Bunney; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1385

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1385

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° V 200601227

GENERAL ADMINISTRATIVE  DIVISION

)

Re

SECRETARY,

DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Applicant

And MATTHEW BUNNEY

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date30 May 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes its decision that, as Mr Bunney had no reasonable excuse for failing to attend his appointment with YES on 7 June 2006, an administrative breach rate reduction of 16 per cent applies to Mr Bunney’s Newstart Allowance from 27 June 2006 to 21 August 2006.

(sgd) C. Ermert

Member

SOCIAL SECURITY – Newstart Allowance – non-attendance at appointment – whether requirement to attend was reasonable – whether excuse for non-attendance was reasonable – availability of transport – whether applicant had medical procedure on his feet

Social Security (Administration) Act 1999

Re Secretary, Department of Family and Community Services and Williams (2003) 73 ALD 560

REASONS FOR DECISION

30 May 2007  Mr C. Ermert, Member

INTRODUCTION

1.        Mr Matthew Bunney, the respondent in this matter, has been receiving Newstart Allowance (NSA) since July 2000.  He has been living in the Warrnambool district since August 2004, and at the time relevant to this matter he resided at 19 Hoddle Street, Warrnambool.  On 6 June 2006 Mr Bunney was informed by an officer of Centrelink that an appointment had been made for him with Your Employment Solutions (YES), Mr Bunney’s Job Network Member.  Centrelink acts as the service delivery agency for the Department of Employment and Workplace Relations (the Department).  The appointment was for 9.00am on 7 June 2006.

2.        Mr Bunney did not attend the appointment with YES.  His reasons for not attending were that he was having problems with his feet and that there was no bus service available that would get him to the appointment on time.

3.        On 13 June 2006 Centrelink advised Mr Bunney that, as a result of his non-attendance, an administrative breach rate reduction would be applied to his NSA.  On 22 September 2006 a Centrelink Authorised Review Officer (ARO) affirmed the decision to apply the breach rate reduction.  Mr Bunney sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 20 November 2006 the SSAT decided to set aside the decision under review and substituted its decision that, as Mr Bunney had a reasonable excuse for failing to attend the appointment on 7 June 2006, an administrative breach rate reduction period did not apply to his NSA.  This is an application by the Secretary to the Department to review the decision of the SSAT.

THE HEARING

4.        Mr Tim Noonan of the Centrelink Legal Services Branch represented the applicant at the hearing.  Mr Bunney represented himself and participated in the hearing via his mobile telephone. The quality of the link was poor, which made it difficult at times for all parties to understand the evidence being presented.  I heard evidence via telephone from Mr David Keys and Ms Danielle Stephenson, officers with Centrelink, Mr Samuel Lucas, Human Resources Manager of Warrnambool Bus Lines, Dr Andrew Chow of Cambourne Medical Clinic, Mr Terrence Cronin, the Practice Manager of the Warrnambool Medical Clinic, and Mr Benjamin Spurr, the Health Information Manager of South West Health Care.

5.        Subsequent to the hearing the applicant lodged a statement by Mr Andrew Blair, an officer of Centrelink, dated 11 April 2007.  The Tribunal forwarded a copy of the statement to Mr Bunney.  He advised the Tribunal that he did not wish to respond to the statement.

THE ISSUES

6.        The principal facts of the case are not in dispute.  On 6 June 2006 Centrelink advised Mr Bunney of an appointment with YES for 9.00am on 7 June 2006.  Mr Bunney failed to attend that appointment.  An administrative breach rate reduction of 16 per cent was applied to Mr Bunney’s NSA between 27 June 2006 and 21 August 2006.

7. Section 63 of the Social Security (Administration) Act 1999 (the Act) relevantly provides:

(1)This section applies to a person if:

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

…

(3)       If the Secretary is of the opinion that a person to whom this subsection 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;

…

as the case may be.

(3A)Subsection (3) applies to a person:

(a)who is receiving … newstart allowance; or

….

(5)If:

(a)the Secretary notifies a person under subsection (3) of a requirement; and

(b)the requirement is reasonable; and

(c)the person does not comply with the requirement;

then:

…

(e)an administrative breach rate reduction period applies to the person if:

(i)        the person meets the conditions in subsection (5A) at the time of the non-compliance and newstart allowance later becomes payable to the person;

…

(5A)The conditions are that the person:

(a)is receiving newstart allowance; and

(b)is not subject to a requirement by the Secretary to participate in the PSP; and

(c)       is not a party to a Newstart Activity Agreement under which the person is required to participate in the PSP.

