Benham and Secretary, Department of Family and Community Services

[2003] AATA 214

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 214

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   S2002/299

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DEAN BENHAM

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date5 March 2003

PlaceAdelaide

Decision The decision under review is affirmed.

[Sgd S P Estcourt QC)

Deputy President

CATCHWORDS

Social Security – newstart allowance – jobseeker diary stolen – reasonable steps to comply with activity agreement.

Social Security Act 1991 – s626

REASONS FOR DECISION

5 March 2003 Mr S P Estcourt QC., (Deputy President)          

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) dated 26^th July 2002, affirming a decision of the respondent’s authorised review officer of 23 April 2002 affirming the decision of an officer of the Marion office of Centrelink of 20 February 2002 to impose an activity test breach rate reduction of 18% on the applicant’s Newstart Allowance for 26 weeks from 20 February 2002 to 20 August 2002. 

2.      On 20 November 2001, Mr Benham signed an activity agreement at the Marion office, one of the requirements of which was that he complete a Jobseeker Diary for the period of 20 November 2001 to 6 February 2002 and make 10 work contacts per fortnight.

3.      The Jobseeker Diary was due to be returned to the Marion office on 20 February 2002, along with Mr Benham’s normal fortnightly application for payment form for his Newstart Allowance.

4. Section 626 of the Social Security Act 1991 (“the Act”) provides that a person incurs an activity test breach penalty if he or she fails to take reasonable steps to satisfy the requirements of an activity agreement.

5.      The “preparing for work agreement” signed by Mr Benham on 20 November 2001 contained the following provision:

“I will from 20 November 2001 to 06 February 2002 undertake 10 job search contact(s) each fortnight and record these in my Jobseeker Diary.  I will return my completed Jobseeker Diary on 06 Feb 2002.  These contact(s) will include all types of suitable work, including part-time, casual and full-time.

Of the 10 job search contact(s) I have agreed to undertake and record in my Diary:

·At least one contact per fortnight will be made through a Job Network Member;

·4 job search contact(s) each fortnight will also be recorded on my fortnightly application for payment forms from 20 Nov 2001 to 06 Feb 2002.”

6.      There were a number of factual disputes between the applicant and the respondent involving the dates on which and the particular Centrelink offices at which, Mr Benham attended, and also as to precisely what he said on those occasions and what was said to him, (and by whom), both concerning the loss of his Jobseeker Diary and the completion of a replacement.  I do not however find it necessary to resolve these factual issues as I have reached the view that Mr Benham’s appeal ought not to succeed even on his own case taken at its highest. 

7.      I set out therefore only his version of events.  The following is taken from his  statement of history and contentions:

“History

1.        This case involves a diary which was issued by Centrelink, and covered a period of roughly three months.  The diary is used by jobseekers to record various details of their jobseeking efforts, such as method of contact, time, date, company  name, whom contacted etc.

2.        I contend that it was stolen from my car (along with a Toblerone, money bag and magnetic chess set) in a laneway at the back of 270 Seacombe Road, Seacliff Park, around mid‑January 2002.  I did not report this to the police as it would be a waste of their resources.

3.        Contact with Centrelink concerning this matter occurred at the Glenelg and Marion offices, but predominantly at Glenelg.  The point I am trying to make here is that two separate offices were involved, something which the respondent seems yet to grasp.

Contentions

1.        In relation to the respondent’s statement of facts Part 6 and issues Part 1, I was concerned about a potential breach, due to my diary being stolen and consulted Kay at Marion on the 4^th February 2002 (attachment A).  I explained to her what had happened and she said she would ensure that a breach would not be recorded and lodge same in the computer when they came back on line …

2.        The next time I knew there was a problem was when I lodged my form in Glenelg on 6^th or 7^th February 2002.  Again, I explained the facts and was issued with another diary and asked to recreate it.  I replied by saying I would only be able to remember the names of some of the companies I have contacted.  At no stage was I asked to recreate it ‘to the best of my ability’.  (emphasis added)

3.        The respondent contends that I was ‘afforded the opportunity’ to recreate the diary in part of Part 5.  Words such as recreate, duplicate and facsimile mean exact (100%) replication, and that is what I thought I was being asked i.e. dates, times, companies, persons contacted – very specific information).  Therefore, I argue that what was being asked was totally unreasonable, ensuring that I would not be able to comply with the requirements of the diary.  Surely, there has to be at least a reasonable chance that what is being asked can be accomplished/complied with. 

4.        On the 20^th February I attended the Glenelg office and said that I was having difficulty trying to duplicate the original diary.  The only response was that I would be breached.  At no stage did anyone offer assistance or enquire why I was having difficulty.  I considered it a ploy by the Government to make it impossible to comply, in order to save money. …”

8.      In evidence before the Tribunal, Mr Benham said that he knew he was to take the recreated Jobseeker Diary with him on 20 February 2002 when he went to lodge his normal fortnightly application for payment form.

9.      He said that he didn’t take it with him because he was “having trouble locating all the firms”.  He said he couldn’t recall the dates, times, and specific people concerned.  He said “I couldn’t complete it to the extent they wanted”. 

10.     It should be noted however that Mr Benham also said in evidence, in answer to a question I asked of him, “I read into it that it had to be complete in every detail”..

11.     Whatever Mr Benham’s state of mind, the fact is that he didn’t write anything at all in the diary.  He said that he didn’t try.  He said that he didn’t make an attempt.  He said that he did try to record his Jobseeker contacts “on a separate piece of paper”. 

12. In my view, Mr Benham has not, in accordance with his obligations under the Act, taken “reasonable steps” to comply with the requirements of his Newstart Allowance Activity Agreement.

13.     In my view, reasonable steps would have included at the very least, taking with him when he attended the Marion office on 20 February 2002, the blank replacement diary and the piece of paper on which he had endeavoured to record his job search contacts. 

14.     Further, and again whatever Mr Benham’s state of mind was as to what was required of him, he had on, his own version of events, already explained at the Glenelg office of Centrelink on 6 or 7 February 2002, when he was issued with the replacement diary, that he “would only be able to remember the names of some of the companies I have contacted”..  That much he could have done and in my judgment that much he should have done in order to be seen as taking reasonable steps to comply with his obligations.

15.     I have little doubt that if he had done that, instead of going empty handed to Glenelg on 20 February to state that he was “having difficulty trying to duplicate the original diary”, the outcome would have been different.  Whilst Mr Benham complains that at no stage did anyone offer him assistance or enquire why he was having difficulty, he is plainly an intelligent and articulate person and I am quite satisfied that had he wanted to, he could have done the best he was capable of and handed that in with the explanation that he could do no more. 

16.     It follows from all I have said that the decision of the Tribunal is that the decision under the review be affirmed. 

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  6 February 2003
Date of Decision  5 March 2003
Counsel for the Applicant         Mr Benham appeared on own behalf
Counsel for the Respondent     Ms Lee-Anne Ogders
Solicitor for the Respondent     Centrelink