Alderton; Secretary, Department of Family and Community Services and - [2001] AATA 208

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2001] AATA 208

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº N99/1682

GENERAL ADMINISTRATIVE DIVISION)

Re: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES

Applicant

And: LISA ALDERTON

Respondent

And: SECRETARY TO THE
DEPARTMENT OF EMPLOYMENT,
WORKPLACE RELATIONS
AND SMALL BUSINESS

Party Joined

DECISION

Tribunal: Mrs H.E. Hallowes, Senior Member

Date: 20 March 2001

Place: Sydney

Decision:The decision under review is set aside. The matter is remitted to the Secretary to the Department of Family and Community Services for reconsideration in accordance with directions that Ms Alderton failed to take reasonable steps to comply with her Newstart Activity Agreement on 3 June 1999 and she therefore did not satisfy the activity test under paragraph 593(1)(b) of the Social Security Act 1991 ("the Act"). It was Ms Alderton's second activity test breach and an activity test breach rate reduction period applies to Ms Alderton under subsection 626(1A) of the Act.

(sgd) H.E. Hallowes
Senior Member

SOCIAL SECURITY — newstart allowance — Newstart Activity Agreement — whether agreement in a form approved by the Employment Secretary — whether an agreement between respondent and the Secretary — whether failure to comply with activity test — whether second or third activity test breach — importance of each decision‑maker in the matter satisfying themselves that all relevant provisions of the Social Security Act 1991 have been complied with — errors which may occur in full documentation is not before decision‑maker — cost involved

Administrative Appeals Tribunal Act 1975ss.30(1A), 37

Social Security Act 1991 ss.23(1), 593(1), 601, 604, 605, 606, 626(1), 630A, 644A,

644AE, 1247(1), (1A), 1299

Social Security (Administration) Act 1999 s.254

Acts Interpretation Act 1901 s.19B

REASONS FOR DECISION

20 March 2001 Mrs H.E. Hallowes, Senior Member

On 3 November 1999 the Secretary to the Department of Family and Community Services ("the Secretary") ("the department") lodged an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 30 September 1999.    By Act Nº 192 of 1999, the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999, commencing so far as relevant on 20 March 2000, Chapter 6 of the Social Security Act 1991 ("the Act") was repealed and new provisions with respect to applications for review of decisions of the SSAT came into effect under Division 5 of Act Nº 191 of 1999 the Social Security (Administration) Act 1999 ("the Administration Act"). Section 254 of the Administration Act provides:
254(1)     If:
(a)a person made an application under section 1283 of the 1991 Act before 20 March 2000; and
(b)the application was not determined before 20 March 2000;
the application has effect, on and from 20 March 2000, as if it were an application under section 179 of this Act.
(2)          The date of effect of the decision made in response to the application may be before 20 March 2000.

(3) If:
(a)subsection (1) applies to an application; and
(b)the date of effect of the decision made in response to the application is before 20 March 2000;

the decision has effect, for the period that starts on the date of effect of the decision and ends on 19 March 2000, as if it were a decision made under the 1991 Act.

The person referred to in paragraph 254(1)(a) for the purpose of this application is the Secretary.

The SSAT, in its reasons for decision, noted that it was reviewing a decision of a delegate of the Secretary made on 13 July 1999 "to impose a breach and a non‑payment period because Ms Alderton did not comply with the terms of her activity agreement" (T2). The SSAT noted that that decision had been affirmed by an authorised review officer ("ARO") on 29 July 1999.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") ("the AAT Act"). The index to the documents refers to four documents bearing the date 13 July 1999 (T30‑T33 inclusive). The document marked T30 is a file note advising that the workings of "Intensive assistance" had been explained to Ms Alderton. Ms Alderton was apparently being provided with Intensive assistance by Employment National, as well as "Job matching" (T30). A file note from The Salvation Army Employment Plus ("Employment Plus") to Centrelink, also dated 13 July 1999, document T31, records:
Client phoned and requested me to supply dates of her attendance for jobsearching. The dates are 28 May 99 Initial Interview. Dates for jobsearching are 01 Jun 28 Jun 01 Jul 05 Jul 07 Jul. I asked her if she had a m/c for yesterday and she said she was going to the Dr. tomorrow and would get one. She did not know what was wrong with her, but she was really sick on Friday, Saturday, Sunday and woke up Monday not feeling well. She asked me if she was only required to obtained [sic] a m/c for Monday and Wednesday. I said that if she was well today that she should have come in for jobsearching as explained to her by Di yesterday. . . .

