Alex Longstaff and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 777
•8 November 2012
[2012] AATA 777
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2012/1678 |
| Re | Alex Longstaff |
| APPLICANT | |
| And | Secretary, Department of Education, Employment and Workplace Relations |
| RESPONDENT |
DECISION
| Tribunal | Ms A F Cunningham (Senior Member) |
| Date | 8 November 2012 |
| Place | Hobart |
The decision under review is affirmed.
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Ms A F Cunningham (Senior Member)
CATCHWORDS
SOCIAL SECURITY – newstart allowance – participation failures – connection failures and a no show no pay failure – applicant’s excuses not objectively reasonable – decision under review affirmed
LEGISLATION
Social Security Act 1991
Social Security Administration Act 1999 ss 42A, 42B, 42C, 42D, 42G, 42M, 42N, 42NA, 42NA (2), 42NC, 42T
Social Security (Reasonable Excuse-Participation payment Obligations)( DEEWR) Determination 2009 (No. 1) (the Reasonable Excuse Determination) sec 5 Social Security (Administration) (Persistent Non-compliance)(DEEWR) Determination 2009 (No. 1) (The Persistent Non-Compliance determination)
Social Security (Administration) (Penalty Amount) Determination 2009 (No. 1)
CASES
Secretary, Department of Employment and Workplace Relations v Real 2007 FCA 988
Henney v Secretary, Department of Employment and Workplace Relations 2007 AATA 1639
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
The applicant, Alex Longstaff has been in receipt of newstart allowance since 12 November 2007. A comprehensive compliance assessment undertaken on 31 January 2012 for the previous six-month period found that Mr Longstaff had committed three connection failures, a no show no pay failure and a serious failure for persistent non-compliance. As a result of the findings Centrelink determined to impose an eight week non-payment period to Mr Longstaff’'s newstart allowance together with a $48.68 penalty.
Centrelink's decision was affirmed by an authorised review officer and by the Social Security Appeals Tribunal (SSAT) on 16 April 2012. Mr Burke seeks a review of Centrelink's decision by the AAT.
At the hearing Mr Longstaff represented himself and gave oral evidence. Mr Sparkes appeared on behalf of the Secretary. The T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were tendered in evidence.
SECRETARY’S CONTENTIONS
It was contended by the Secretary that Mr Longstaff had committed the following connection failures:
On 12 October without reasonable excuse he failed to attend an appointment with Employment Plus (EP). He was advised of his appointment on 7 October 2011 by phone and given a compliance warning.
On 20 October 2011 without reasonable excuse he attended an appointment with EP to enter into an Employment Pathway Plan (EPP) which included an activity to attend empowerment training. He walked out of the interview. He was notified of the requirement and given a compliance warning.
On 28 October 2011 Mr Longstaff signed an EPP which required him, amongst other things, to attend a job search program from 31 October 2011 to 4 November 2011. He was advised of the consequences of not complying.
On 2 November 2011 he failed to attend because he was playing golf.
On 4 November 2011 he failed to attend because his sister was visiting from New South Wales.
It was further contended that Mr Longstaff committed the following no show no pay failure:
On 13 January 2011 he was advised by telephone of a requirement to attend an appointment with EP on 27 January 2012 but failed to attend despite a compliance warning.
MR LONGSTAFF ‘S EVIDENCE
Mr Longstaff stated that on 12 October 2011 he was undertaking community service hours between 7:30 am and 2pm at the Riverside golf course pursuant to a court order. He believed that his appointment with the job agency was at 3 pm. After "taking care of some errands" at the golf course he commenced his walk into town at around 2.30/2.40 pm. He recalled that it was a hot day and that he was quite fatigued after undertaking physical work and having had little water and no food. The journey which should have taken between 30 to 40 minutes, took over an hour. He consequently missed his appointment with the job agency which was rescheduled.
