Boontiva Nilsson and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 441
[2013] AATA 441
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0816; 0818 & 0819
Re
Boontiva Nilsson
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 27 June 2013 Place Sydney The decision to deduct from Ms Nilsson’s NewStart allowance a penalty amount for a reconnection failure in respect of the period, 10 April 2012 to 6 May 2012, is affirmed.
The decision to calculate that amount as $944.41 is set aside and remitted to the Secretary for reconsideration in accordance with these reasons for decision.
............[sgd]............................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY—NewStart Allowance—Reconnection penalty—whether the applicant had a reasonable excuse for not complying with the requirements of an Employment Pathway Plan—decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) – ss 42E(2)(c); 42E(4); 42G; 42H; 42K;42L; 42T; 42UA
Social Security Act 1991 (Cth)) – ss 593(1)(f)
Social Security (Reasonable Excuse — Participation Payment Obligations) (DEEWR) Determination 2009 (No.1)
The Social Security (Administration) (Penalty Amount) (DEEWR) Determination 2012 (No. 1)
REASONS FOR DECISION
Senior Member A K Britton
27 June 2013
Boontiva Nilsson has been in receipt of NewStart allowance since 1998. She challenges a decision made by a Centrelink Authorised Review Officer (ARO) and affirmed by the Social Security Appeals Tribunal to impose a “reconnection penalty” in the sum of $944.41.
A person is qualified for NewStart allowance if, among other things, having been required to enter into a NewStart Employment Pathway Plan, they comply with the requirements of that plan (s 593(1)(f) of the Social Security Act 1991 (Cth)). In August 2011 Ms Nilsson entered into an Employment Pathway Plan (the Plan) and agreed to “fully participate in counselling with [employment service provider] MTC Work Solutions”. Under the Plan she was required to attend regular counselling interviews with MTC Work Solutions. She failed to attend a number of scheduled interviews.
Whether the decision to impose a reconnection penalty was the correct or preferable decision turns primarily on whether Ms Nilsson had a “reasonable excuse” for not attending the scheduled interviews with MTC Work Solutions on 14 March 2012 and 10 April 2012.
DID MS NILSSON HAVE A REASONABLE EXCUSE FOR FAILING TO ATTEND THE COUNSELLING INTERVIEW ON 14 MARCH 2012?
Ms Nilsson’s failure to attend the scheduled interview with MTC Work Solutions on 14 March 2012 constitutes a “connection failure” within the meaning of s 42E(2)(c) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Section 42E(4) instructs that I must not determine that Ms Nilsson committed a connection failure if satisfied that she had a reasonable excuse for not attending the interview, or, she satisfies paras (b),(c),(d) or (e) of s 42E(4).
As required by s 42E(4) of the Administration Act the Secretary has made a determination — Social Security (Reasonable Excuse — Participation Payment Obligations) (DEEWR) Determination 2009 (No.1) (Cth) (“the Determination”) — which lists the matters that must be taken into account in deciding a person has a reasonable excuse for committing a connection failure or reconnection failure. Those matters are:
5 Matters to be taken into account in determining if a person had a reasonable excuse
…
(2) The matters are:
(a)that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure; and
(b)the literacy and language skills of the person; and
Example for para (b)
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(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; and
(f)a drug or alcohol dependency of the person; and
(g)unforeseen family or caring responsibilities of the person; and
(h)that the person was subjected to criminal violence (including domestic violence and sexual assault); and
(i)that the person was adversely affected by the death of an immediate family member or close relative; and
(j)if
(i) the person has been imprisoned for a continuous period of more than 14 days; and
(ii) the person has been released; and
(iii) the person was released not more than 28 days before the failure was committed;
the person’s imprisonment or release from imprisonment.
(3) However, 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 1991 Act or the Administration Act, to which the failure relates.
Ms Nilsson gave as the reasons for not attending the interviews with MTC Work Solutions:
·Her belief that it is unreasonable that she be required to comply with the Plan given she is 59 years of age and entitled to retire
·Her opinion that it would be a human rights violation to deny her social security payments especially given that she owns her own home and has worked hard throughout her life
·Her claim that she continues to be adversely affected by the death of her son in 1998.
The first two reasons proffered by Ms Nilsson are in effect opinions about the appropriateness of Parliament’s decision to make participation in an Employment Pathway Plan one of the criteria for qualifying for receipt of NewStart allowance. They could not be said to constitute a “reasonable excuse”.
While I accept that the death of Ms Nilsson’s son 15 years ago continues to cause her significant pain, absent better evidence I could not be satisfied that it had a significant effect on Ms Nilsson’s capacity to attend the interview on 14 March 2012.