The document indexed T32 is described as a "Delegate's reconsideration of decision letter". The document marked T32 is a letter dated 13 July 1999 from Ms Alderton and the document marked T33 is the delegate's letter.

A decision was apparently made with respect to payment of newstart allowance ("NSA") to Ms Alderton (see paragraph 2 above) because on 13 July 1999 Ms Alderton wrote advising, so far as relevant:
I am writing this letter to disagree with a breech [sic] that has been opposed [sic] upon me. I was supposed to go Monday and Wensday [sic] at Salvation Army employment plus to do [sic] look for a job. My mother was sick on the 2^nd June so I called Kerry to say that I couldnt go and she advised me that I had to get a medical certificate which I did get. I gave it to Catherine Jordan at Centrelink Windsor and she explained to me that I just needed a medical certificate for the 2^nd of June, so I gave it to her and before I gave it to her she told me that I needed it just for that day and then she told me that I wouldnt get a Breech [sic] once I gave her the medical certificate [sic] that I should be fine.
I also wanted to change from Salvation Army plus to Employment National Windsor because I wasnt happy with the way they were treating me so I called Centrelink and told them that I wanted to change from them to Employment National and they told me that it would be all right for me to do that, and then I said will I get a Breech [sic] or get into trouble for that and then they told me no I wouldnt. So this breech [sic] for 8 weeks should not have been opposed [sic] to me because I was in the right and Centrelink was in the wrong by telling me that I could swap employment places. I really disagree against this 8 week Breech [sic]. (T32)

It concerns the Tribunal that there is no evidence before it with respect to a decision being made about Ms Alderton's entitlement to NSA, which has ultimately led to these proceedings.

On 15 July 1999 a delegate wrote to Ms Alderton, advising her, amongst other things:
You recently asked me to review my decision about your payment of Newstart.
After careful consideration I have decided that the decision was correct under Section 601(5) of the Social Security Act.
. . .
You signed an Activity Agreement with Salvation Army Employment Plus on 26th May 1999 to attend their office every Monday and Wednesday. You did not attend on 31st May or 2nd June. You rang Employment Plus on 2^nd June and said that you could not come in due to your mother being ill. You were then asked to attend on the 3rd June in lieu of the 2nd, but you did not attend on the 3rd. You did not attend again until 28th June, 1999.

Subsection 601(5) of the Act provides:
601(5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).
Note 1: for situations where a person is not required to satisfy the activity test see:
(a)section 602 (certain persons over 50);
(b)section 603 (persons attending training camps or in remote areas).
By letter dated 27 July 1999, an ARO advised Ms Alderton that he was writing to her about the decision to suspend payment of her NSA.   The ARO went on to state:
All the decisions made by Centrelink have to be based on the law set out in the Social Security Act 1991. In your case I have based my decision on the following sections of the Act.
oSection 593(1) that sets out the various qualifications for the payment of Newstart Allowance. One of these is that the person satisfies the Activity Test.
oSection 601(5) looks at the situation where a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement.
oSection 626(1) which covers the penalties for failure to comply with the terms of a Newstart Activity Agreement.
In your case you signed a Newstart Activity Agreement with the Salvation Army Employment Plus on 26 May 1999.   Part of this agreement was that you were to attend their offices each Monday and Wednesday.
On Wednesday 2nd of June you phoned Employment Plus advising that you would not be attending on that day as your mother was ill.   This has been seen as an acceptable reason for not attending, having been confirmed by a medical certificate but you were asked to attend on the next day, 3rd of June.   You did not do this and did not attend Employment Plus until 28 June 1999 which is regarded as a breach of your agreement.
. . .
I agree with the decision that Centrelink Lithgow has made to impose a penalty in the form of a breach but I have disagreed that your payment should be stopped.   Instead I have imposed a 24% reduction in your allowance.
. . .    (T35)

However, by letter dated 29 July 1999, Ms Alderton was again written to by the ARO, who advised:

Since my letter of 27 July 1999 I have had occasion to look again at the amount by which your allowance is to be reduced and on reconsideration I have decided that the current breach recorded against you should be treated as a 3rd breach which attracts a 100% reduction in your allowance.
. . .
A breach was recorded against you while participating in the Work for the Dole Scheme on 28 September 1998 and in accordance with the above the breach was waived but the 18% breach penalty was recorded against you.
When a further breach was recorded on 9 December 1998 this was considered as a second breach and attracted a 24% breach penalty while the current breach, being the third, attracted a 100% breach penalty.
. . . (T36)

A file note records that Ms Alderton had previous breaches for failure to comply with her Newstart Activity Agreement ("agreement") on 28 September 1998 and 9 December 1998.

