Budalich and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1258
•24 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1258
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600287
GENERAL ADMINISTRATIVE DIVISION ) Re MARKO BUDALICH Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date24 April 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
SOCIAL SECURITY – newstart allowance – activity test – payment of applicant’s newstart allowance suspended – applicant given written notice by Centrelink requiring documentation demonstrating job-seeking activities in specified period – applicant provided written statements but failed to provide documentation as required by notice – applicant required to satisfy activity test – applicant has not demonstrated that he was actively seeking paid work in specified period – applicant has not satisfied activity test in specified period – applicant not qualified for newstart allowance in specified period – decision under review affirmed
Social Security Act 1991 (Cth), s 593(1), s 601 and s 603(1A)
Social Security (Administration) Act 1999 (Cth), s 192 and s 196
REASONS FOR DECISION
24 April 2007 Deputy President S D Hotop Introduction
1. Marko Budalich (“the applicant”) was in receipt of newstart allowance (“NSA”), pursuant to the Social Security Act 1991 (Cth) (“the Act”), but his NSA was suspended, with effect from 30 March 2005, because he did not enter into a “Newstart Activity Agreement”. That decision was, however, set aside on 28 July 2005 by an Authorised Review Officer (“ARO”) within Centrelink who instead decided that, provided that the applicant satisfies Centrelink that from 30 March 2005 onwards he has “satisfied the qualification and payability requirements in the Social Security Law for payment of Newstart Allowance”, his Newstart Allowance “is to resume from 30 March 2005”.
2. Although the applicant subsequently met with Centrelink officers and provided certain information to Centrelink, he did not satisfy Centrelink that he was qualified for NSA from 30 March 2005.
3. On 6 December 2005 the applicant lodged a claim for NSA. That claim was granted and NSA was paid to the applicant from 7 December 2005.
4. On 26 April 2006 an officer of Centrelink decided that NSA was not payable to the applicant for the period from 30 March 2005 to 6 December 2005 because he “did not satisfy the qualification and payability requirements in Social Security Law for payment of Newstart Allowance”. That decision was affirmed by an ARO on 25 May 2006 and the ARO’s decision was in turn affirmed by the Social Security Appeals Tribunal (“SSAT”) on 10 August 2006.
5. The applicant has applied to this Tribunal for review of the decision of the SSAT.
The Issue and the Tribunal’s Determination
6. The issue for the Tribunal’s determination is whether, for the period from 30 March 2005 to 6 December 2005 (“the relevant period”), the applicant was qualified for NSA.
7. For the reasons which follow, the Tribunal has determined that the applicant did not satisfy the qualification criteria prescribed by the Act for NSA during the relevant period and that, accordingly, NSA was not payable to him during that period.
The Legislation
8. Section 593(1) of the Act, which prescribes the basic criteria for qualification for NSA, relevantly provides:
“593(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a)the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
(ii) … ; and
…
(b)in the case of a person to whom subparagraph (a)(i) applies – throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test; and
(c)if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and
(d)if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and
(e)if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and
(f)while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
…”
9.Section 601 of the Act, which deals with the “activity test”, relevantly provides:
“601(1) Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a)actively seeking; and
(b)willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
…
601(1A) The Secretary may notify a person (other than a person who is not required to satisfy the activity test) who is receiving a newstart allowance that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period specified in the notice.
601(1B) If a person refuses or fails to comply with a notice issued under subsection (1A), the person fails to satisfy the activity test in respect of the period specified in the notice.
601(1C) The person must give the Secretary a written statement from each employer whose job vacancy the person applied for that confirms that the person applied for that job vacancy.
601(1D) The statement from the employer must be in a form approved by the Secretary.
601(1E) Subsection (1C) does not apply to a person if the Secretary is satisfied that there are special circumstances in which it is not reasonable to expect the person to give the statement referred to in that subsection.
601(1F) If a person contravenes subsection (1C), the person fails to satisfy the activity test.
…”
10. Sections 602-603AA of the Act provide for “relief from the activity test” in specified circumstances. Section 603(1A) (as in force at the relevant time but since repealed) provided:
“603(1A) If a person:
(a)is at least 50 years of age; and
(b)either:
(i) has not been required to enter into a Newstart Activity Agreement; or
(ii) having been required to enter into a Newstart Activity Agreement, is not, to the satisfaction of the Secretary, unreasonably delaying entering into that agreement;
the person is taken to have satisfied the activity test during the period starting when the person claimed, or is to be taken to have claimed, a newstart allowance and ending:
(c)if the person has been required to enter into a Newstart Activity Agreement but has failed, or is taken to have failed, to enter that agreement – when the person so failed or is taken to have so failed; or
(d)in any other case – when the person has entered into such an agreement.”