Mr Longstaff agreed that he missed his appointment with EP on 20 October 2011 but said that he was required to attend court at 10 am that day. He explained that after waiting for some two hours he was called into court and his matter was adjourned until 2.30 that afternoon. He said that he was required to obtain a document from his lawyer at Archer Bushby to bring back to court in the afternoon. Mr Longstaff said that he visited the Salvation Army (the EP agency) and advised the receptionist of his court appointment and said that he did not know how long he would be detained. He claims that he did not leave court until around 5:30 pm that day.
It was Mr Longstaff’s evidence that he attended his appointment with the Salvation Army) on 27 January 2012 but refused to sign the employment pathway plan because he did not agree with its requirements. He claims that he wanted to undertake further training.
With respect to his appointment on 4 November 2011, it was Mr Longstaff’s evidence that he recalled that his appointment time was 10:30 am however he was obliged to undertake community service hours at the golf course between 10 am and 1 pm. Mr Longstaff said that he considered his community service obligations which were subject to a court order, to have a higher priority than his job search appointments.
Under cross-examination Mr Longstaff did not dispute that he was given notification by phone of his appointment on 12 October 2011 (T6 page 31). When it was put to him that the reason he had previously provided for his non-attendance on 12 October 2011 was a court appointment (T6 page 36-37), Mr Longstaff said that he must have his "wires crossed" and that his evidence about community service at the golf course must have been with respect to another appointment. It was Mr Longstaff’s evidence that he could not recall telling the SSAT that he had accepted his appointment time on 12 October 2011 but had forgotten that he was supposed to attend court that same day (T2 page 8). The notes of Centrelink’s interview with Mr Longstaff at T6 page 37-38, state that he did not contact his provider prior to attending court.
Mr Longstaff accepted that the evidence that he gave with respect to his non-compliance on 20 October 2011 could be applicable to 12 October 2011. He accepted under cross-examination that he had refused to sign the EPP as he did not consider that it was relevant to his circumstances because he did not need assistance with literacy and numeracy. At T7 page 41 it is stated "Job seeker has failed to enter into Employment Pathway Plan. Spoke to jobseeker about Empowerment training which helps with motivation, cover letters, resumes etc and jobseeker refused to do this and walked out during appointment".
Mr Longstaff agreed that he did leave the appointment but maintained that he had said that he was going to get a second opinion. It was put to Mr Longstaff that he did not provide any reasons for not signing the EPP. Centrelink had recorded at T7 page 45 that Mr Longstaff had advised that he did not have time to undertake the activity as he was under a community service order and had legal issues to deal with. In response Mr Longstaff agreed that he had said that he had more important appointments than the training but did not agree that he walked out of the interview. Mr Longstaff said that a few days later he agreed to sign the EPP so that he could continue to receive his benefits.
Mr Longstaff agreed that he had advised the Salvation Army that he had a golf commitment on 2 November 2011. He said that he was involved in a golfing championship. He maintained that his failure to attend the appointment on 4 November 2011 was either due to his community service obligations or his court appearance. It was put to Mr Longstaff in cross-examination that the reason that he had previously supplied for his non-attendance was that he was "busy hanging out with his sister as sister was visiting customer from New South Wales" (T8 page 52). Mr Longstaff disputed the note as he maintained that his sister had visited on 1 November 2011 which was her birthday.
It was put to Mr Longstaff that Centrelink had recorded that he had family obligations to attend to on 4 November 2011 and was picking his sister up from the airport (T2 page 9). Mr Longstaff said that this was incorrect and maintained that his sister had visited on 1 November 2011. He contended that his previous explanation for 12 October 2011 could be in relation to his appointment on 4 November 2011.
Mr Longstaff said that the explanation that he had provided in his evidence in chief with respect to his community service obligation at the golf course could be referrable to his appointment on 27 January 2012 which was at 3 pm on a Friday afternoon. He agreed that this was the evidence he had provided to the SSAT as the reason for his failure to attend his appointment at 3 pm on that day.