8. The parties agree that Mr Bunney was receiving a social security payment at the relevant time. There is no dispute that the Secretary notified Mr Bunney that he was required to attend YES for a meeting with his job network provider, in accordance with the provisions of section 63(3) of the Act. Section 63(5)(b) of the Act provides that the requirement to attend this meeting must be reasonable.  This is the first issue to be determined in this case.

9. Section 63(5)(e) provides for the application of an administrative breach rate reduction for non-compliance with the requirement. However, section 63(9) allows the Secretary to determine that the administrative breach rate reduction does not apply if the person had a reasonable excuse for not complying with the requirement.  The second issue to be determined in this case is whether Mr Bunney’s reasons for not attending the meeting with YES were reasonable.

Was the Secretary’s requirement for Mr Bunney to attend YES on 7 June 2006 reasonable?

10.      Mr Bunney made no submissions on this particular issue.  However, from his evidence it is reasonably clear that, at the time he was told of the requirement to attend the appointment with YES, he did not think it was reasonable.  Mr Bunney gave evidence that he advised the Centrelink officer that he had problems with his feet, he was limping, and that buses did not run past his house at that time of the morning.  He said that the 8.30am bus service that ran near his residence was for school children only.  He added that the Centrelink officer was not very understanding of his circumstances.

11.      The applicant referred to the evidence given by Mr Lucas of the Warrnambool Bus Lines.  Mr Lucas said that the 8.30am bus service had a stop approximately 150 metres from Mr Bunney’s residence, and that the bus was available to all passengers and not restricted to school children.  The applicant also referred to Mr Bunney’s own evidence that the YES offices are situated about a ten-minute walk from the city bus station.

12.      The applicant further submitted that the use of the telephone to notify persons of the requirement to attend an appointment was normal practice where the appointment was within 48 hours.  The applicant’s Statement of Facts and Contentions states that there is no legislative or policy requirement for a minimum period between the issue of a notification and the date of compliance with the notification, and that the notice given was in accordance with the government’s RapidConnect policy - that is the government’s commitment to assisting job seekers to access employment services so that they can re-enter the workforce as soon as possible.

13.      In considering the evidence I find the period of notice to be reasonable.  Mr Bunney raised no objection at the time to an appointment the next day on the grounds that he had other commitments.  The use of the telephone to provide the notification is also reasonable.  The mobile telephone appears to be a normal means of communicating with Mr Bunney.

14.      In relation to the issue of Mr Bunney being physically able to attend the appointment, the information available to the Centrelink officer at the time was: that Mr Bunney was limping; that there was a bus service near Mr Bunney’s home that would allow Mr Bunney to get to the YES offices close to the appointed time; and there was only a short distance from the city bus station to the YES offices.  There was no evidence that Mr Bunney could not walk, only that he walked more slowly because of his corn problems.  Taking into account the information available to the Centrelink officer at the time, I find the requirement, conveyed to Mr Bunney on 6 June 2006, that he attend an appointment at 9.00am on 7 June 2006 at the YES offices, to be reasonable in the terms of subsection 63(5)(b) of the Act.

Did Mr Bunney have a reasonable excuse for failing to attend the appointment with his Job Network Member?

15.      The two reasons given by Mr Bunney for his failure to attend the appointment with YES were that there was no bus transport available and that he could not walk as a result of medical treatment to his feet.  I will consider each of these reasons in turn.

Was bus transport available?

16.      Mr Bunney’s evidence was that he could not attend the appointment as there was no bus in the morning that would get him there on time.  He said that the first morning bus which came up Hoddle Street was a school bus service only.  Mr Bunney said that he knew every bus route there is in his area and that there is no bus stop in Hoddle Street.  When asked if he could have called on friends to drive him to the appointment Mr Bunney said that he was not associating with anyone at that time.  Mr Bunney also said that he could not afford the $12 needed for a taxi fare.

