Booker and Secretary, Department of Employment

[2017] AATA 1296

Booker and Secretary, Department of Employment [2017] AATA 1296 (17 August 2017)

Division:GENERAL DIVISION

File Number:           2017/1104

Re:Daniel Booker

APPLICANT

AndSecretary, Department of Employment

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:17 August 2017

Place:Brisbane

The Tribunal affirms the decision under review.

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Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – failure to attend employment provider appointments – overpayment – where no reasonable excuse – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (Reasonable Excuse – Participation Payment Obligations)(DEEWR) Determination 2009 (No.1)

REASONS FOR DECISION

Member D K Grigg

17 August 2017

BACKGROUND

1. Mr Booker has been a recipient of the Newstart Allowance (“NSA”) since 14 March 2016.[1] In or around that date Mr Booker entered into a compulsory Newstart Employment Pathway Plan with an employment provider, Max Employment Pialba (“Max Employment”) pursuant to which:[2]

   (a)Mr Booker agreed to “attend appointments with the provider to discuss job seeking progress, as required”; and

   (b)Max Employment was obligated to notify Mr Booker when those appointments would occur.

   [1]           Exhibit 1, T Documents, T16, page 94, Allowance Benefit History.

   [2]           Exhibit 1, T Documents, T16, page 116, Plan Summary.

2. On 7 July 2016, Mr Booker did not attend the scheduled appointment with Max Employment,[3] and, as a result, Mr Booker was required to attend a re-engagement appointment. Max Employment records indicate that:[4]

   (a)on 4 August 2016, Mr Booker was notified by telephone that he needed to attend a re-engagement appointment on 8 August 2016; and

   (b)Mr Booker was warned that if he failed to attend this appointment that his NSA may be stopped or that penalties may apply.

   [3]           Exhibit 1, T Documents, T15, page 82, Centrelink records.

   [4]           Exhibit 1, T Documents, T4, pages 36 – 38, Provider Appointment Report dated 8 August 2016; T16, Page 112,

   Notification text details dated 4 August 2016.

3. However, on 8 August 2016, Mr Booker failed to attend the re-engagement appointment.[5] According to the Participation Compliance Workflow Summary, Mr Booker told Centrelink later that day that he had attended the appointment late due to having an afternoon nap and that as a result had rescheduled another appointment for 10 August 2016.[6]

   [5]           Exhibit 1, T Documents, T4, pages 36 – 38, Provider Appointment Report dated 8 August 2016.

   [6]           Exhibit 1, T Documents, T5, pages 39 – 42, Participation Compliance Workflow Summary dated 8 August 2016.

4. On 10 August 2016, Mr Booker attended a further meeting with Max Employment. Max Employment records indicate that at that meeting (with subsequent confirmation by letter) Mr Booker was told that he needed to attend an engagement appointment on 11 August 2016.[7] Mr Booker was warned by Max Employment that if he did not attend this appointment as required that his NSA may be stopped.[8]

   [7]           Exhibit 1, T Documents, T8, pages 51 – 52, Provider Appointment Report dated 8 September 2016; T16, Pages

   114 – 115, Notification Letter from Max Employment to Mr Booker dated 10 August 2016.

   [8]           Exhibit 1, T Documents, T8, pages 51 – 52, Provider Appointment Report dated 8 September 2016; T16, Pages

   114 – 115, Notification Letter from Max Employment to Mr Booker dated 10 August 2016.

5. As a result of Mr Booker’s non-compliance with his obligations, Mr Booker was informed by the Department of Human Services (“Centrelink”) on 11 August 2016 that a reconnection failure and penalty would be applied pursuant to section 42H of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) and that the penalty period would end the day before he re-engages (“August Reconnection Failure and Penalty”).[9] The penalty amount was calculated as $107.28 for the penalty period 8 August 2016 to 9 August 2016.[10]

   [9]           Exhibit 1, T Documents, T6, pages 43 – 45, Letter from Centrelink to Mr Booker dated 11 August 2016.

   [10]          Exhibit 1, T Documents, T11, page 67, Letter from Centrelink to Mr Booker dated 20 September 2016.

6. On 11 August 2016, Mr Booker did not attend his engagement appointment at the correct time. The Participation Compliance Workflow Summary indicates that Mr Booker advised that he attended the appointment late however the employment provider informed Centrelink that Mr Booker did not attend and was not late and that no one from Max Employment saw Mr Booker on that day.[11]

   [11]         Exhibit 1, T Documents, T7, pages 46 – 50, Participation Compliance Workflow Summary dated 11 August 2016;

   T8, pages 51 – 52, Provider Appointment Report dated 8th September 2016.