It was Mr Longstaff’s evidence that he had smoked marijuana consistently from 2006 and recalls that it was a bad period of time for him between 2009 until around mid 2011. He was also engaged in some criminal activity and was prosecuted on several occasions.
LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act), the Social Security Administration Act 1999 (the Administration Act), the Social Security (Reasonable Excuse-Participation payment Obligations) (DEEWR) Determination 2009 (No. 1) (the Reasonable Excuse Determination) and the Social Security (Administration) (Persistent Non-compliance)(DEEWR) Determination 2009 (No.1) (The Persistent Non-compliance determination) and the Social Security (Administration) (Penalty Amount) Determination 2009 (No.1).
The compliance obligations in relation to participation payments are set out in Part 3 Division 3A of the Administration Act. Schedule 1 of the Administration Act defines participation payments and includes newstart allowance. Mr Longstaff was in receipt of newstart allowance at the relevant times.
Section 42A contains a simplified outline and reads as follows:
The Secretary may determine that a person commits a no show no pay failure, a connection failure, a reconnection failure or a serious failure.
A person commits such a failure by failing to comply with his or her obligations in relation to a participation payment. The participation payments are newstart allowance, and for some people, youth allowance, parenting payment and special benefit.
For a no show no pay failure, a penalty amount is deducted from the person’s participating payment.
For a connection failure, a requirement may be imposed on the person (and if the person fails to comply with the requirement, the person commits a reconnection failure).
For a reconnection failure, generally a penalty amount is deducted from the person’s participation payment until the person complies with a requirement imposed on the person.
For a serious failure. A participation payment is not payable to the person for 8 weeks. The 8 week period may be ended in certain circumstances.
The Secretary may also determine that a person is unemployed as a result of a voluntary Act or misconduct. If the Secretary does so, a participation payment is not payable to the person for either 8 or 12 weeks, depending on the circumstances.
The object of Division 3A as set out in section 42B is to encourage people to participate in employment and engage with employment services. This section provides that the intention is not to punish a person who has a reasonable excuse for failing to comply with such obligations.
Section 42C sets out the rules relating to no show notice pay failures and describes the circumstances where they occur. It includes a failure to participate in an activity that the person is required to undertake for employment pathway plan (EPP) that is in force in relation to that person and a failure to comply with a serious failure requirement imposed on the person.
Section 42C (4) provides that a no show no failure will not apply if the Secretary is satisfied that the person has a reasonable excuse for the failure.
Section 42D provides for a penalty amount for a no show no pay failure and is calculated according to section 42T.
Section 42E sets out the rules relating to connection failures. Included is a failure with a requirement to enter into an EPP or a failure to attend an appointment required by an EPP. The reasonable excuse provision is set out in subsection 42D (4).
Section 42G sets out the rules relating to reconnection requirements where a person commits a connection failure or fails to participate in an activity required by an EPP or fails to attend an appointment required by an EPP.
Subdivision D contains provisions regarding serious failures. Section 42M provides that in determining whether a person commits a serious failure, account must not be taken of failures that were outside the person’s control and that account should only be taken of failures that occurred intentionally, recklessly or negligently.
Subsection 42N (2) provides that the Secretary must not determine a serious failure if the person satisfies the Secretary that there is a reasonable excuse for the failure. Section 42NA provides that before determining a serious failure a comprehensive compliance assessment must be undertaken addressing the matters specified at subparagraph 42NA (2). Section 42NC provides that if a person commits a serious failure, the Secretary must also determine that this section applies unless satisfied that the person does not have the capacity to undertake any serious failure requirement and serving the serious failure period would cause the person severe financial hardship. Section 42P provides that where a person commits a serious failure and section 42NC applies, the participation payment is not payable to the person for the serious failure period. The method for calculating a no show no pay failure and reconnection failure penalty is set out in section 42T.
The assessment period for the purposes of subsection 42M (4) of the Act is defined in clause 4 of the Social Security (Administration) (Persistent Non-compliance) (DEEWR) Determination 2009 (No.1) as the six month period prior to the start of the current comprehensive compliance assessment . In the current case it is the six months prior to 31 January 2012 when the assessment was undertaken.
