Alena Housego and Secretary, Department of Social Services
[2015] AATA 7
•9 January 2015
[2015] AATA 7
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2014/1425
2014/1426
Re
Alena Housego
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 9 January 2015 Place Adelaide The decisions under review are affirmed.
............ [Sgd] ....................................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY - Allowances - Newstart - Connection and reconnection failures - Reconnection penalty - Whether reasonable excuse - Cancellation of Newstart - Whether applicant qualified for payment - Refusal to enter into Employment Pathway Plan - Decisions under review affirmed.
LEGISLATION
Social Security Act 1991, ss 593, 605
Social Security (Administration) Act 1999, s 81(1)
Social Security (Employment Pathway Plan Requirements) (DEEWR) Determination (No. 1), s 5
REASONS FOR DECISION
Deputy President K Bean
9 January 2015
The applicant, Ms Housego, was in receipt of Newstart Allowance (NSA) most recently from 12 October 2011.[1] However, for reasons that will be explained below, a penalty of $608.36 was deducted from her NSA in September 2013, and her NSA was subsequently cancelled in October 2013. Ms Housego has applied to this Tribunal for review of those decisions. Before proceeding to consider the relevant issues, I will first set out the background to the two applications for review in more detail.
BACKGROUND
[1] Exhibit 1, T10/141.
Application 2014/1425
This application relates to the decision to cancel Ms Housego’s NSA. The circumstances giving rise to that decision are as follows.
In May 2013, Ms Housego apparently refused to sign a new Employment Pathway Plan (EPP) as required by the Secretary for the purposes of her qualification for NSA. Following some further communications about this, on 25 September 2013 she was sent a letter notifying her of an appointment on 10 October 2013 at Jobs Statewide, her Employment Services Provider.[2] The purpose of that appointment was to discuss Ms Housego’s ongoing job seeker requirements and for her to enter into a new EPP but, in the event, Ms Housego did not attend that appointment. A further appointment was made for 17 October 2013, however Ms Housego did not attend on that occasion either.
[2] Exhibit 1, T5/109 - 110.
A decision was subsequently made by Centrelink that Ms Housego had refused to enter into an EPP and in doing so had failed to meet the obligations applicable to qualification for NSA. It was also decided that she was therefore no longer qualified to receive NSA with effect from 23 October 2013.
On 17 December 2013, an Authorised Review Officer affirmed that decision, and on 20 February 2014, the Social Security Appeals Tribunal (SSAT) also found that decision to be correct. Ms Housego subsequently applied for review by this Tribunal on 19 March 2014, giving rise to this application.
Application 2014/1426
Ms Housego also lodged another application for review in this Tribunal on 19 March 2014, giving rise to application 2014/1426. That application relates to a decision that Ms Housego committed connection and reconnection failures on 14 August 2013 and 10 September 2013 respectively, resulting in the deduction of a ‘reconnection penalty’ from her NSA of $608.36[3] for the period from 10 September 2013 to 25 September 2013. The circumstances giving rise to that decision are as follows.
[3] Exhibit 1, T2/4.
Ms Housego was required to attend a Comprehensive Compliance Assessment (CCA) interview on 14 August 2013, of which she had apparently been verbally advised the day before. In the event, Ms Housego did not attend that interview, and Centrelink determined that she had committed a ‘connection failure’. On 27 August 2013, Ms Housego was notified that she was required to attend a ‘reconnection’ appointment on 10 September 2013, but she also failed to attend that appointment. Centrelink accordingly determined that Ms Housego had committed a ‘reconnection failure’ and a reconnection penalty of $608.36 was deducted from her NSA.
Those decisions were affirmed by an Authorised Review Officer on 30 October 2013 and by the SSAT on 20 February 2014.
Before proceeding to define and address the issues arising from each application more directly, I will next set out the statutory framework relevant to each reviewable decision.
STATUTORY FRAMEWORK
The cancellation decision
Section 593 of the Social Security Act 1991 (the Act) sets out the criteria for qualification for NSA. At the relevant time, it provided as follows:
Qualification for newstart allowance
(1)Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
...
(b) in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test; and
(c) if subsection 605(1) applies to the person, at all times (if any) during the period when a Newstart Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan; and
(d) if subsection 605(1) or (2) applies to the person, at all times during the period when a Newstart Employment Pathway Plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan; and
(e) if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan; and
(f) while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan; and
...
