the respondent had failed to attend an agency office interview, and applied an administrative breach rate reduction for the period 16 February 2000 to 16 May 2000, pursuant to section 630C of the Social Security Act, 1991, (the Act) which provides :-
"Secretary may require a person to attend the Agency
630C.(1) Where:(a) a person (other than a person who is not required to satisfy the activity test) is receiving, or has lodged a claim for, a newstart allowance; and
(b) the Secretary is of the opinion that the person should:
(i) attend an office of the Agency; or
(ii) contact the Agency; or
(iia) attend a particular place for a particular purpose; or
(iii) give information to the Secretary; and(c) the Secretary notifies the person that the person is required to:
(i) attend that office; or
(ii) contact the Agency; or
(iia) attend the place nominated by the Secretary for the purpose specified in the notice; or
(iii) give that information; and(d) the requirement is reasonable; and
(e) the person does not comply with the requirement;subsection (1A) applies to the person.
…
630C.(1A) If this subsection applies to a person:(a) a newstart allowance is not payable to the person; and
(b) if, at a later time, a newstart allowance becomes payable to the person – an administrative breach rate reduction period applies to the person.630C.(2) The Secretary may notify a person for the purposes of subsection (1) by sending a notice addressed to the person by pre-paid post to the postal address of the person last known to the Secretary. This subsection does not prevent the Secretary from notifying the person in any other way.
630C.(3) The Secretary may determine that:
(a) a newstart allowance is payable to a person that was not payable under paragraph (1A)(a); and
(b) an administrative breach rate reduction period does not apply to a person under paragraph (1A)(b);if the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement under subsection (1)."
The rate reduction applied was 16 per cent, the maximum basic rate, in accordance with section 644H of the Act. The respondent was notified of this decision by letter dated 16 February 2000, which was forwarded to his postal address in Mildura.
On 21 February 2000, the respondent attended Centrelink's Norwood office, lodged a fresh application for Newstart Allowance, and advised of his new permanent residential address at Burnside, in South Australia. On 22 February 2000, he telephoned the Norwood branch regarding the delegate's decision, and on 3 March 2000, an Authorised Review Officer affirmed the decision.
On 11 May 2000 the SSAT set aside the decision. It accepted the respondent's evidence that he spoke to a Centrelink officer in Mildura about his intention to go to Adelaide to seek work, and that he was told that he did not need to provide Centrelink with a new address for the first six weeks, and he could lodge his Newstart Allowance forms at the Centrelink office closest to where he was living. He thought that the Centrelink Officer made a note that he was in Adelaide, and he could not be contacted during the first six weeks. The SSAT, in the course of its Reasons for Decision stated at page 7 that it could:-
"… understand Mr Ahgee's assumption that if he did not need to advise Centrelink of a forwarding address for the first six weeks, and Centrelink knew that he was not in Mildura, he would not be receiving correspondence from Centrelink during the first six weeks." (T2/9)
The Department has applied to this Tribunal for review of the SSAT decision, and contends that the respondent did not provide a reasonable excuse for not attending the interview, thus sub-section 630C(3) of the Act does not apply in this case. The letter sent to the respondent dated 3 February 2000, contained a reasonable requirement for him to attend the Centrelink Mildura office on 16 February 2000, to discuss employment assistance. The respondent's excuse that he did not receive the above letter is not reasonable in the circumstances.
The Department submitted also that the respondent failed to institute a reliable method for checking the mail at his usual postal address whilst he was away. His postal box was leased by another person, and he told the SSAT that his only effort to check whether he had any mail was to ask, on one occasion, the brother of the person leasing the post office box. He at no time contacted the person leasing the post office box.
The Department called Ms Greenwood who now resides in Adelaide. From January 1991 until May 2000 she was a Customer Services Officer at Centrelink's Mildura office. She attended the respondent on 10 January 2000, and entered information into the computer records, but has no independent recollection of the conversation. She said it was her usual practice to advise customers that if they are to be absent from Mildura (which is regarded as a remote area) they could lodge two fortnightly forms at any Centrelink office, but that the third form must be lodged at Mildura, or Centrelink advised of a change of address. She also emphasizes on each occasion these situations arise, the importance of having someone check the mail box, as in her experience, regular correspondence from Centrelink or the Job Assistance agencies is a weekly occurrence. I accept Ms Greenwood's evidence, and am satisfied that this is the advice given to the respondent.
The documentary evidence discloses that, although the respondent has had three changes of residential addresses in Mildura, between 1991 and 2000, he has since 31 December 1991 and until 13 February 2000 (a period in excess of eight years) had the same postal address, namely a Post Office box in Mildura. The same postal address he maintained for a period between 6 December 1995 and 27 May 1997, when the Department's records of his residential address reads "No fixed address" (T7/23).
The question in this matter is whether the respondent had a reasonable excuse for not complying with the request to attend an interview. As Deputy President Forgie said in Re Browne and Secretary, Department of Employment, Education, Training and Youth Affairs (1997) 45 ALD 329 at 333:-
"Whether his failure is reasonable or not depends not simply upon an examination of the ultimate reason for his failure (ie lack of knowledge) but also upon how the ultimate reason came to pass (ie how he came to have that lack of knowledge). That is to say, while it is possible that a person's lack of knowledge about a particular obligation he or she has may be reasonable, whether or not it is so reasonable depends upon an examination of the circumstances leading to his or her not knowing of his or her obligation. "
In this matter I am not satisfied that it was reasonable that the respondent did not know of the time and date of the interview because of non-receipt of the letter of 3 February 2000. He was advised by Ms Greenwood to ensure the mail was checked during his absence. He had previous experience of receiving mail at a postal address, over a two-year period, when he had no fixed residential address. In my view he was reckless and indifferent to the requirements of the relevant legislation.
For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the respondent failed to attend an interview on 16 February 2000, in breach of section 630C of the Social Security Act, 1991, and that an administrative breach rate reduction period of his Newstart Allowance applies from 16 February 2000 to 16 May 2000.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed: .....................................................................................
Personal Assistant
Date/s of Hearing 6 February 2001
Date of Decision 6 February 2001
Counsel for the Applicant Mr J Underwood
Solicitor for the Applicant Centrelink
Counsel for the Respondent No Appearance
Solicitor for the Respondent -
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