A list of matters that the Secretary must take into account in determining whether a person has a reasonable excuse is contained in section 5 of the Social Security (Reasonable Excuse-participation Payment Obligations) (DEEWR) Determination 2009 (No. 1). They include :
access to safe, secure and adequate housing or the use of emergency accommodation or a refuge at the time of the failure
literacy and language skills
illness or impairment requiring treatment
a cognitive or neurological impairment
psychiatric or psychological impairment or mental illness
drug or alcohol dependency
unforeseen family or caring responsibilities
being subjected to criminal violence
death of a family member or close relative
imprisonment or release from prison not more than 28 days before the participation failure.
Section 42U provides that there must be prior notification of an excuse unless it was not reasonable to expect the person to give prior notice. The excuse must also be offered by the person who has committed a failure.
DISCUSSION AND FINDINGS
There was no dispute and the Tribunal finds that Mr Longstaff was in receipt of newstart allowance during the relevant period that is August 2011 until 31 January 2012.
The respondent‘s evidence regarding Mr Longstaff's connection failures, no show failure and serious failure for persistent non-compliance is contained in the T documents, and in particular the comprehensive compliance assessment which was completed on 31 January 2012.
Mr Longstaff does not dispute that he failed to attend appointments of which he had been given prior notice and also initially refused to enter into an EPP. After signing an EPP on 28 October 2011 which required him amongst other things to attend a job search program from 31 October 2011 to 4 November 2011, Mr Longstaff does not dispute that he failed to attend an appointed program. The respondent’s evidence regarding the dates of the failures is recorded in the comprehensive compliance assessment and various parts of the T documents. Mr Longstaff does not dispute the dates apart from the job search program appointment on 4 November 2011 which he believes was scheduled for 1 November 2011. Mr Longstaff has no record of the appointment dates and due to the lapse of time, has no precise memory of the dates. I have no reason to doubt the accuracy of the dates as recorded in the T documents and find accordingly.
I am also satisfied that the three failures as described constitute connection failures within the meaning of the relevant legislation as outlined above. I find the failure described as a no show no pay failure also complies with the legislative definition, as does the failure described as a serious failure for persistent non-compliance.
Mr Longstaff does not dispute his obligations to attend the appointments and meetings nor does he allege that he was not given appropriate prior notice of the dates and times of the appointments. What he does contend is that on each occasion he had a reasonable excuse for his non-attendance.
The legislation stipulates that the excuse must be offered by the person who has committed the failure and cannot be identified by the decision maker. Whilst there is no onus of proof imposed on an applicant for the review of an administrative decision, Mr Longstaff must bear some responsibility for presenting the relevant facts in order to persuade the Tribunal that the decision under review should be overturned.
The term “reasonable” was considered by the Tribunal in Re Henney and Secretary Department of Employment and Workplace Relations (2007) AATA 1639 where Member Christie stated:
“The meaning of “reasonable” in terms of social security entitlement issues under the Social Security Act 1991 were considered in Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295, to mean the main reason for failure involved a matter that was within the control of the social security recipient. Similarly, in other case law, “reasonable” refers to circumstances that prevented compliance being out of control of a person.”
Kiefel J in Secretary Department of Employment and Workplace Relations versus Real 2007 FCA 988 said at paragraph 6:
“It is whether the Tribunal considers that, in all the circumstances, the respondent should be excused. It is whether the Tribunal is satisfied about the reason proffered by him which justifies his non-compliance with the notice.”
Although Mr Longstaff’s evidence as to the reasons why he failed to attend his scheduled appointments has been fairly consistently explained on each occasion, I cannot be satisfied as to which excuse is referrable to which appointment. Mr Longstaff has suggested that I make up my own mind as to which aspects of his evidence are relevant to each of the four participation failures.