At the relevant time, s 605 of the Act provided as follows:
Newstart Employment Pathway Plans--requirement
(1)If a Newstart Employment Pathway Plan is not in force in relation to a person, the Secretary may require the person to enter into such a plan if:
(a) the person is receiving, or has made a claim for, a newstart allowance; or
(b) the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.
(2) If a Newstart Employment Pathway Plan is in force in relation to a person, the Secretary may require the person to enter into another plan instead of the existing one.
...
(3)The Secretary is to give a person who is required to enter into a Newstart Employment Pathway Plan notice of:
(a) the requirement; and
(b) the places and times at which the plan is to be negotiated.
Subsection 80(1) of the Social Security (Administration) Act 1999 (the Administration Act) also relevantly provides that:
Cancellation or suspension determination
(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
The ‘reconnection penalty’ decision
Division 3A of the Administration Act relates to compliance with obligations in relation to ‘participation payments’, which includes NSA. Section 42E provides that the Secretary may determine that a person commits a connection failure if, relevantly, the person:
·fails to comply with a requirement that was notified to the person; or
·fails to comply with a requirement to enter into an EPP; or
·fails to attend an appointment that the person is required to attend by an EPP that is in force;
and the person does not have a reasonable excuse for the failure.
Section 42G also provides that the Secretary may require the person to comply with a ‘reconnection requirement’ and must notify the person of the effect of not complying with that requirement (i.e. a penalty amount being deducted from their payment, or their payment not being payable for a period) either verbally or in writing before the person is required to comply with the reconnection requirement.[4] If the Secretary determines that the person has committed a reconnection failure without a reasonable excuse, s 42L of the Administration Act provides that the person’s ‘penalty amount’ for the reconnection failure[5] is to be deducted from their social security payment for a period determined under subs 42H(5).
[4] Administration Act, s 42K.
[5] See s 42T of the Administration Act, which provides that the Minister must, by legislative instrument, determine a method for working out a person’s penalty amount for a reconnection failure. That legislative instrument is the Social Security (Administration) (Penalty Amount) (DEEWR) Determination 2012 (No. 1).
I also note that the Secretary has made the Social Security (Reasonable Excuse — Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1) (the Determination) under section 42U of the Administration Act, which I am obliged to apply when considering whether there was a ‘reasonable excuse’ for any ‘connection/reconnection failures’.
ISSUES
Accordingly, the issues for my determination are as follows:
Application 2014/1425
(a)Was the decision to cancel Ms Housego’s NSA from 23 October 2013 correct, that is, was she qualified for NSA as at that date?
Application 2014/1426
(b)Did Ms Housego commit ‘connection’ and ‘reconnection’ failures by failing to attend the appointments on 14 August 2013 and 10 September 2013?
(c)If so, did she have a ‘reasonable excuse’ for the failures; and
(d)If not, should a reconnection penalty have been applied to her NSA for the period from 10 September 2013 to 25 September 2013?
I propose to deal with the issues raised by application 2014/1426 first, before turning to the issue of whether Ms Housego was qualified for NSA as at 23 October 2013, which is the subject of application 2014/1425.
DID MS HOUSEGO COMMIT ‘CONNECTION’ AND ‘RECONNECTION’ FAILURES AND, IF SO, WHAT FLOWS FROM THIS?
As I understand the position, it is not in dispute that Ms Housego did not attend the appointments on 14 August 2013 and 10 September 2013. At the hearing, Ms Housego gave evidence that she knew that appointments had been made to speak with someone at Centrelink, but said there had been issues with making those appointments over “a couple of weeks”. When asked whether she was aware that she had an appointment on 14 August 2013, Ms Housego said that she did not know the date, but said that she had not wanted to attend the appointment because she “didn’t like the way [she] was being treated”.
In Ms Housego’s diary notes, the entry on 14 August 2013 records as follows:
I didn’t contact ? unavailble (sic) do not have a reasonable excuse have been so busy this morning….just finished doing some vacuuming and washing which was needed….[6]
In her oral evidence Ms Housego said that “sometimes the house gets in disorder” and that it was a “priority to get the house back under control”. She acknowledged that that was “essentially why” she did not want to go to the appointment. Ms Housego also confirmed under cross-examination that she did vacuuming and washing on 14 August 2013, and said that she did not go to the appointment because “there were things [she] needed to get done”. She referred to “everything building up” at the meetings and that she “might have emotionally been looking for things to do instead”.
[6] Exhibit 9, p 4.