I raised with the parties whether s 5(2)(e) of the Determination might be relevant to deciding whether Ms Nilsson had a reasonable excuse for not attending the interview. That provision lists the person’s psychiatric or psychological impairment or mental illness as one of the matters a decision-maker must take into account in determining whether a person has a reasonable excuse. Ms Nilsson strongly maintained that she does not suffer from any relevant condition. While a possibility, on the available evidence I could not be satisfied that Ms Nilsson suffers from a relevant condition and, if so, whether it had a significant effect on her capacity to attend the interview.
If a person does not give prior notice that they will not be attending an interview they are required to attend under an employment pathway plan, the proffered excuse will not be reasonable unless the decision-maker is satisfied that it was not reasonable to expect the person to give such notice (s 42UA of the Administration Act). In my opinion it was reasonable to expect Ms Nilsson to give prior notice that she would not be attending the interview. It follows that the death of Ms Nilsson’s son cannot constitute a reasonable excuse.
Ms Nilsson did not have a reasonable excuse for failing to attend the interview on 14 March 2012. None of the matters listed in s 42E(4)(b),(c),(d),(da) or (e) apply in this case. I am satisfied that in failing to attend the interview Ms Nilsson committed a connection failure within the meaning of s 42E of the Administration Act.
DID MS NILSSON HAVE A REASONABLE EXCUSE FOR FAILING TO ATTEND THE COUNSELLING INTERVIEW ON 10 APRIL 2012?
Following her failure to attend the 14 March 2012 interview Ms Nilsson was advised verbally and in writing of the Secretary’s requirement to comply with a “reconnection requirement”, namely an interview with MTC Work Solutions on 10 April 2012 (s 42G of the Administration Act). In addition she was notified that if she failed to comply her NewStart allowance might be stopped and a penalty imposed.
Ms Nilsson failed to attend that appointment or give notice that she would not be attending. The excuse proffered for that failure was broadly the same as those given in respect of the 14 March 2012 interview. For the reasons given above I am not satisfied that they constitute a reasonable excuse or that it was reasonable that Ms Nilsson did not give notice of her non-attendance. It follows that Ms Nilsson committed a “reconnection failure” within the meaning of s 42H of the Administration Act.
SHOULD A RECONNECTION PENALTY BE IMPOSED?
Generally where a person commits a reconnection failure, a penalty amount will be deducted from their social security payment (s 42A of the Administration Act). The first step in calculating the penalty amount requires the identification of the “reconnection failure period”, that is, the period that begins on the day the person commits the failure and ends on the day before the day they comply with a further reconnection requirement, or, if the person satisfies the decision-maker that they have a reasonable excuse for the failure, the day before the person fails to comply (s 42H(4) of the Administration Act).
On 7 May 2012 Ms Nilsson provided Centrelink with a medical certificate prepared by her GP stating that she was unfit for work from 7 May to 7 August 2012 and unable to do any work for eight hours per week during that period. Apparently on the basis of that certificate the ARO determined that the reconnection failure period ended on 6 May 2012.
The medical certificate does not state that Ms Nilsson is unfit to attend monthly counselling interviews under the Plan, nor does it make clear whether the GP holds the opinion that Ms Nilsson is unfit to attend those interviews. In the absence of such an opinion Ms Nilsson may not have a reasonable excuse for not attending interviews scheduled under the Plan for the period covered by the certificate. However given this issue was not ventilated by either party I will proceed on the basis that as found by the ARO the reconnection penalty period ended on 6 May 2012. Accordingly the reconnection failure period commenced on the day Ms Nilsson committed a reconnection failure, 10 April 2012, and ended on 6 May 2012.
The Social Security (Administration) (Penalty Amount) (DEEWR) Determination 2012 (No. 1) (Cth) (the Penalty Amount Determination) sets out the method for calculating a reconnection penalty amount (see s 42T(1)). The ARO calculated Ms Nilsson’s penalty payment to be $944.41 and decided to deduct that amount from her future payments of NewStart allowance. I calculate a slightly different figure: $894.99. Having reviewed the calculations it appears that in calculating Ms Nilsson’s “penalty-affected rate”, the ARO may have used the general NewStart allowance of $497 per fortnight. However, under s 7(4) of the Penalty Amount Determination the starting point for the calculations should be the amount of NewStart allowance actually payable to Ms Nilsson for the instalment period, which, in this case, was different to the general rate.
The formula and the calculation I have used to estimate Ms Nilsson’s penalty amount are set out in Annexure A to these reasons. Neither party have had the opportunity to comment on whether they agree with this calculation. In these circumstances I have decided to remit the calculation of the penalty amount to the Secretary for reconsideration.
SUMMARY
Being satisfied that Ms Nilsson (i) committed a reconnection failure; (ii) was notified that such failure might result in a penalty amount being deducted from her NewStart allowance; I conclude that the decision to deduct a reconnection penalty by instalments from Ms Nilsson’s NewStart allowance is the correct and preferable decision. That part of the decision under review must be affirmed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton. ..........[sgd]..............................................................
