Bogomaz and Secretary, Department of Social Services (Social services second review)

[2020] AATA 652

Bogomaz and Secretary, Department of Social Services (Social services second review) [2020] AATA 652 (24 March 2020)

Division:                  GENERAL DIVISION 

File Number:           2019/1769

Re:Victor Bogomaz 

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT  

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member  

Date:24 March 2020  

Place:Sydney

The Tribunal affirms the decision of the AAT1.

...........[sgd].................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – employment pathway plan – mutual obligation requirements – taxi driver – mutual obligation failure – Newstart allowance suspended – reconnection requirement – four weeks – failure to satisfy the reconnection requirement – Newstart allowance cancelled – decision affirmed

LEGISLATION

Social Security (Administration) Act1999 (Cth)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

24 March 2020

1. On 30 October 2014, the applicant was granted Newstart Allowance (Newstart).

2. On 29 August 2018, his Newstart payments were suspended (from 16 August 2018)[1] and then, on 26 September 2018, cancelled.[2]

   [1] T13, page 115.

   [2] T13, page 117.

3. On 5 October 2018, he made a fresh claim for Newstart,[3] which was approved as at 5 October 2018.[4]

   [3] T10, page 70.

   [4] T13, page 119.

4. Meanwhile, the applicant challenged the decision of 26 September 2018 to cancel his Newstart payments but the decision was affirmed by an Authorised Review Officer (ARO) on 4 December 2018.[5] As such, the applicant did not receive Newstart for the period between 16 August 2018 and 4 October 2018 (the relevant period). The Applicant claims that he was entitled to receive Newstart during the relevant period.

   [5] T9, page 63.

5. On 22 February 2019, the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT1) affirmed the decision of the ARO dated 4 December 2019 to cancel the applicant’s Newstart allowance.[6] The applicant seeks review of the decision of the AAT1 (the reviewable decision).[7]

   [6] T2, pages 6-8.

   [7] T2, pages 6-8.

   THE HEARING

6. At the hearing the applicant appeared unrepresented, assisted by an interpreter of the Russian language, who was not called upon. It appeared that the applicant had a good command of English, consistent with his educational background and his studies in law.

7. The evidence before the Tribunal was contained within the T-documents, the evidence filed by the applicant and the oral evidence of the applicant.

8. On 20 July 2018, the applicant entered into an Employment Pathway Plan (EPP) and agreed to be bound by its terms.[8] The EPP contained fairly standard provisions including a requirement to engage in active job seeking and maintain communication with his employment provider. Specifically, the applicant agreed:

   I understand that I can have my Job Plan reviewed at any time to reflect any changes in my circumstances and the ways my provider will help me.

   I understand that my Job Plan has activities that I must do and appointments and job interviews I must attend in order to receive income support payments under social security law. I understand that if I don’t participate in the activities or attend the appointments or job interviews, my income support payment will be suspended. If I persistently fail to comply with my requirements, I understand my income support payment may be reduced or cancelled.[9]

   [8] T12, page 108.

   [9] T12, page 110.

9. Under the heading Mutual Obligation Requirements, the applicant agreed as follows:

   I agree to search for work by contacting 12 employers per month, including any to which my provider refers me.  I agree to report and provide evidence of these job search contacts to my provider as directed by the 28^th of each month…[10]

   [10] T12, page 108.

10. The applicant gave evidence that during the relevant period he worked between 10-15 hours per week as a taxi driver. He says that this is what he told his job search supervisor, Mr Mann on 17 August 2018.  He says that Mr Mann told him that, if he was so engaged, he did not need to meet the threshold job search requirements, being not less than 12 interviews per month. The applicant stated that he and Mr Mann agreed to meet again on 31 August 2018.

11. The applicant says that on 28 August 2018 he was summoned to the Maroubra job search office by a colleague of Mr Mann’s by the name of Mr Fhipps. He says that he told Mr Fhipps what Mr Mann had told him. He says that Mr Fhipps discounted this explanation and said that his failure to engage in the required degree of job search constituted a Mutual Obligation Failure (MOF), for which he would be suspended. He was in fact suspended the following day, being 29 August 2018. The applicant was sent a letter dated 29 August 2018, which stated:

    What you need to do

    If you have not already done so, you need to call your Employment Service Provider as soon as possible…to:

    discuss the reasons you did not meet this requirement, and

    if required, receive more information on what you need to do to have your payment restarted’.

    If you do not do this

    If you do not call your provider and meet the requirement they have given you, your payment may be cancelled.[11]

    [11] T13, page 115.

12. In accordance with the notice, the applicant was required to establish contact with his Employment Service provider and meet his reconnection requirement within four weeks.

13. At 9:00am on 29 August 2018, the applicant was advised by text message that his Newstart allowance was suspended, and of the reconnection requirement.

14. The applicant argued that Mr Fhipps decided wrongly that his work as a taxi driver did not satisfy the threshold job search requirements. He says that he should at least have taken account of the conflicting advice given by Mr Mann.

15. The applicant alleges that before 16 August 2018 the Department of Social Services (now named Services Australia) accepted that his part time work as a taxi driver exempted him from the job search requirements.