11. The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) relevantly provides:
“192 The Secretary may require a person to give information, or produce a document that is in the person’s custody or under the person’s control, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following:
(a)the question whether a person who has made a claim for a social security payment is or was qualified for the payment;
(b)the question whether a social security payment is payable to a person who is receiving the payment;
(c)the question whether a social security payment was payable to a person who has received the payment;
...”
“196(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
196(2) The notice:
(a)may be given personally or by post or in any other manner approved by the Secretary; and
(b)must specify:
(i) how the person is to give the information or produce the document to which the requirement relates; and
(ii) the period within which the person is to give the information or produce the document to the Department; and
(iii) the officer (if any) to whom the information is to be given or the document is to be produced; and
(iv) that the notice is given under this section.
196(3) The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the notice is given.
...”
The Evidence
12.The evidence before the Tribunal comprised:
· the “T Documents” lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· various documents tendered in evidence by the applicant (Exhibits A1 and A2) and by the respondent (Exhibits R1-R10); and
· the oral evidence of the applicant, and of Bernard Jenkinson and Paul Carroll who were called as witnesses by the respondent.
The Factual Background
13.The following relevant factual background appears from the T Documents.
14. Following the ARO’s decision of 28 July 2005 (referred to in paragraph 1 above), a Centrelink officer wrote to the applicant on 12 August 2005 as follows:
“I am writing to you, having received notification from the Authorised Review Officer (ARO), about the results of their investigation of your appeal. The ARO has stated that your payments can be restored providing you satisfy Centrelink that from the 30 March 2005 onwards you have satisfied the qualification and payability requirements in the Social Security Law for payment of Newstart Allowance.
There are several parts that will need to be addressed in order to fully investigate and confirm your entitlement to payment for the designated period.
These include signing the initial Preparing for Work Agreement that was previously given to you. I have included a copy of this for you to acquaint yourself with.
You will need to demonstrate the active steps you have taken, including attending Job Network Members, employer contacts, including copies of job applications.
You will need to provide proof of how you have supported yourself during this period. This proof will include, where funds to cover utility accounts and incidentals came from, bank account statements and advice on any work related income you may have received. If you have received loans, we will require the details of amounts and lender names/contracts.
As the initial Preparing for Work Agreement period has passed, a new Agreement is required. A copy will be provided to you once we are able to restore your benefit. Time will be provided to allow you to read through, and sign accordingly.
To facilitate this process I have arranged an interview with a third party to allow a fresh approach to be taken by all parties. The interview will be with Bernard Jenkinson and Paul Carroll on Friday, August 19 2005 at 3:00pm at Centrelink Midland.
…” (original emphasis) (T19)
15. The abovementioned interview was in fact conducted on 22 August 2005. Handwritten notes of that interview (T23, pp 104-111) record that the applicant:
· signed a “Preparing for Work Agreement”, relating to the period from 30 March 2005 to date, during the interview;
· was requested to provide documentation demonstrating that he had made 4 “job efforts” per fortnight since 30 March 2005, together with bank statements from 30 March 2005 onwards;
· was informed that his payments would be restored when all the requested material was provided by him.
16. In the abovementioned “Preparing for Work Agreement”, dated 22 August 2005, the applicant agreed that, inter alia, he would, from 30 March 2005, “make 4 job search contacts per fortnight and record those job search contacts on [his] application for payment forms”. (T18)
17. Following the interview of 22 August 2005 a Centrelink officer wrote to the applicant on 26 August 2005 as follows:
“Pursuant to our meeting on Monday 22nd August 2005, you are required to provide the following documentation for the period 30th March 2005 to 26th August 2005.
1. You need to demonstrate the active steps you have taken in seeking work including attending Job Network Members, employer contacts including copies of job applications or phone records, this can include your phone account. Other details regarding employers contacted in person.
2. You need to provide proof of how you have supported yourself during the period 30th March 2005 to 26th August 2005. This proof to include where funds to cover utility accounts and incidentals came from. Bank account(s) statements and advice on any work related income you may have received. If you have received loans, we will require details of amounts and lender(s)/names/contracts.
This information is required by the 12th September 2005 close of business.