Associate
Dated 27 June 2013
Date(s) of hearing 14 June 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch Annexure A: Calculations of Ms Nilsson’s penalty amount for a reconnection failure
Reconnection penalty amount
The Social Security (Administration) (Penalty Amount) (DEEWR) Determination 2012 (No. 1) (the Penalty Amount Determination) provides that a person’s penalty amount for a reconnection failure is the sum of the daily penalty rates for each weekday that falls in the reconnection failure period:
Penalty(RF) = DPR × WDRFperiod
Where:
Penalty (RF) means penalty amount for a reconnection failure.
DPR means daily penalty rate.
WDRFperiod means the number of weekdays that fall within the reconnection failure period.
The daily penalty rate for a day in a particular instalment period is the lesser of the amount worked out in accordance with the first method and the amount worked out in accordance with the second method:
First method
DPR = 1.4 × PAR / (Dayinst)
where:
PAR means the person’s penalty-affected rate for the instalment period in which the day occurs.
Dayinst is the number of days in that instalment period.
Second method
DPR = PAR / (WDinst)
where:
PAR means the person’s penalty-affected rate for the instalment period in which the day occurs.
WDinst is the number of weekdays in that instalment period.
A person’s penalty-affected rate for an instalment period is the amount worked out in accordance with the following formula:
PAR = PPAinst – (PAinst + PSinst + RAinst + RAAinst + YDSinst)
where:
PPAinst is the amount of participation payment payable to the person for the instalment period in which the day occurs, and includes any supplement or allowance that is part of the rate of that payment for that period.
PAinst is the amount of pharmaceutical allowance payable to the person for the instalment period.
PSinst is the amount of pension supplement payable to the person for the instalment period.
RAinst is the amount of rent assistance payable to the person for the instalment period.
RAAinst is the amount of remote area allowance payable to the person for the instalment period.
YDSinst is the amount of youth disability supplement payable to the person for the instalment period.
Applying the above to Ms Nilsson:
Ms Nilsson was paid NewStart allowance of $991.80 for the period 6 April 2012 to 3 May 2012, and $47.39 for the period 4 May 2013 to 31 May 2012. Accordingly, two separate daily penalty rates must be calculated for each payment period.
DPR for period 6 April 2012 to 3 May 2012:
PAR = PPAinst – (PAinst + PSinst + RAinst + RAAinst + YDSinst)
PAR = $991.80 – (0 + 0 + 0 + 0 + 0)
PAR = $991.80
First method
DPR = 1.4 × PAR / (Dayinst)
DPR = 1.4 × $991.80 / 28
DPR = $49.59
Second method
DPR = PAR / (WDinst)
DPR = $991.80 / 20
DPR = $49.59
DPR for period 4 May 2013 to 31 May 2012:
PAR = PPAinst – (PAinst + PSinst + RAinst + RAAinst + YDSinst)
PAR = $47.39 – (0 + 0 + 0 + 0 + 0)
PAR = $47.39
First method
DPR = 1.4 × PAR / (Dayinst)
DPR = 1.4 × $47.39 / 28
DPR = $2.37
Second method
DPR = PAR / (WDinst)
DPR = $47.39 / 20
DPR = $2.37
Therefore, Ms Nilsson’s daily penalty rate for the period 10 April to 3 May 2012 is $49.59, and her daily penalty rate for the period 4 May to 6 May 2012 is $2.37.
Penalty amount for a reconnection failure for the period 10 April 2012 to 6 May 2012:
WDRFperiod (10 April 2012 to 3 May 2012) = 18 weekdays
WDRFperiod (4 May 2012 to 6 May 2012) = 1 weekday
Penalty (RF) = DPR × WDRFperiod
Penalty (RF) (10 April 2012 to 3 May 2012) = (DPR × WDRFperiod)
Penalty (RF) (10 April 2012 to 3 May 2012) = ($49.59 × 18 days)
Penalty (RF) (10 April 2012 to 3 May 2012) = $892.62
Penalty (RF) (4 May 2012 to 6 May 2012) = (DPR × WDRFperiod)
Penalty (RF) (4 May 2012 to 6 May 2012) = ($2.37 × 1 day)
Penalty (RF) (4 May 2012 to 6 May 2012) = $2.37
Penalty (RF) (total) = Penalty (RF) (10 April 2012 to 3 May 2012) + Penalty (RF) (4 May 2012 to 6 May 2012)
Penalty (RF) (total) = $892.62 + $2.37
Penalty (RF) (total) = $892.99
Applying the above the penalty amount for the 10 April 2012 and ended on 6 May 2012 is $894.99.
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