With respect to the ‘reconnection appointment’ on 10 September 2013, in her oral evidence Ms Housego said that she had contacted Centrelink to re-book the appointment and “got through at 11:00 am” but then got “disconnected”. She explained that by the time she called back it was after 12:00 pm, being the time apparently scheduled for the appointment. When asked what her reason was for not attending the appointment on 10 September, Ms Housego said that she “didn’t want to attend anything” after being “cut off” social security benefits, but admitted that she was “not sure if that happened at this stage”.
In response to questions from the Tribunal, Ms Housego agreed that what the SSAT had recorded about the non-attendance on 10 September, namely, that Ms Housego “felt pressured” and spoke with her father who told her she should not attend, was accurate. Ms Housego’s diary entry on 10 September 2013 also records as follows:
Didn’t attend. Put form in. do not have a reasonable excuse well it’s been a long day so far...didn’t go to the “social worker” meeting……I said something to dad yesterday about not wanting to go to a “social worker meeting”…..his advice was…….‟well don’t go”….so we agreed on something…….I ended up getting some shopping done after putting my form in. Advised not to go. (notes in diary had been totally worn out) – still completely wiped out……[7]
[7] Exhibit 9, pp 5 - 6.
Consideration
The Determination outlines the matters that the Secretary (or the Tribunal standing in the Secretary’s shoes) must take into account in determining whether a person has a ‘reasonable excuse’ for a failure.
Subsection 5(2) provides that those matters are:
(a)that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure; and
(b) the literacy and language skills of the person; and
Example for paragraph (b)
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c)an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature; and
(d) a cognitive or neurological impairment of the person; and
(e) a psychiatric or psychological impairment or mental illness of the person; and
(f) a drug or alcohol dependency of the person; and
(g) unforeseen family or caring responsibilities of the person; and
(h) that the person was subjected to criminal violence (including domestic violence and sexual assault); and
(i) that the person was adversely affected by the death of an immediate family member or close relative; and
(j) if:
(i) the person has been imprisoned for a continuous period of more than 14 days; and
(ii) the person has been released; and
(iii) the person was released not more than 28 days before the failure was committed;
the person’s imprisonment or release from imprisonment.
Subsection 5(3) also provides that the Secretary must not take into account a matter if the Secretary is not satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement or the provision of the Act or the Administration Act to which the failure relates.
It is clear that the reasons given by Ms Housego for failing to attend the appointments on 14 August 2013 and 10 September 2013 do not amount to a ‘reasonable excuse’ within the meaning of the Determination. Accordingly, I am satisfied that she committed connection and reconnection failures on those dates.
As I am not satisfied that Ms Housego had a ‘reasonable excuse’ for failing to attend the appointments on 14 August 2013 and 10 September 2013, and I consider that the penalty amount has been correctly determined and calculated, I am accordingly satisfied that the decision to deduct a penalty amount of $608.36[8] from her NSA payments, by virtue of s 42L of the Administration Act, for the period from 10 September 2013 (the date of her reconnection failure) to 25 September 2013 (the day before she complied with a further reconnection requirement)[9] was correct. Accordingly, I have decided to affirm the decision under review in application 2014/1426.
[8] See Exhibit 2, T8/54 - 55. The penalty amount is calculated by reference to the Social Security (Administration) (Penalty Amount) (DEEWR) Determination 2012 (No. 1) made under section 42T of the Administration Act.
[9] See subsections 42H(4) - (5) of the Administration Act; Exhibit 9, p 6.
WAS MS HOUSEGO QUALIFIED FOR NSA AS AT 23 OCTOBER 2013?
In determining this issue, I must decide whether Ms Housego satisfied the requirements of s 593 of the Act at the relevant time. The Secretary contends that Ms Housego did not meet the requirement in subs 593(1)(e) of the Act, as she did not enter into an EPP in relation to the relevant period as required by the Secretary.
Did Ms Housego enter into an EPP?
In addition to Ms Housego’s oral evidence, I also received oral evidence at the hearing from Ms Desi Minas of Jobs Statewide, Ms Housego’s Employment Services Provider. The Secretary also tendered contemporaneous records of interview which were prepared by staff at Jobs Statewide in respect of appointments with Ms Housego on 9 April 2013, 26 April 2013, 22 May 2013, 2 July 2013, 15 August 2013, and 18 October 2013.[10]
[10] Exhibit 4.