This notice is issued under Section 196 of the Social Security (Administration) Act 1999. If you do not provide the requested information within the allowable time frame, no further action will be taken to reassess your entitlement to Newstart Allowance for the period review. (sic)
…” (T25)
18. On 12 September 2005 the applicant requested Centrelink to review the “letters dated 12/8/2005 and 26/8/2005” (namely, the letters set out in paragraphs 14 and 17 above). (Exhibit R2)
19.On 6 December 2005 the applicant visited a Centrelink office and:
· claimed NSA;
· signed a “Preparing for Work Agreement” covering the period from 6 December 2005 to 14 February 2006;
· made a written statement to the effect that:
-he had not worked since March 2005, other than some part-time work in November 2005 in which he earned $150.00;
-he had “looked for work” during that period. (T29, T30)
20. On 9 March 2006 the applicant visited a Centrelink office and made a written statement in which he:
· confirmed that between March and December 2005 he was “unemployed and looking for work”;
· stated that he had “survived during this time by the small amount of saving [he] had saved, and the help of his brother”. (T39)
21. On 3 April 2006 the applicant provided to Centrelink bank account statements covering the period 1 July 2004 - 31 January 2006. (Exhibit R4)
22.On 26 April 2006 a Centrelink officer wrote to the applicant as follows:
“I refer to your request for a review of decision and your subsequent visit to our office on 9th March 2006.
Thank you for providing your bank statements for the period 1 July 2004 and 1 June 2005 and the period 1 June 2005 and 1 November 2005. These statements were requested to provide us with more information on how you have been supporting yourself in these periods.
The other information that we were requesting from you was evidence of work efforts for the period 30th March 2005 until 6th December 2005. You discussed your job search efforts during the course of the conversation with myself and … the Authorised Review Officer on the 9th March. We further requested that you provide evidence, such as telephone logs or job applications of these job search efforts. This information still hasn’t been forthcoming and because of this we are affirming the decision that you did not satisfy the qualification and payability requirements in Social Security Law for payment of Newstart Allowance.
This means that the assessment not to pay you Newstart Allowance for the period March 30th 2005 - 6th December 2005 stands.
…” (T42)
23.On 5 May 2006 the Centrelink officer wrote to the applicant as follows:
“I am the person who made the decision of 26 April 2006 not to pay you Newstart Allowance.
You asked for that decision to be reconsidered. You said it was wrong because you should be paid arrears from 30th March 2005 - 6th December 2005.
After carefully considering what you said I have concluded the decision was correct and should not be changed.
I have reached this conclusion because you did not provide any evidence of work efforts for the period 30th March to the 6th December 2005 as requested during your visit to Midland office on the 9th March 2006. This is in accordance with the Authorised Review Officer’s decision made on the 28th July 2005 that ‘providing you satisfy Centrelink that from 30 March 2005 onwards you have satisfied the qualification and payability requirements in the Social Security Law for payment of Newstart Allowance, your Newstart Allowance is to resume from 30 March 2005.’
As requested, I have forwarded the decision to be reviewed by an Authorised Review Officer (ARO). You will hear from the ARO shortly.
The ARO is an experienced officer who would not have previously been involved in your case…” (T46)
24. On 25 May 2006 an ARO (other than the ARO referred to in the letter set out in paragraph 22 above and the ARO who made the decision of 28 July 2005) affirmed the abovementioned decision, noting that (inter alia):
“To date [the applicant had] not provided any documentation that demonstrated [that he] satisfied the activity test and hence qualified for Newstart Allowance for the period 30/3/2005 to 29/11/05.” (T47)
The Applicant’s Case
25.
The applicant said that, in the relevant period from 30 March 2005 to
6 December 2005, he had made numerous job applications but that none of them had been successful. He added that, on average, he would only be granted one interview per 40 job applications he made. He reiterated the contents of the written statements made by him to Centrelink on 6 December 2005 and 9 March 2006 (referred to in paragraphs 19 and 20 above).
26. As regards the job applications which he said that he had made in the relevant period, he said that he had not kept any records and was unable to give details of them.
27. The applicant made the following submissions:
· Centrelink should have implemented the ARO’s decision of 28 July 2005 and restored his NSA, at least with effect from 22 August 2005 – the date of his meeting with Centrelink officers (see paragraph 15 above) – from which date he would have been able to provide details of his job-seeking efforts in satisfaction of the “activity test”;
· the information which he was required by Centrelink to provide, as detailed in its letters of 12 August 2005 and 26 August 2005 (see paragraphs 14 and 17 above), was “excessive”;
· information provided by him to Centrelink in the form of statutory declarations should suffice for the purpose of satisfying the “activity test”;
· in any event, he should be taken to have satisfied the “activity test” during the relevant period, pursuant to s 603(1A) of the Act, because he was not “unreasonably delaying entering into” a Newstart Activity Agreement, within the meaning of s 603(1A)(b)(ii), during that period.