7. As a result of Mr Booker’s non-compliance, Mr Booker was notified on 12 September 2016, that pursuant to section 42SC of the Administration Act, a non-attendance failure and penalty would be applied and a non-attendance failure period imposed between 11 August 2016 and 8 September 2016 (“August Connection Failure and Penalty”).[12] The penalty amount was calculated as $1,126.44 for the penalty period 11 August 2016 to 8 September 2016.[13]

   [12]         Exhibit 1, T Documents, T7, pages 46 – 50, Participation Compliance Workflow Summary dated 11 August 2016.

   [13]          Exhibit 1, T Documents, T11, page 67, Letter from Centrelink to Mr Booker dated 20 September 2016.

8. Max Employment records indicate that on 8 September 2016, Mr Booker was informed by telephone that he needed to attend an engagement appointment on 9 September 2016 and was warned that if he failed to attend, his payments may be stopped or that penalties may apply.[14]

   [14]         Exhibit 1, T Documents, T10, pages 58 – 60, Provider Appointment Report dated 15 September 2016; T16, Page

   113, Notification text details dated 8 September 2016.

9. On 9 September 2016, Mr Booker once again did not attend his regular provider appointment at the correct time.[15] The Participation Compliance Workflow Summary indicates that Mr Booker advised Centrelink that he had had an MRI appointment on that day and had forgotten about his appointment with Max Employment, but that he had since contacted them and arranged a re-engagement appointment for 19 September 2016.[16]

   [15]         Exhibit 1, T Documents, T10, pages 58 – 60, Provider Appointment Report dated 15 September 2016.

   [16]         Exhibit 1, T Documents, T9, pages 53 – 57, Participation Compliance Workflow Summary dated 9 September

   2016.

10. As a result of Mr Booker’s non-compliance, Mr Booker was notified on 19 September 2016 that pursuant to section 42SC of the Administration Act, a non-attendance failure and penalty would be applied and a non-attendance failure period imposed (“September Reconnection Failure and Penalty”).[17] The penalty amount was calculated as $322.00 for the penalty period 9 September 2016 to 18 September 2016.[18]

    [17]         Exhibit 1, T Documents, T9, pages 53 – 57, Participation Compliance Workflow Summary dated 9 September

    2016.

    [18]          Exhibit 1, T Documents, T11, page 67, Letter from Centrelink to Mr Booker dated 20 September 2016.

11. In the notification letter of 12 September 2016 sent to Mr Booker from Centrelink, Centrelink informed Mr Booker that the decision had been made that he did not have a reasonable excuse for not attending his provider appointment on 11 August 2016 and that as a result a non-attendance failure penalty had been applied to his NSA. Centrelink also wrote that its records showed that on 9 September 2016, Mr Booker no longer needed to reconnect and that this therefore means he has lost his payments from 11 August 2016 to 8 September 2016. Centrelink advised Mr Booker that the penalty amount would be taken out of his current payment and, if there was any balance owing, the remainder would be taken out of any future payments. Centrelink reminded Mr Booker that he was still required to attend an appointment with his employment services provider and to agree to a job plan and that if he was unable to do so he needed to provide a valid reason prior to the appointment time or he may incur further penalties.[19]

    [19]         Exhibit 1, T Documents, T11, pages 61 – 62, Letter from Centrelink to Mr Booker dated 12 September 2016.

12. In the notification letter of 19 September 2016 sent to Mr Booker from Centrelink, Centrelink again informed Mr Booker that the decision had been made that he did not have a reasonable excuse for not attending his provider appointment on 9 September 2016 and that as a result a non-attendance failure penalty had been applied to his NSA. Centrelink also wrote that its records showed that on 19 September 2016, Mr Booker no longer needed to reconnect and that this therefore means he has lost his payments from 9 September 2016 to 18 September 2016. Centrelink advised Mr Booker that the penalty amount would be taken out of his current payment and, if there was any balance owing, the remainder would be taken out of any future payments.[20]

    [20]         Exhibit 1, T Documents, T11, pages 64 – 65, Letter from Centrelink to Mr Booker dated 19 September 2016.

13. On 20 September 2016, Centrelink sent Mr Booker details of the financial penalty amounts owing to his failure to attend the 3 appointments in August and September 2016. Centrelink confirmed that the total penalty amount remaining, as at 20 September 2016, was $285.96.[21]

    [21]         Exhibit 1, T Documents, T11, pages 67 – 68, letter from Centrelink to Mr Booker dated 20 September 2016.