Subsections 1247(1) and (1A) provided when the SSAT determined the matter:
1247(1) Subject to section 1250, if:
(a)a decision has been reviewed by the Secretary, the CEO or an authorised review officer under section 1243; and
(b)the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary, the CEO or the authorised review officer may apply to the Social Security Appeals Tribunal review of that decision.
. . .
1247(1A) For the purposes of subsection (1), the decision made by the Secretary, the CEO or the authorised review officer is taken to be:
(a)if the Secretary, the CEO or the authorised review officer affirms a decision —the decision as affirmed; and
(b)if the Secretary, the CEO or the authorised review officer varies a decision —the decision is varied; and
(c)if the Secretary, the CEO or the authorised review officer sets a decision aside and substitutes a new decision — the new decision.

The Tribunal notes that those provisions have now been repealed and similar provisions have been substituted under the Administration Act. Presumably the decision before the SSAT was a decision under paragraph 1247(1A)(c) of the Act.

The decision‑making process must be confusing to somebody like Ms Alderton. She must take on trust that the legislation has been correctly applied in her case. This is not her application for review but rather an application by the Secretary. This Tribunal must satisfy itself that the provisions of the Act with respect to its jurisdiction have been satisfied and that it has power to determine the issues in the application before it. The SSAT decided:
. . . to set aside the decision under review and sent the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the directions that the agreement between Ms Alderton and Salvation Army Employment Plus is not a Newstart Activity Agreement and therefore Ms Alderton has not failed to comply with the activity test. (T2)

The SSAT noted that subsection 604(1C) of the Act provides:

604(1C) A Newstart Activity Agreement is a written agreement in a form approved by the Secretary and the Employment Secretary. The agreement is between the person and the Secretary.

The documents include a copy of the agreement, signed by Ms Alderton on 26 May 1999 (T11). It records that the agreement was negotiated between Ms Alderton and Employment Plus. The SSAT was satisfied that the agreement, signed by Ms Alderton (T11), was in a form approved by the Secretary and the Employment Secretary (paragraph 40, SSAT reasons for decision). The agreement form is headed "Department of Employment, Workplace Relations and Small Business". There is no identification on the bottom of the form as to when it was generated and who may have approved the form, but presumably it was approved by the Secretary, Department of Employment, Workplace Relations and Small Business. Subsection 601(1C) provides that the form must be approved by "the Secretary and the Employment Secretary" (see paragraph 9 above). Turning to subsection 23(1) of the Act, Employment Secretary means "the Secretary to the Employment Department" and pursuant to the same subsection Employment Department means "the Department of Employment, Workplace Relations and Training". However, the Department of Employment, Education and Training ceased to exist on 1 May 1998 when the Department of Employment, Workplace Relations and Small Business came into existence. It appears to be an oversight that the above definitions in subsection 23(1) of the Act have not been amended to reflect this change. As the Act affects the rights and entitlements of Ms Alderton, it should be strictly applied.
The agreement, signed by Ms Alderton and her Job Network member, presumably an employee of Employment Plus, on 26 May 1999, sets out that the
Date of Effect
When you and the Job Network member have signed the declarations below, the details of your Agreement will be submitted to the Department of Employment, Workplace Relations and Small Business (DEWRSB) for approval. Your Agreement will take effect following approval by DEWRSB. You will be contacted by Centrelink if your Agreement is not approved by DEWRSB. (T11)

The applicant and the party joined were invited by the Tribunal to make submissions to it with respect to subsection 604(1C) of the Act, the Tribunal having turned its mind as to whether the form had been approved by the Employment Secretary. The applicant advised that he did not wish to make a further submission and the Tribunal was advised on 21 February 2001 that instructions were being sought as to whether the party joined should withdraw. Having heard nothing further from the party joined, the Tribunal has decided that it should delay its decision no longer. Subsections 19B(2) and (3) of the Acts Interpretation Act 1901 provide:

19B(2) Where:
(a)reference is made in a provision of an Act to a particular Department of State of the Commonwealth;
(b)the Department has been abolished or the name of the Department has been changed; and
(c)the Governor-General, by order under this section, directs that the provision, or provisions that include the provision, shall have effect:
(i)as if there were substituted for that reference a reference to such Department as is specified in the order; or
(ii)as if, in so far as the provision applies in a particular respect specified in the order, being one of several respects so specified, there were substituted for that reference a reference to such Department as is specified in the order;

the provision shall, on and from the date of the order or such later date as is specified in the order, have effect accordingly for all purposes, including the purpose of the making of any subsequent order under this subsection or subsection 19BA(2), other than such an order that is expressed to have effect as if the first-mentioned order had not been made.
(3) Where:
(a)reference is made in a provision of an Act to a particular office, being an office of Secretary of a Department within the meaning of the Public Service Act 1999;
(b)the office has been abolished (whether by reason of the abolition of the Department or otherwise) or the name of the office has been changed; and
(c)the Governor-General, by order under this section, directs that the provision, or provisions that include the provision, shall have effect:
(i)as if there were substituted for that reference a reference to such office as is specified in the order; or
(ii)as if, in so far as the provision applies in a particular respect specified in the order, being one of several respects so specified, there were substituted for that reference a reference to such office as is specified in the order;

the provision shall, on and from the date of the order or such later date as is specified in the order, have effect accordingly for all purposes, including the purpose of the making of any subsequent order under this subsection or subsection 19BA(3), other than such an order that is expressed to have effect as if the first-mentioned order had not been made.

The Tribunal understands that the Governor‑General made orders and directions under section 19B on 21 October 1998 such that the Tribunal is satisfied that the relevant provisions of subsection 604(1C) have been complied with regarding the approval of the form by the appropriate Secretaries. It would not be easy however for Ms Alderton to trace the legislative path of approval with respect to the form and she is disadvantaged in that regard. The Act should be amended.

Although being satisfied that the form had been approved, the SSAT found that the form was not an agreement between Ms Alderton and the Secretary as required under subsection 604(1C). At paragraph 44 of its reasons for decision the SSAT said:
44. The tribunal is satisfied on the evidence available that there has been no delegation of authority from the Secretary to Salvation Army Employment Plus with respect to the subject agreement.

The documents before the Tribunal include copies of delegations of power made under section 1299 of the Act whereby the Secretary, by Instruments Nº 779 and Nº 780, dated 1 December 1998, delegated his powers under sections 605 and 606 of the Act to specified officers within the Department of Employment, Workplace Relations and Small Business. Instruments Nº 779 and Nº780 were not before the SSAT. Sections 605 and 606 provide, so far as relevant:

605(1) Subject to this section, if a person who has made a claim for, or who is in receipt of, a newstart allowance is not a party to a Newstart Activity Agreement, the Secretary may require the person to enter into such an agreement.

. . .
606(1) A Newstart Activity Agreement with a person is to require the person to undertake one or more of the following activities approved by the Secretary:
(a)a job search;
(b)a vocational training course;
(c)training that would help in searching for work;
(d)paid work experience;
(e)measures designed to eliminate or reduce any disadvantage the person has in the labour market;
(ea)subject to section 607A, development of self-employment;
(eb)subject to section 607B, development of and/or participation in group enterprises or co-operative enterprises;
(ec)an approved program of work for unemployment payment;
(f)participation in a labour market program;
(fa)participation in a rehabilitation program;
(fb)an activity approved by the Employment Secretary under the CSP;
(g)an activity proposed by the person (such as unpaid voluntary work proposed by the person).

606(2)     The terms of an agreement, which include the specification of the activities that the person is to be required to undertake, are to be approved by the Secretary.
606(3)     In considering whether to approve the terms of an agreement with a person, the Secretary is to have regard to the person’s capacity to comply with the proposed agreement and the person’s needs.
606(4)     In having regard to a person’s capacity to comply with an agreement and the person’s needs, the Secretary is to take into account:
(a)the person’s education, experience, skills, age and physical condition; and
(b)the state of the labour market in the locality where the person resides; and
(c)the training opportunities available to the person; and
(d)any factors that the Secretary considers relevant in the circumstances.

