BRAD LLOYD and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 724

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 724

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3501

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRAD LLOYD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr T M Schafer, Member

Date22 September 2009

PlaceSydney

Decision The decision under review is affirmed.

...................[Sgd]........................

Dr T M Schafer
  Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – participation failure – whether Applicant committed participation failure – whether reasonable excuse exists – whether Applicant subject to eight week non payment period – the decision under review is affirmed.

Social Security Act 1991 – ss 605, 606, 624, 629

Social Security (Administration) Act 1999 – s 63

Social Security Legislation Amendment (Employment Services Reform) Act 2009

Social Security (Reasonable Excuse) (DEWR) Determination 2006

REASONS FOR DECISION

22 September 2009 Dr T M Schafer, Member   

INTRODUCTION

1.      Mr Brad Lloyd has been in receipt of newstart allowance intermittently since December 1993.

2.      Centrelink, on behalf of the Secretary, Department of Education, Employment and Workplace Relations (Secretary) decided that Mr Lloyd committed participation failures on 21 September 2007, 10 January 2008 and 16 April 2008. Consequently, on 2 May 2008, Centrelink decided to impose an eight week non-payment period on Mr Lloyd effective from 9 May 2008 to 3 July 2008.

3.      On 1 May 2008 and 7 May 2008 Mr Lloyd sought review of Centrelink's decision by a Centrelink Authorised Review Officer (ARO). On 2 May 2008 and 22 May 2008 the ARO notified him that those appeals were unsuccessful. On 22 May 2008 Mr Lloyd sought review of those decisions by the Social Security Appeals Tribunal (SSAT). On 30 June 2008 the SSAT affirmed the decisions of the ARO dated 2 May 2008 and 22 May 2008. He applied for review in this Tribunal on 31 July 2008.

ISSUE

4.      Mr Lloyd did not dispute that he committed newstart participation failures on 21 September 2007 and 16 April 2008.

5.      Accordingly, the only issues before the Tribunal are:

(a)whether Mr Lloyd committed a participation failure on 10 January 2008 and, if so, whether he had a reasonable excuse for that failure; or

(b)if Mr Lloyd committed a participation failure on 10 January 2008, whether he ought to be subject to an eight week non-payment period of his newstart allowance because he had committed three participation failures in a 12 month period.

LEGISLATION

6.      On 1 July 2009, the Social Security Legislation Amendment (Employment Services Reform) Act 2009 (No 7 of 2009) commenced operation. It amended the Social Security Act 1991 (the Act) by introducing a new employment service regime for recipients of newstart allowance called the “Employment Pathway Plan”. However, because the issues to be determined by the Tribunal relate to participation failures which occurred prior to 1 July 2009, this application is to be determined according to the provisions of the Act as in force at the date of the relevant participation failure on 10 January 2008.

7.      Accordingly, any references to the Act are taken to mean the Act that was in force on 10 January 2008.

8.      Section 605(1) of the Act permits the Secretary to require a person to enter into a Newstart Activity Agreement (Activity Agreement) if the person is receiving newstart allowance.

9.      Pursuant to section 606 of the Act, a person must comply with the terms of their Activity Agreement subject to other sections of the Act.

10.     Section 624 of the Act sets out the circumstances in which a person commits a newstart participation failure:

(1)  A person commits a newstart participation failure if the person:

(a)  fails to comply with a requirement:

(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii)  that was reasonable; and

(iii)  the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or

(b)  fails to satisfy the activity test; or

…

(d)  fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or

…

(2) Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

11. Subsection 63(2) of the Social Security (Administration) Act 1999 (the Administration Act) sets out notification requirements, relevantly:

Requirement to attend Department etc.

(1)  This section applies to a person if:

(a)  the person is receiving, or has made a claim for, a social security payment;

…

(2)  If the Secretary is of the opinion that a person to whom this section applies should:

…

(c)  attend a particular place for a particular purpose; or

…

the Secretary may notify the person that he or she is required, within a specified time, to:

…

(g)  attend that place for that purpose; or

(h)  give that information;

as the case may be.

12.     The Social Security (Reasonable Excuse) (DEWR) Determination 2006 (Reasonable Excuse Determination) sets out matters that must be taken into account in deciding whether, for the purposes of section 624(2) of the Act, a person has a reasonable excuse for committing a participation failure. Clause 4(2)(c) and 4(2)(g) of the Reasonable Excuse Determination provides lists the following as reasonable excuses for not attending an interview:

(c) any illness, impairment or condition of the person that requires frequent treatment, including any illness that is episodic or unpredictable in nature; and

…

(g) any unforseen family or caring responsibilities of the person.

13.     Section 629 of the Act provides that newstart allowance is not payable for 8 weeks if a person commits 2 or more failures in a 12 month period:

Allowance not payable because of repeated or more serious failure

(1)  A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

(a)  commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or

…

CONSIDERATION

14. I have taken into account the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975. I have also considered Mr Lloyd’s oral evidence.

Did Mr Lloyd commit a participation failure on 10 January 2008?

15.     On 17 December 2007, Mr Lloyd attended an interview with a Job Network Member, at Jobfind Centres Australia Pty Ltd (Jobfind) at Merrylands. Mr Lloyd signed an Activity Agreement on the same date. The Activity Agreement included the following term under the heading “Compulsory Activities”:

The activities in Part A are those that I must do in order to receive my Centrelink payment.

