Azarcon and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 360

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 360

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2007/1748

GENERAL ADMINISTRATIVE DIVISION		)
Re		HERMENIA AZARCON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORK PLACE RELATIONS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date5 May 2008

PlaceSydney

Decision The decision under review is affirmed.

.....................(Sgd).........................

Dr J D Campbell, Member

CATCHWORDS     Social Security – Newstart Allowance – Participation failures – Issue of reasonable excuse – Imposition of penalty – Decision under review affirmed.

Social Security Act 1991, sections 605, 624, 629

Social Security (Reasonable Excuse) DEWR Determination 2006

REASONS FOR DECISION

5 May 2008               Dr J D Campbell, Member

1.      Ms Azarcon was born in the Philippines in 1955 and, after schooling, worked in hotel management with experience in the accounting department. In 1989 Ms Azarcon came to Australia on a visitor’s visa. Ms Azarcon applied for and was granted permanent residency in Australia in 2001, with her sister as her sponsor.

2.      Ms Azarcon considered herself to have a range of skills including embroidery, computer applications and financial services (book keeping), which are of significance in assisting in obtaining employment.

3.      Ms Azarcon was first granted Newstart Allowance on 18 July 2003. On 6 December 2005, Ms Azarcon signed a new activity agreement with her Job Network Member, WorkDirections Australia in Bondi Junction.

4.      The agreement signed with WorkDirections set out the activities Ms Azarcon must undertake in order for Newstart Allowance to be payable to her. The agreement also nominated circumstances in which all or part of the allowance may not be paid. These circumstances included Ms Azarcon failing to attend her appointment with her Job Network Member, including requests to negotiate a new activity agreement.

5.      On 19 September 2006, WorkDirections Australia sent Ms Azarcon a letter reminding her of her existing activity agreement and that she was required to attend an appointment on 29 September 2006 to discuss such matters and, further, was reminded of what could happen if she failed to attend. Ms Azarcon did not attend.

6.      A further letter of similar content was forwarded to Ms Azarcon by the Job Network Member on 30 September 2006 for an appointment on 13 October 2006. Ms Azarcon telephoned WorkDirections on 13 October 2006 to indicate that she would not be attending the appointment, as she was dissatisfied with the service she had received. Ms Azarcon was advised that non-attendance may result in a breach of her agreement.

7.      On 17 October 2006, Centrelink received advice from WorkDirections Australia that Ms Azarcon had failed to enter into, or vary, an activity agreement.

8.      On 24 October 2006, Centrelink advised Ms Azarcon that failure to enter into an activity agreement with a Job Network Member, without reasonable excuse, may be considered as having committed a ‘participation failure’, while three participation failures in 12 months could lead to her payments being stopped for eight weeks.

9.      Centrelink discussed job network appointments with Ms Azarcon on 26 October 2006, with Centrelink scheduling a reconnection appointment for Ms Azarcon with Work Place Australia on 30 October 2006. Centrelink also informed Ms Azarcon that the excuse given for not entering into a new agreement was not reasonable, and that she had committed her first participation failure within a 12 month period.

10.     On 27 October 2006 Ms Azarcon, during a telephone call from WorkDirections Australia, advised that she would not be attending any appointments with WorkDirections Australia, as they were not assisting her in securing employment.

11.     On 31 October 2006 Centrelink made a decision that, as Ms Azarcon had not attended on 30 October 2006, she had committed a further participation failure. Centrelink advised Ms Azarcon of this decision in a letter dated 31 October 2006, and indicated that her payments would be suspended from 26 October 2006, unless she did what she was asked to do.

12.     In response, Ms Azarcon contacted Centrelink on 31 October 2006, and a further reconnection appointment was made with WorkDirections Australia on 1 November 2006. Ms Azarcon failed to attend this appointment.

13.     In a telephone discussion between Ms Azarcon and a Centrelink social worker on 9 November 2006, Ms Azarcon advised that her non-attendance at the meeting on 1 November 2006 was because of her intention to transfer to another Job Network provider. Despite being provided with information of how to transfer, Ms Azarcon refused to participate in a transfer to another provider and to enter into an activity agreement.

14.     On 9 November 2006, WorkDirections Australia contacted Ms Azarcon concerning a rapid reconnection appointment, the option of transferring to another provider, and the consequence of not attending an appointment or sign an activity agreement. Ms Azarcon declined all options put to her.

15.     On 15 November 2006, Centrelink sent a letter to Ms Azarcon informing her of her failure to attend an appointment on 1 November 2006 and, unless she had a reasonable excuse, her payments would be stopped for eight weeks.

16.     On 22 November 2006, Ms Azarcon applied for a review of the decision to impose an eight week non-payment period from 20 November 2006.

17.     On 1 December 2006, Centrelink decided that Ms Azarcon had committed a third participation breach by not attending the appointment on 1 November 2006, and advised Ms Azarcon accordingly that she would not be paid Newstart Allowance for the period 27 October 2006 to 21 December 2006.

18.     On 1 December 2006, Centrelink again discussed Ms Azarcon’s obligations with her and a reconnection appointment was made with WorkDirections Australia for 1 December 2006. Ms Azarcon did not attend such an appointment, as she was of the view that there was no point in attending as she was already appealing the Centrelink decision to suspend her payment.

19.     On 5 January 2007, Ms Azarcon was advised by Centrelink that a third participation failure had occurred within 12 months (the 1 December 2006 participation failure), with suspension of her Newstart Allowance from 8 December 2006 to 1 February 2007.