The Tribunal has set out the history above to draw attention to the care which must be taken in the preparation of documents and in the application of legislation to a person's circumstances so that additional administrative review costs are not incurred as a result of insufficient documentation being placed before a primary review body and a decision made which in turn must be further reviewed. Representation of the Secretary before a review body may assist when documents have not been provided to it to satisfy the review body of all relevant matters and it may also assist the review body to reach the correct or preferable decision.
The Tribunal also expresses its concern about the late provision to Ms Alderton and the Tribunal of an affidavit sworn by Ms J. Ross, director, Services Operation Section, Job Network Group, Department of Employment, Workplace Relations and Small Business, which was provided to the Tribunal on the day of hearing by Mr G. Peak, solicitor, Australian Government Solicitor's office, who represented the Secretary to the Department of Employment, Workplace Relations and Small Business at the hearing. Mr Peak advised that he had sent a copy of the affidavit to Ms Alderton who told the Tribunal that she had not yet received it. Ms Alderton appeared for herself at the hearing and spoke to the Tribunal by telephone. Mr B. Slattery, an advocate with Centrelink, appeared for the Secretary at the hearing. The Tribunal noted that it had directed, under subsection 30(1A) of the AAT Act, that the Secretary to the Department of Employment, Workplace Relations and Small Business be joined as a party to the proceedings. At the close of the oral evidence, the Tribunal directed that Ms Alderton have an opportunity to respond to Ms Ross's affidavit should she wish to do so before the Tribunal determined the matter. It also asked Mr Slattery to provide the Tribunal with evidence with respect to the two previous activity test breaches by Ms Alderton within the last two years of her agreement.
The SSAT recorded that Ms Alderton had acknowledged she signed an agreement with Employment Plus on 26 May 1999 and that she was aware that she had to "go" to Employment Plus each Monday and Wednesday. A Centrelink officer gave oral evidence to the SSAT that "job matching" was a referral by a provider to a client. There may be a number of providers of job‑matches for a client, but there is only one Intensive Assistance Provider. In Ms Alderton's case Employment Plus provided intensive assistance. The SSAT also referred to the reason the ARO had changed his decision, noting:
. . .
11. . . . The authorised review officer said that in reaching this decision he had considered Chapter 9 of the Mutual Obligation User Guide that covers the "Work for the Dole" scheme and in particular the section "Clean Slate Provision for Breaches". He referred to the particular provision whereby an "(a)dministrative breach penalty period to which a person is subject, will be waived from the date the person commences in "Work for the Dole". The breach history will remain and apply in the usual way for subsequent breaches". Accordingly, the 18% rate reduction penalty was not applied whilst Ms Alderton participated in "Work for the Dole", however, the breach for 28 September 1998 remained. A further breach was recorded on 9 December 1998. Because it was considered to be the second breach it resulted in a 24% rate reduction breach penalty. The current breach, being the third, attracted a breach penalty of 100% rate reduction for 8 weeks. Accordingly, the authorised review officer changed his decision on 27 July 1999 and affirmed the original decision by Centrelink that since the breach on 3 June 1999 was the third breach, a rate reduction of 100% was applicable and accordingly newstart allowance to Ms Alderton was suspended. The authorised review officer said that he relied upon section 593(1), 601(5) and 626(1) of the Social Security Act, 1991 (the Act).
. . .
Ms Ross deposed that Job Network members, under contract with the Department of Employment, Workplace Relations and Small Business, negotiate a draft Newstart Activity Agreement with a client. The officers of the Department of Employment, Workplace Relations and Small Business have a delegation of the powers of the Secretary under the Act and they approve draft Newstart Activity Agreements negotiated between Employment Plus and a client, and, once approved, the Newstart Activity Agreements entered into are Newstart Activity Agreements between the Secretary and the client. Ms Ross noted that the document indexed as T11 of the documents was a draft agreement, signed by Ms Alderton on 26 May 1999. The document indexed as T13 is a printout from the department's computer, recording that approval was given to the agreement by a delegate of the Secretary on 27 May 1999. Having perused those documents, the Tribunal is so satisfied.
Few jobseekers, or members of the public for that matter, may be aware of the steps which occur between the time a person lodges a claim for NSA and the payment of that allowance. Although the relevant legislation is the Act, Centrelink, the Department of Employment, Workplace Relations and Small Business and Job Network members under contract with the Department of Employment, Workplace Relations and Small Business are all involved. Having perused the documents and considered Ms Ross's affidavit, the Tribunal, having evidence before it that the Secretary has delegated his powers to officers of the Department of Employment, Workplace Relations and Small Business, who in turn have contracts with Job Network providers, finds that the provisions of subsection 604(1C) are satisfied and that Ms Alderton had an agreement with the Secretary. It is regrettable that the necessary evidence with respect to delegations was not before the SSAT.
Being satisfied that there is an agreement between Ms Alderton and the Secretary, the Tribunal turns to the issue as to whether Ms Alderton is entitled to be paid NSA during the period the ARO determined that there was a "100% breach penalty". Subsection 593(1) of the Act provides qualification for NSA and, as that section is set out in the reasons for decision of the SSAT, this Tribunal will not reproduce it here, nor subsection 626(1) with respect to NSA being not payable in certain circumstances, as it is also set out in the reasons for decision of the SSAT. A person only receives NSA if the person is qualified for NSA and NSA is payable to the person. Section 608 provides that NSA is not payable in certain circumstances, including sub‑paragraphs 608(1)(j)(iii):
(iii)the person had previously ceased to be qualified for newstart allowance for failure to comply with a Newstart Activity Agreement (see section 626); or.
Ms Alderton agreed with Mr Slattery that she had agreed to attend Employment Plus every Monday and Wednesday to participate in certain activities. Mr Slattery drew Ms Alderton's attention to the record made on 2 June 1999 of a telephone conversation when Ms Alderton had telephoned to advise that she was unable to attend Employment Plus on that day as her mother was ill and she had to take her to hospital, and that she had been asked to attend the next day. When asked whether she recalled that discussion, Ms Alderton said "sort of, yes". Ms Alderton conceded that she did not attend on the following day and when asked the reason why she said, "I have no idea".
Section 630A provides:
630A If an activity test non-payment period applies to a person under this Part, the period applicable to the person is 8 weeks.