…

● Attend interviews with Jobfind Merrylands to review job seeker progress and/or Activity Agreement on 10/01/2008 ; 07/02/2008 ; 06/03/2008, and I will contact Jobfind at least 48 hours before the interview if I am unable to attend.

16.     Mr Lloyd’s handwritten initials appear on the form next to this term.

17.     The Activity Agreement advised Mr Lloyd that if he failed to meet its requirements, a “participation failure” may be recorded against him and his payment may be stopped. It also stated that in the case of repeated or more serious failure, his payment may be stopped for eight weeks.

18.     On 11 January 2008, Jobfind completed a participation report. The participation report noted that Mr Lloyd failed to attend a scheduled appointment on 10 January 2008. It stated that Mr Lloyd was notified of the appointment in a compliance letter on 17 December 2007. Jobfind attempted to contact Mr Lloyd by telephone on 11 January 2008. A file note reads:

Tried calling JS twice on 11/01 no answer JS [job seeker] failed to call to advise he is unable to attend provider appt – JS was given letter on 17/12/07 for appt on 10/01 – JS always fails to attend JF office – PR lodged as JS not complying.

19. Mr Lloyd has conceded that he failed to attend the interview. The Tribunal is satisfied that, pursuant to section 63(2) of the Administration Act, Mr Lloyd was notified of the appointment by Jobfind and in writing on 17 December 2007 and that this notice was reasonable. Accordingly, the Tribunal finds that Mr Lloyd committed a participation failure on 10 January 2008.

Did Mr Lloyd have a reasonable excuse for the participation failure?

20.     The Tribunal understands that Mr Lloyd seeks to rely on clause 4(2)(c) and 4(2)(g) of the Reasonable Excuse Determination as reasonable excuses for not attending the interview.

21.     In the course of the review of Centrelink's decision, Mr Lloyd has advanced two different excuses to Centrelink, the SSAT and before this Tribunal.

22.     On 15 January 2008, Mr Lloyd told a Centrelink officer that he was unwell at the time of the interview and anxious about his medical problem. He said that he attended a medical specialist for x-rays the day prior to the appointment. The officer requested medical certificates from Mr Lloyd, which Mr Lloyd did not supply.

23.     Before the SSAT, Mr Lloyd said that he was not able to attend the interview because his partner was not well and he had to look after their son.

24.     In evidence before this Tribunal by telephone, Mr Lloyd said that he was unable to attend the interview because his partner was unwell and he needed to look after his children.  Mr Lloyd first claimed that the reason his partner was unwell was that she had given birth by caesarean section 10 months earlier and was still recovering from that operation.  However, when pressed on the reasons for his partner's slow recovery, Mr Lloyd became aggressive and was not able to provide any cogent or consistent evidence which verified that his partner required constant care.  During the hearing, the reasons Mr Lloyd advanced for not being able to attend the interview included his partner's physical incapacity caused by her caesarean section; his partner's depression caused by a series of incidents involving family members; and his son's Attention Deficit Disorder.

25.     Nevertheless, at the conclusion of the hearing, the Tribunal made directions which offered Mr Lloyd the opportunity to obtain a medical certificate or other objective medical evidence from his partner's treating doctor(s) which verified that his partner was not well enough to care for her children at the relevant time.  However, Mr Lloyd later advised the Tribunal that he did not have any additional medical evidence to file and was content for the Tribunal to make a decision on the material before it. Accordingly, in the absence of any objective and contemporaneous evidence verifying Mr Lloyd's claims, the Tribunal is unable to accept Mr Lloyd's evidence as to why he did not attend the interview on 10 January 2008.  The Tribunal finds, therefore, that Mr Lloyd did not have a reasonable excuse for failing to attend the interview.

26.     Accordingly, given that Mr Lloyd failed to comply with a term of his Activity Agreement by not attending the interview on 10 January 2008, and Mr Lloyd was not able to provide a reasonable excuse for failing to attend that interview, the Tribunal finds, pursuant to sections 624(1)(d) and 624(2) of the Act, that Mr Lloyd committed a newstart participation failure on 10 January 2008.

Should a non-payment period of eight weeks be imposed?

27.     Mr Lloyd did not dispute that he committed newstart participation failures on 16 April 2008 and 21 September 2008, when he failed to attend arranged interviews on those dates.

28.     The Tribunal has additionally found that Mr Lloyd committed a newstart participation failure on 10 January 2008.  Accordingly, Mr Lloyd committed two or more participation failures within a 12 month period and was properly subject to an eight week non-payment period of his newstart allowance pursuant to section 629(1) of the Act.

29.     The Tribunal understands that Mr Lloyd has already served two weeks of the eight week non-payment period.  On 18 August 2008, a partial stay of the reviewable decision was granted by the Tribunal, so that Mr Lloyd's newstart allowance payments were reinstated from 15 August 2008. Accordingly, only a six week non-payment period remains.

DECISION

30.     For the reasons stated above, the decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr T M Schafer, Member.

Signed: ........[Sgd]..................
              Associate

Date of hearing:  26 June 2009 
Date of decision:  22 September 2009
Representative for the Applicant:              Self-represented       

Representative for the Respondent:         Centrelink Legal Services and Procurement