    Claims History

14. Mr Booker requested a review of Centrelink’s decision of 19 September 2016 to apply the August Reconnection Failure and Penalty, August Connection Failure and Penalty and September Reconnection Failure and Penalty. The Authorised Review Officer (“ARO”) affirmed Centrelink’s decision of 19 September 2016 on the grounds that there were no valid reasons for failing to attend his provider appointments.[22]

    [22]         Exhibit 1, T Documents, T14, pages 75 – 81, Decision of Authorised Review Officer and notes dated 5        November 2016.

15. Mr Booker then sought a further review with the Social Services and Child Support Division of this Tribunal (“SSCSD”). The SSCSD rejected Mr Booker’s claim and affirmed the ARO’s decision on 2 February 2016.[23]

    [23]         Exhibit 1, T Documents, T2, pages 6 – 12, SSCSD’s Decision and Reasons for Decision dated 2 February 2017.

16. On 27 February 2016, Mr Booker lodged an application for review of the SSCSD’s decision to this Tribunal.[24]

    [24]         Exhibit 1, T Documents, T1, pages 1 – 5, Application for Review dated 27 February 2016.

    RELEVANT LEGISLATION

17. A recipient of NSA is, subject to exceptions that are not relevant here, required to actively seek and be willing to undertake paid work in Australia, other than paid work that is unsuitable (“activity test”): section 601 of the Social Security Act 1991 (Cth) (“the Act”).

18. If the person fails to comply with a requirement in a Newstart Employment Pathway Plan that is in force, a person is taken not to satisfy the activity test.

19. If a person receives an instalment of the participation payment in a period in which a person fails to attend an appointment that they are required to attend under an employment pathway plan, the Secretary may determine that the person commits a connection failure: sections 42E(1), 42E(2)(c) of the Administration Act.

20. However the Secretary must not determine that a person commits a connection failure if the person satisfies the Secretary that the person has a reasonable excuse for the failure: section 42E(4)(a) of the Administration Act.

21. If the Secretary has determined that a person has committed a connection failure or fails to attend an appointment that the person is required to attend under an employment pathway plan, then the Secretary determines under section 42SA(1) of the Administration Act that the participation payment is not payable to the person and the Secretary must require the person to comply with the requirement: section 42G of the Administration Act.

22. Similarly, the Secretary may determine that a person commits a reconnection failure if the person was required to comply with a reconnection appointment and fails to do so: section 42H(1) of the Administration Act. However, the Secretary must not determine that a person commits a reconnection failure if the person satisfies the Secretary the person has a reasonable excuse for the failure: section 42H(3) of the Administration Act.

23. If the Secretary has determined the person has committed a reconnection failure, the person commits a failure during the period that begins on the day the person commits a failure and ends on the day before the person complies with any further reconnection requirement imposed: section 42H(4) of the Administration Act.

24. The Social Security (Reasonable Excuse – Participation Payment Obligations)(DEEWR) Determination 2009 (No.1) (“the Reasonable Excuse Determination ”) sets out the matters that must be taken into account in deciding whether a person has a reasonable excuse for committing a connection failure or a reconnection failure: section 42U(1) of the Administration Act.

25. Pursuant to section 5(3) of the Reasonable Excuse Determination, 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.

26. Pursuant to section 5(2) of the Reasonable Excuse Determination, the Secretary must, relevantly, take into account the following matters:-

    ...

    (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;

27. Section 42UA of the Administration Act provides that an excuse cannot be a reasonable excuse unless prior notice has been given to the employment provider and unless the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give the notification.

28. The method for determining the penalty amounts for reconnection and connection failures is set out in the Social Security (Administration) (Penalty Amount) Determination 2015 (No.1) which is a legislative instrument created under section 42T of the Administration Act. It is not necessary for the purposes of this decision to set out how the penalty amounts were determined.

    ISSUES FOR DETERMINATION

29. The issues for determination are whether or not:

    (a)Mr Booker committed a reconnection failure in August 2016 – the August Reconnection Failure; and, if yes

    (b)Mr Booker had a reasonable excuse for the August Reconnection Failure;

    (c)Mr Booker committed a connection failure in August 2016 – August Connection Failure; and, if yes,

    (d)Mr Booker had a reasonable excuse for the August Connection Failure;

    (e)Mr Booker committed a reconnection failure – the September Reconnection Failure; and, if yes

    (f)Mr Booker had a reasonable excuse for the September Reconnection Failure.