In his evidence before the Tribunal with respect to the scheduled appointment on 12 October 2011, Mr Longstaff said that he arrived some 30 minutes late due to various factors and principally because he had earlier been occupied with community service obligations. However the Centrelink records and his evidence before the SSAT indicate that he had earlier referred to a court appointment.
Mr Longstaff did not dispute that he refused to sign the EPP on 20 October 2011 because he did not think the terms were applicable and relevant for his circumstances. He nevertheless subsequently signed an EPP. I do not consider the reasons he gave for his failure to sign the EPP on 20 October 2011 were objectively reasonable in the circumstances.
Mr Longstaff’s evidence regarding his subsequent participation failures is confused and lacking in sufficient detail to enable me to conclude that he had a reasonable excuse for his failures to attend.
It was Mr Longstaff’s evidence that he had important appointments to attend to in preference to his obligation to sign an EPP which he did at a subsequent appointment.
Mr Longstaff’s evidence regarding his subsequent participation failures is confused and lacking in sufficient detail to enable me to conclude that he had a reasonable excuse for his failures to attend. Mr Longstaff did not dispute the evidence that on each occasion he was given prior notification of the appointments.
Even if I accept that he was confused as to the precise dates of the appointments, I do not accept that any of the reasons as to why he failed to attend his appointments or attended the appointments after the scheduled time, were objectively reasonable in the circumstances. None of the reasons given by Mr Longstaff fall within the matters that can be taken into account under section 5 of the Reasonable Excuse Participation Payment Obligations outlined in paragraph 6 above. There was no evidence that he did not have access to safe secure or adequate housing at the relevant time. It was not his evidence that he had an illness or impairment that prevented him from attending his scheduled appointments. His evidence regarding his drug dependency was not relevant to the time of the scheduled appointments. There was no evidence that Mr Longstaff lacked the capacity to undertake a serious failure requirement. In fact he was undertaking community service obligations at the time which he considered were more important than his social security obligations.
Where there is a conflict between the reasons recorded by Centrelink as evidenced in the T documents and Mr Longstaff’s evidence as to why he failed to attend the scheduled appointments, I prefer the evidence contained in the T documents which was recorded by Centrelink officers at the time that the information was provided by Mr Longstaff. Mr Longstaff said during his evidence at the hearing before me that due to the passage of time he was confused as to the dates and some of the detail of the scheduled appointments.
Mr Longstaff did not provide any acceptable explanation for his failure to attend his appointment on 4 November 2011. It was his evidence that the reason he did not attend was either due to his community service obligations or his court appearance however he had not provided these explanations to Centrelink during previous interviews. Centrelink had recorded that he was hanging out with his half sister who was visiting from New South Wales. Mr Longstaff did not dispute that his sister had visited from New South Wales on 1 November. In the absence of any acceptable explanation from Mr Longstaff as to why he did not attend his appointment on 4 November 2011, I am unable to conclude that he had a reasonable excuse.
CONCLUSION
As stated above, I accept the evidence that Mr Longstaff committed connection failures on 12 October, 20 October, 28 October and 2 November 2011 and a no show no pay failure on 27 January 2012. For the reasons outlined, I am not satisfied that Mr Longstaff had a reasonable excuse for any of these participation failures as this term is understood and defined in the legislation and has been interpreted by the authorities. Such failures constitute a clear pattern of non-compliance justifying the penalties prescribed in the legislation and an eight week serious failure period during which new start allowance is not payable. I accordingly affirm the decision of the SSAT which affirmed earlier decisions relating to connection failures, a no show failure and a serious failure for persistent non-compliance.
I further accept the Secretary‘s submission regarding the application of section 42R on the basis that Mr Longstaff has informed the Secretary that he intends to comply with a serious failure requirement.
| I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of |
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Administrative Assistant
Dated
| Date(s) of hearing | 16 October 2012 |
| Applicant | In person |
| Counsel for the Respondent | Mr Brian Sparkes |
| Solicitors for the Respondent | Centrelink - Program Litigation and Review Branch |
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