20.     On 10 January 2007, Centrelink, noting that Ms Azarcon had previously been advised that the eight week suspension of her Newstart Allowance would not occur whilst the review was in progress, confirmed that the review had been completed and that a participation failure had been committed and that her Newstart Allowance would not be payable from 8 December 2006 to 1 February 2007.

21.     On 11 January 2007, an Authorised Review Officer reviewed the decision and affirmed the decision to impose an eight week non-payment period. This decision was affirmed by the Social Security Appeals Tribunal in their decision of 5 April 2007.

Issues

22.     The issues to be determined in this matter are:

a)Whether Ms Azarcon had committed Newstart participation failures and, if so;

b)Whether Ms Azarcon had a reasonable excuse for committing such failures, and;

c)If Ms Azarcon had committed three participation failures within a 12 month period, whether she ought to be subject to an eight week non-payment period of her Newstart Allowance.

Decision

23.     For the reasons stated later in this decision, I find that:

a)Ms Azarcon had committed Newstart Allowance participation failures; and

b)Ms Azarcon had no reasonable excuse for committing such a failure; and

c)Ms Azarcon committed three participation failures in a 12 month period and that as a consequence an eight week non-payment of Newstart Allowance be imposed for the period commencing 8 December 2006 and ending 1 February 2007.

Considerations and Findings

24.     I note that Ms Azarcon did not dispute the factual aspects detailed earlier in this decision. I find the factual circumstances underlying the purported breaches to be correct.

25.     In relation to her failure to attend the appointment on 13 October 2006, Ms Azarcon had informed Centrelink that the reason for non-attendance was her dissatisfaction with the service she received from Work Place Australia. At the hearing, Ms Azarcon elaborated on her dissatisfaction to include frustration with the totality of the process, in that she would attend for interview and for various reasons she would be informed that she was not suitable for the job in contention. This led to her feeling much discouragement and a loss of self confidence with growing anxiety. Ms Azarcon stated that she would get upset because people from overseas were getting the jobs. Further, Ms Azarcon stated that she was not interested in attending for mock interviews and workshops when all she wanted was a job, a job that she had found, and still has, at a nursing home working 45 hours per week. Ms Azarcon stated that she had not consulted her doctor about her feelings of anxiety. Ms Azarcon further advised that she resided permanently at an address in Randwick, with rental outgoings of $300 per fortnight.

26.     In relation to her failure to attend a reconnection appointment on 30 October 2006, Ms Azarcon again indicated her general frustration with the process, particularly in relation to circumstances where people had been hired who are not permanent residents.

27.     In relation to her failure to attend a reconnection appointment on 1 November 2006, Ms Azarcon indicated that she wished to transfer to another job network provider as her current provider was not assisting her in securing employment.

28.     In relation to her failure to attend another reconnection appointment on 1 December 2006, Ms Azarcon stated that she did not believe she had to attend, as she was appealing a previous decision to impose an eight week non-payment of her Newstart Allowance.

29. I note the relevant legislation in this matter to include section 605 of the Social Security Act 1991 (“the Act”) which grants the Secretary the power to require a person receiving Newstart Allowance to enter into a Newstart Activity Agreement.

30. Section 624 of the Act provides that a person commits a Newstart participation failure if the person fails, without a reasonable excuse, to comply with a term of an activity agreement between the Secretary and the person.

31. Section 629 of the Act provides that if a person commits a Newstart participation failure (the repeated failure), having committed Newstart participation failures on two or more occasions in a 12 month period Newstart Allowance is not payable to a person for a period of eight weeks.

32.     I note the Social Security (Reasonable Excuse) (DEWR) Determination 2006, which commenced on 1 July 2006, in section 4(2) provides for what matters are to be taken into account in determining if a person has a reasonable excuse. Such matters include:

a)Living in a non-permanent location.

b)Significant lack of literacy and language skills.

c)Illness, impairment or condition of a person that requires frequent treatment.

d)Any cognition or neurological impairment.

e)Any psychiatric or psychological impairment.

f)Any drug or alcohol dependency.

g)Any unforeseen family or caring responsibilities of the person.

h)The death of an immediate family member.

i)Circumstances surrounding incarceration in gaol and release.

Further, I note that any of the nominated reasons only apply in situations where the Secretary is satisfied that the matter had a significant effect on the person’s capacity to comply with the requirements.

33.     In considering the failure to attend an appointment on 13 October 2006, I observe the reasons given by Ms Azarcon do not fall within the group of matters listed in the above determination. I find her excuse not to be a reasonable excuse.

34.     In considering the failure to attend a reconnection appointment with Work Place Australia on 30 October 2006, I observe that the reason given by Ms Azarcon does not fall within the group of matters listed in the above determination. I find her excuse not be a reasonable excuse.

35.     In considering the failure to attend a reconnection appointment with Work Place Australia on 1 December 2006, I observe that the reasons given by Ms Azarcon does not fall within the matters listed in the above determination. I find her excuse not to be a reasonable excuse.

36.     In the circumstances that I have found to exist, I conclude that Ms Azarcon committed three participation failures (13 October 2006, 30 October 2006 and 1 December 2006).

37. Pursuant to section 629 of the Act, I conclude that, as a consequence of those participation failures, Newstart Allowance was not payable to Ms Azarcon for a period of eight weeks commencing on 8 December 2006 and ending 1 February 2007.

38.     The decision under review is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:.........................................................................
  Associate

Date/s of Hearing  25 February 2008
Date of Decision  5 May 2008
Representative for the Applicant               self-represented

Representative for the Respondent          Ms A Garcia, Centrelink Legal Services