Consideration
28.Each of the applicant’s submissions may be answered briefly.
29. The ARO’s decision of 28 July 2005 that the decision to suspend the applicant’s NSA be set aside was expressed to be subject to the condition that the applicant first “satisfy Centrelink that from 30 March 2005 onwards [he has] satisfied the qualification and payability requirements in the Social Security Law for payment of Newstart Allowance”. At the meeting between the applicant and Centrelink officers on 22 August 2005, the applicant was orally notified of the documentary information which he was required to provide in order to satisfy the condition expressed in the ARO’s decision of 28 July 2005, and he was formally so notified by way of a written notice issued under s 196 of the Administration Act on 26 August 2005. No such information – whether retrospective information for the period from 30 March 2005 onwards, or prospective information for the period from 22 August 2005 onwards – was provided to Centrelink by the applicant during the remainder of the relevant period, and, accordingly, the precondition of the implementation of the ARO’s decision was not fulfilled during that period. There was, therefore, no basis for the implementation of the ARO’s decision of 28 July 2005 during the relevant period.
30. The Tribunal is satisfied that the documentary information which the applicant was required by Centrelink to provide, pursuant to the notice issued under s 196 of the Administration Act on 26 August 2005, was relevant to the question whether the applicant was qualified for NSA for the relevant period because it was relevant to 2 of the qualification criteria for NSA prescribed by s 593(1) of the Act, namely, whether the applicant was unemployed, and whether he satisfied the “activity test”, in that period. Accordingly, Centrelink was authorised, pursuant to s 192 of the Administration Act, to require him to provide that information. The Tribunal is also satisfied that the abovementioned notice requiring the applicant to provide that information sufficiently complied with s 196 of the Administration Act and was valid.
31. As regards the nature of, and the form in which, relevant information may be required to be provided to Centrelink, pursuant to s 192 of the Administration Act Centrelink is authorised to require a person to “give information” or “produce a document” that may be relevant to any of the questions referred to in that section. Pursuant to s 192, it is for Centrelink to specify the nature of the information to be given or the document to be produced, and s 196(2) provides that the notice requiring the giving of the information or the production of the document must specify how that information is to be given or that document is to be produced. If Centrelink issues a valid notice pursuant to s 196 specifying the relevant information or documentation which is to be provided, and the manner in which it is to be provided, a failure by the person concerned to provide that information or documentation in the manner specified will constitute a non-compliance with that notice. In the present case, the provision of relevant information by the applicant in the form of the written statements made by him on 6 December 2005 and 9 March 2006 (referred to in paragraphs 19 and 20 above) did not comply with the notice issued by Centrelink pursuant to s 196 of the Administration Act on 26 August 2005. Likewise, had the applicant provided the same information in the form of statutory declarations, he would not thereby have complied with the notice.
32. The short answer to the applicant’s purported reliance on s 603(1A) of the Act for relief from the “activity test” is that that subsection only applied to a person aged 50 years or more (see para (a)), whereas the applicant is presently 45 years of age (having been born on 16 July 1961 – see T1, p 1; Exhibit R2, p 1).
Conclusion
33.
As mentioned above, the applicant failed to provide documentation recording details of his job-seeking activities during the relevant period to Centrelink, as required by the notice issued pursuant to s 196 of the Act on 26 August 2005. Nor did he provide such documentation to the SSAT or to this Tribunal. The only relevant information which he has provided is that contained in his written statements of
6 December 2005 and 9 March 2006 (referred to in paragraphs 19 and 20 above) and in his oral evidence (referred to in paragraph 25 above). That information, however, is insufficient to satisfy the Tribunal that the applicant was “actively seeking… paid work” during the relevant period, as required in order to satisfy the “activity test” in accordance with s 601(1) of the Act.
34. The applicant has not satisfied the Tribunal that, during any part of the relevant period, he satisfied the “activity test” or was not required to satisfy the “activity test”. It follows that, throughout the relevant period, he was not qualified for NSA in accordance with s 593(1) of the Act, and the Tribunal so finds.
Decision
35.For the above reasons, the Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...................[Sgd Y Maker]......................
AssociateDate of Hearing 4 April 2007
Date of Decision 24 April 2007
Representative of the Applicant Mr G BudalichRepresentative of the Respondent Ms M Conlon
Legal Services Officer
Centrelink
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