    AUGUST RECONNECTION FAILURE

    Was Mr Booker aware of his appointment obligation on 8 August 2016?

30. At the beginning of the hearing, Mr Booker did not dispute that he was aware of his appointment obligation on 8 August 2016. Later in the hearing, Mr Booker said he did not recall whether he was aware of the appointment or not. However, Max Employment records indicate that Mr Booker was informed about the appointment and provided the requisite warning. Mr Booker also, of his own volition, attended at Max Employment’s premises on 8 August 2016, albeit late, which indicates that he was aware that he had an appointment on that day.

31. The evidence supports a finding that Mr Booker was aware of the re-engagement appointment of 8 August 2016.

    Did Mr Booker notify Max Employment or Centrelink of his inability to attend the appointment?

32. At the beginning of the hearing, Mr Booker did not dispute that he had made no attempts to notify Max Employment that he was unable to attend the appointment. Later in the hearing, Mr Booker said he did not recall whether he had notified them or not but he did not think so. Mr Booker confirmed that he had no evidence that he had made any contact or attempts to contact Max Employment in advance of the appointment.

33. Max Employment and Centrelink have no record of Mr Booker having made any attempt to notify them in advance of his inability to attend the re-engagement appointment.

34. The evidence supports a finding that Mr Booker did not notify Max Employment or Centrelink in advance of his inability to attend the appointment on 8 August 2016.

    Did Mr Booker have a reasonable excuse for the August Reconnection Failure?

35. The excuse given by Mr Booker for why he committed the August reconnection failure is that he had an afternoon nap and was too busy to get there on time.[25]

    [25]         Exhibit 1, T Documents, T5, pages 39 – 42, Participation Compliance Workflow Summary dated 8 August 2016;

    T4, page 37, Provider Appointment Report dated 8 August 2016.

36. At the hearing, Mr Booker acknowledged that this was the reason for his failure to attend and said that the reason he was asleep was because he had been on painkillers to treat the pain he was experiencing due to his Scheuermann’s disease. Mr Booker said when he attended the appointment late, he rescheduled it for 10 August 2016.

37. There is no corroborating medical evidence that Mr Booker had in fact overslept due to the consumption of painkillers. However, even if there was, he should have taken other steps to ensure that he attended the appointment on that day, given the potential penalty that could be incurred.

38. I find that there is no reasonable excuse for the August Reconnection Failure and that it was therefore appropriate for the August Reconnection Failure and Penalty to be applied.

    AUGUST CONNECTION FAILURE

    Was Mr Booker aware of his appointment obligation on 11 August 2016?

39. Mr Booker’s evidence was somewhat contradictory. At the beginning of the hearing, Mr Booker said he did not dispute that he was aware of his appointment obligation. However, later in the hearing, Mr Booker said he did not recall whether he was aware of the appointment or not. At other times during the hearing, Mr Booker said he did not understand why he had needed to attend another appointment on 11 August 2016 when he had already attended an appointment the day before.

40. The SSCSD division records that Mr Booker gave evidence that he had “been aware of the appointment but that he was sure Max Employment was conspiring against him to prevent his transfer to another provider and as a result did not want to go to this appointment because he did not want to engage with them anymore and they refused to accept this”.[26] At the hearing, Mr Booker originally confirmed that this was the evidence he gave, however he later disputed this evidence and said he had not been aware of when his appointment was scheduled.

    [26]         Exhibit 1, T documents, T2, pages 6-12, SSCSD’s Decision and Reasons for Decision dated 2 February 2017,

    para 14.

41. Mr Booker became quite agitated during the hearing when discussing the steps taken by Max Employment and Centrelink to apply a penalty in relation to the August Reconnection Failure. Clearly, Mr Booker considered that that was a particularly harsh decision at the time and had, as a result, determined that he wished to be assigned to an alternative employment provider. At the hearing, Mr Booker told the Tribunal that he had been unhappy with Max Employment because he had been penalised and they were not helping him to get work and therefore he felt there was no need to attend the reconnect appointment. Mr Booker acknowledged that he had also been charged with assaulting a staff member of Max Employment when he had pulled a chair out from underneath them when he thought that they were belittling him and treating him unfairly.[27] Mr Booker said in his opinion the best thing was for him to stay away from Max Employment in order to ensure that the situation did not get out of hand again.

    [27]         See also Exhibit 1, T Documents, T4, page 37, Provider Appointment Report dated 8 August 2016.