16. The applicant therefore advanced the following arguments:

    ·there was no MOF because his EPP was impliedly amended as a result of communications with his employment service provider, and that therefore the decision to suspend his Newstart was invalid; or

    ·alternatively, he has a reasonable excuse for the breach relied upon, in that he was given false information by his job search supervisor on the 17 August 2018, and that is why he failed to attend further job search interviews.

17. The respondent submitted: -

    (a)the applicant failed to comply with the job search requirement that formed part of his EPP, and that constituted a ‘mutual obligation failure’ under section 42AC(1)(d) of the Social Security (Administration) Act1999 (Cth) (The Administration Act);

    (b)the applicant failed to rectify the situation (the reconnection requirement) by providing evidence to support his compliance with the EPP. Section 42AM(3)(b) of the Administration Act provides that the reconnection requirement must be satisfied within four weeks after the Applicant is notified;

    (c)There is no evidence or contemporaneous file notes made by the Department to support the claim of wrongful advice. Even if the applicant was given wrong advice, it would not of itself amend his EPP; and the applicant’s failure to comply with the strict terms of the plan led inevitably to his suspension and subsequent cancellation.

    (d)whether or not he had a ‘reasonable excuse’ for failing to comply with the 28 August deadline (in relying on advice), this could not rectify his failure to provide information within four weeks as required by the Administration Act; and

    (e)given the above, and statutory provisions, especially section 42AM of the Administration Act, the Tribunal has no discretion but to affirm the decision.

18. I refer to two Profit and Loss Statements provided by the applicant. Both statements referred to his activities as a taxi driver. According to the respondent, these statements were lodged by the applicant on 29 August 2018 and 16 November 2018 respectively.

19. The first statement is dated 3 August 2018 and relates to the period 1 April 2018 to 30 June 2018.[12] Whilst provided on 29 August 2019, the stated period of employment is outside the relevant reconnection period. The second statement is dated 14 November 2018 and relates to the period 8 August 2018 to 16 November 2018.[13] Whilst the stated employment period is relevant, it was provided outside the required reconnection period.

    [12] T6, page 52.

    [13] T6, page 59.

20. On 13 November 2018, a Centrelink file note records:

    Victor said he commenced a new self-employment from 08.08.2018 and his DES provider Michael initially advised him he did not need to look for work.  When he attended appt on 29.08.2018 they told him he still have to look for work and to lodge his job searches.  He contacted CLK SC they told him to get the profit and loss for 08.08.18 to 08.09.18, he was trying to get the profit and loss completed by his accountant and arranging payment for the accountant and able to get this profit and loss on 28.09.18 only, by this time his payment already cancelled.  Its not his fault, he did not have do job search when he is working 15 hours equivalent work.[14] [replicated as in original]

    [14] T10, page 73.

21. The applicant also sought an exemption from his job search requirements based on medical grounds. On 26 September 2018, a Centrelink file note records that:

    CUS dispute Job Search requirements due to medical reasons states, he was applying for an exemption at the time, SO advised no current exemption on file, last exemption on MC ended on the 5/08/18.[15] [replicated as in original]

    [15] T10, page 69.

22. There is no reference in this exchange to the conversation with Mr Mann or any supposed amendment of the EPP.

    CONSIDERATION

23. I have considered each limb of the applicant’s argument and neither is sustainable.

24. I note that the EPP does contain the paragraph (quoted above) which pertains to possible amendment. It states:

    I understand that I can have my Job Plan reviewed at any time to reflect any changes in my circumstances and the ways my provider will help me.

25. This might provide some grounds for supporting the applicant’s belief that amending his EPP was possible, but I am not persuaded that anything that passed between Mr Mann and the applicant was grounds for belief that an amendment had in fact occurred.

26. It stretches credulity to believe that the applicant believed that, as a result of his conversation with Mr Mann on 17 August 2018, his EPP had been amended in so casual a way.

27. I note his previous direct approaches to Centrelink to seek amendment of the EPP on medical grounds. This had failed to result in any amendment of the EPP. This must surely have caused the applicant to believe that amending the EPP was not a simple matter.

28. There is a specific reference in a file note to the importance of stressing to the applicant that the EPP remained on foot despite his concerns about his health.[16] The file note records:

    In the event the Jobseeker contacts Centrelink to lodge Medical Documentation in order to seek a medical exemption from his COMPULSORY PARTICIPATION REQUIREMENTS, please ensure that you read his ESAT report and ensure care and diligence is carried out before giving him any further medical exemption. [replicated as in original]

    [16] T10, page 67.

29. The contents of this conversation, taken at its highest, would not provide a foundation for a reasonable belief that he was relieved of reporting and job search requirements under the EPP.

30. It is quite clear that the applicant failed to comply with the terms of his EPP and after receiving the cancellation advice, failed, within four weeks, to reconnect with the Department in the required way. I note that he did provide information to the Department concerning his taxi driving in the form of the second Profit & Loss Statement dated 16 November 2019, and that he was subsequently reinstated by Centrelink, but this information was clearly provided after the expiration of the four week period.

    DECISION

31. I therefore affirm the decision of the AAT1.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..........[sgd]............................

Associate

Dated: 24 March 2020

Date of hearing:	3 March 2020
Applicant:	In person
Solicitors for the Respondent:	Ms Claire Campbell, Services Australia