Ms Minas gave evidence that Ms Housego had been “reluctant” to sign EPPs at Jobs Statewide “because she’s been self-employed”. She said Ms Housego claimed not to have time to participate in courses and programs offered to her by Jobs Statewide as part of her EPP, such as “Back on Track”, which partners the job-seeker with a trainer who assists with résumés, job searching, interview techniques, “cold-canvassing” employers, and applying for jobs. Ms Minas explained that the “Back on Track” program would have been beneficial to Ms Housego, who apparently had not provided any job search evidence to Jobs Statewide. She said that other courses had been offered to Ms Housego but were met with the “same answer”, namely, that she was “running a business” and had “no time to attend”. She also explained that whilst EPPs are tailored to individuals, they must also meet the requirements of Centrelink.
The contemporaneous records of interview from Jobs Statewide also indicate as follows:
·On 22 May 2013: “JS [job seeker] refused to sign EPP – 48 hour cooling off period”;
·On 2 July 2013: “JS refuses to sign EPP stating that the last EPP has not expired(?)”;
·On 15 August 2013: “JS refuses to sign EPP”; and
·On 18 October 2013: “JS did not sign EPP. 48 hours given to sign EPP”.
I do not understand Ms Housego to dispute that she did not attend the appointments on 10 and 17 October 2013 which were apparently made for the purposes of entering into a new EPP, although I note that Ms Housego’s diary notes record that the appointment on 17 October was “cancelled” by Centrelink following a telephone call from Ms Housego.[11] In any event, at the hearing, Ms Housego sought to explain the events which led to her refusal to sign a new EPP from May 2013.
[11] Exhibit 9, pp 8 - 9.
Ms Housego referred to the fact that, at her appointments with Jobs Statewide, the EPP would be read out to her but would not be provided to her to read through herself prior to signing. She said she was not provided with copies of the Code of Practice or Service Guarantee referred to in the plan when she requested these from Jobs Statewide, and nor was she given a photocopy of the EPP she had signed in April 2013, despite her requests. Under cross-examination Ms Housego also claimed that Jobs Statewide “were doing their best to prevent [her] from signing” by scheduling late-afternoon appointments and apparently saying at 5:00 pm that her appointment was “finished for the day”.
However, Ms Housego also conceded that she had “politely declined” to sign a new EPP at Jobs Statewide and said that she had given “reasons why most of the time”. Her evidence at the hearing was that she declined to enter into a new EPP because “the other one had not expired” and because the plan was “not suitable”. In particular, Ms Housego considered that the “Back on Track” program included in the plan was unsuitable because it was directed to things she was already doing and which she was already skilled at doing, and she thought it was “undermining” and not appropriately recognising her ability and existing skills.
However, I note that under subs 605(2) of the Act, the Secretary may require a person who is in receipt of NSA to enter into another EPP instead of the one that is already in force. Further, whilst is it not entirely clear on the material before me whether the previous plan was still “in force”, subs 593(1)(d) also requires that, where subs 605(2) applies, the person must be prepared to enter a new plan.
Although I have noted what Ms Housego says about the new plan being unsuitable, I am not satisfied that the requirements contained in the new plan[12] are contrary to s 606 of the Act and s 5 of the Social Security (Employment Pathway Plan Requirements) (DEEWR) Determination 2009 (No. 1), which specifies the kinds of requirements that an EPP must not contain.[13]
[12] Exhibit 6.
[13] The Determination provides that an EPP must not contain the following kinds of requirements: to be involved or participate in a criminal activity; to undergo involuntary psychiatric, psychological or medical treatment; to seek to be involved in or undertake an activity outside of Australia; to be involved in the adult entertainment industry; to undertake an unlawful activity; to undertake an activity which would aggravate a person’s illness, disability or injury.
Further, having regard to the legislation, the requirements in subs 593(1) are strict in the sense that there is no discretion to consider the reasons why a person has not entered into a new EPP, or is not prepared to enter a new plan. I also note that under cross-examination Ms Housego agreed that she knew the repercussions of not signing the new EPP.
For completeness, I note that Ms Housego also submitted that the relevant legislation was “unconstitutional”. However she gave no cogent reasons which could potentially support that assertion and therefore I do not propose to consider it further.
Accordingly, as I am satisfied that Ms Housego was not prepared to and did not enter into an EPP in relation to the relevant period as required by the Secretary, I am obliged to affirm the decision to cancel her NSA from 23 October 2013.
DECISION
In application 2014/1425, the decision under review is affirmed.
In application 2014/1426, the decision under review is affirmed.
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security - Allowances
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Reasonable Excuse
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Administrative Decision Making
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