1. Max Employment records indicate that Mr Booker was informed about the appointment and provided the requisite warning. The ARO notes record that Mr Booker said he no longer wanted to participate with Max Employment because of his payments having been suspended.[28]

   [28]         Exhibit 1, T Documents, T14, page 81, ARO notes.

2. The evidence supports a finding that Mr Booker was aware of the connection appointment of 11 August 2016.

3. There is also no dispute by Mr Booker that he failed to attend the 11 August 2016 connection appointment.

   Did Mr Booker notify Max Employment or Centrelink of his inability to attend the appointment?

4. There is no evidence that Mr Booker contacted the Department or his employment provider nor is there any corroborating evidence that Mr Booker arrived at the employment provider on that day, albeit late.

   Did Mr Booker have a reasonable excuse for the August Connection Failure?

5. Mr Booker advised that he attended the appointment late but that the provider was unable to see him. However Max Employment informed Centrelink that Mr Booker did not attend and was not late and that no one saw Mr Booker on that day.[29]

   [29]         Exhibit 1, T Documents, T7, pages 46 – 50, Participation Compliance Workflow Summary dated 11 August 2016;

   T8, pages 51 – 52, Provider Appointment Report dated 8th September 2016.

6. I find that there is no reasonable excuse for the August Connection Failure and that it was therefore appropriate for the August Connection Failure and Penalty to be applied.

   SEPTEMBER RECONNECTION FAILURE

   Was Mr Booker aware of his appointment obligation on 9 September 2016?

7. Again, Mr Booker’s evidence was somewhat contradictory. At the beginning of the hearing, Mr Booker said he did not dispute that he was aware of his appointment obligation. However, later in the hearing, Mr Booker said he did not recall whether he was aware of the appointment or not. At one stage during the hearing, Mr Booker acknowledged that he possibly knew of the appointment on 9 September 2016 however he also said that he probably did not attend because he was working but he could not remember.

8. Max Employment’s records indicate that Mr Booker was notified by telephone on 8 September 2016, of the appointment on 9 September 2016 and was given a compliance warning.

9. In the circumstances, I find that Mr Booker was aware of the appointment on 9 September 2016.

10. There is no dispute that Mr Booker failed to attend the appointment.

    Did Mr Booker have a reasonable excuse for the September Reconnection Failure?

11. Subsequent to the scheduled appointment, Mr Booker advised Centrelink that he had had an MRI on 9 September 2016 and had forgotten about the reconnection appointment.[30] Mr Booker told the Tribunal that he was having ongoing back pain related to his Scheuermann’s disease.

    [30]         Exhibit 1, T Documents, T9, pages 53 – 57, Participation Compliance Workflow Summary dated 9 September

    2016.

12. On 29 September 2016, a senior customer service advisor at Centrelink had a telephone interview with Mr Booker regarding the reasons he had repeatedly failed to attend his provider appointments. According to the Participation Compliance Workflow Summary, Mr Booker had some significant medical conditions (namely schizophrenia, depression, and Scheuermann’s disease) that had not been thoroughly diagnosed. A medical certificate prepared by Dr Karunakaran Muthuthamby dated 22 September 2016 states that Mr Booker:[31]

    (a)has lower and upper spine pain, which is an exacerbation of an existing condition, and is unable to lift anything;

    (b)has a pre-existing Schuermann’s disease based on an x-ray report and that he is awaiting specialist opinion; and

    (c)was unfit for work between 22 September 2016 and 16 October 2016.

    [31]         Exhibit 1, T Documents, T13, page 74, Medical Certificate of Dr Muthuthamby dated 22 September 2016.

13. However, there is no corroborating evidence that:

    (a)Mr Booker had an MRI on 9 September 2016;

    (b)Mr Booker was unable to notify the Department or the employment provider of his inability to attend the appointment;

    (c)Mr Booker has been diagnosed with schizophrenia and depression;

    (d)Mr Booker’s medical conditions caused him to forget his appointment.

14. Further, the evidence available shows that Mr Booker had been able to maintain employment prior to 22 September 2016, which Mr Booker confirmed at the hearing. That is, there is no evidence that Mr Booker’s medical conditions were having a significant impact on his capacity to comply with his obligations.[32]

    [32]         See section 5(3) of the Reasonable Excuse Determination.

15. I find that there is no reasonable excuse for the September Reconnection Failure and that it was therefore appropriate for the September Reconnection Failure and Penalty to be applied.

    CONCLUSION

16. Mr Booker’s appeal fails.

17. The decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate

Dated: 17 August 2017

Date of hearing:	7 August 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services