There was no evidence before the Tribunal with respect to any earlier activity test breaches by Ms Alderton and Mr Slattery undertook to provide that material to the Tribunal, although Ms Alderton conceded in evidence that on 28 September 1998 she had failed to comply with an activity test and an 18 per cent penalty had been imposed on her, and that on 9 December 1998 she had again failed her activity test and a 24 per cent penalty had been imposed.

Following the hearing, Mr Slattery provided the Tribunal and Ms Alderton with the further material he had undertaken to provide. Mr Slattery advised that he had examined Ms Alderton's record with respect to her breaches of the agreement. It appears that it was initially proposed that an activity test rate reduction of 18 per cent would be imposed on Ms Alderton from 28 September 1998 to 24 March 1999, but that that activity test breach had been waived with the result that the rate of NSA payable to Ms Alderton was not reduced, although it is not clear from the record why that decision was made. Mr Slattery provided documentation with respect to the further breach recorded against Ms Alderton on 9 December 1998, for failing to attend a work for the dole project when a 26‑week rate reduction of 18 per cent was imposed on her. Mr Slattery put to the Tribunal that the breach with which the Tribunal was concerned, being Ms Alderton's failure to attend Employment Plus on 3 June 1999, was a second breach within the two year period commencing 9 December 1998 and that therefore a rate reduction of 24 per cent of NSA for 26 weeks should be imposed on her rather than an 8 week non‑payment period under sections 644A and 644AE of the Act. This concession by the party joined highlights the errors which may occur if decision‑makers on review do not satisfy themselves that each provision under the Act has been complied with. No assumptions should be made.
Being satisfied that Ms Alderton has breached her activity test on a second occasion within two years, an activity test breach rate reduction period applies to her and the Tribunal will set aside the decision of the SSAT and remit the matter to the Secretary for reconsideration in accordance with directions that the rate of NSA payable to Ms Alderton be reduced as provided under the Act.

I certify that the twenty‑two [22] preceding paragraphs are a true copy of the reasons for the decision herein of

Mrs H.E. Hallowes, Senior Member

(sgd) Catherine Thomas

Personal Assistant

Dates of Hearing:  28.03.00
14.07.00
Date of Decision:  20.03.01
Solicitor for the Applicant:            Mr B. Slattery, Departmental Advocate
Solicitor for the Respondent:        NIL — IN PERSON

Solicitor for the Party Joined: Mr G. Peak, Australian Government Solicitor

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Alderton; Secretary, Department of Family and Community Services and [2001] AATA 208

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