17.      Mr Noonan referred to the Warrnambool Bus Lines bus timetable for Route 3 North West (Exhibit A1), in which the route for the bus departing the City Stand at 8.30am is shown to include Hoddle Street.  The timetable shows that the 8.30am service is due to arrive back at the City Stand at 8.53am.  Mr Lucas gave evidence that there was no recorded reason why that service did not run on the 7 June 2006.  He said that there is a bus stop in Hoddle Street, between the two primary schools and about 150 metres from 19 Hoddle Street, where Mr Bunney lived.  Mr Lucas also said that the 8.30am service is not restricted to school children, but is available to any fare-paying passenger.  Mr Bunny did not challenge any of the above evidence.

18.      Mr Noonan submitted that a social security recipient is obliged to explore all possible transport options, including actively seeking bus timetables, if notified by the Secretary to attend a particular place.  He referred me to the decision in Secretary, Department of Family and Community Services and Williams (2003) 73 ALD 560. In that case, Member Davis said, at paragraph 23, that actively seeking some bus timetables for the suburbs involved was not difficult, nor did failure to do so constitute a reasonable excuse for non-attendance.  Mr Noonan submitted further that Mr Bunney had resided in Hoddle Street since December 2005 and would have known the bus timetable.  Mr Bunney should have caught the 8.30am bus which would have returned to the City Stand at 8.53am.  As the YES premises are only a five to ten minute walk from the City Stand, Mr Bunney would have been able to attend the YES appointment at 9.00am or shortly afterwards.  Mr Noonan submitted that Mr Bunney’s evidence about the unavailability of bus transport was not credible.  He also stated that, as an alternative to the bus, Mr Bunney could have requested a friend to drive him or travelled by taxi.

19.In considering this issue I note Mr Bunney’s oral evidence:

Well, I was told by Andrew to wait at Hoddle Street and there would be a bus in Hoddle Street.  I could have waited at Laverock Road where I normally wait but I was told by that know all bloke to wait at Hoddle Street because it goes right past my door, he said you've got to walk about two steps.  And I done that, mate, and he said it's a school bus, so I thought bugger you, I'm going home to have a shower and that, I'll get there when I when I get there, and I got there at 11 o'clock (Transcript, p35).

20.      Mr Bunney also said that if he had not gone home to have a shower he could have arrived at the YES offices by about 10.15am.

21.      After considering the evidence of Mr Lucas, which appeared to be well founded by a good knowledge of the bus services, I find it difficult to accept Mr Bunney’s evidence that he was told by the bus driver that the service was for school children only.  However, even if that were the case, I note from Mr Bunney’s own evidence that if he had made a reasonable effort to catch another bus he would still have arrived at the YES offices in a reasonable time for his appointment.  As a result I find that a bus service was available that would have allowed Mr Bunney to meet his appointment at the YES offices.

22.      As I have found that a suitable bus service was available to Mr Bunney, I do not need to consider the question of possible alternative means of transport, namely being driven by friends or the use of a taxi.

Did the condition of Mr Bunney’s feet prevent him from attending the appointment?

23.      Mr Bunney’s evidence to the SSAT was that his feet were the main reason for his not attending the appointment with YES.  He said that he gave Centrelink a doctor’s certificate for 7 June 2006.  Mr Bunney said that the procedure on his feet was for his corns which were cut and that for two days after the procedure he could walk only with great pain.  The SSAT accepted that on 6 June 2006 Mr Bunney underwent a podiatry procedure at South West Healthcare and this resulted in him having sore feet for several days afterwards.

24.      Mr Noonan referred to the evidence given by Dr A Chow of the Cambourne Medical Clinic who testified that the clinic’s records show that Mr Bunney did not attend the clinic on 6 June 2006.  Mr T Cronin, from the Warrnambool Medical Clinic, gave evidence that the records of the clinic show no attendance by Mr Bunney on 6 June 2006.  Mr Noonan submitted that Mr Bunney’s evidence that he underwent a corn removal procedure on 6 June 2006 and that the condition of his feet contributed to his non-attendance at the YES appointment on 7 Jun 2006 was not credible.  Mr Noonan submitted further that Mr Bunney was not prevented by his feet from attending YES later in the morning of 7 June 2006. Mr Bunny did not challenge any of the above evidence. Mr Bunney also did not object to any of Mr Noonan’s submissions.

25.      In considering Mr Bunney’s evidence I find significant contradictions.  In answer to my questions as to whether he had had treatment for his feet on 6 June 2006, Mr Bunney said … yes to answer your question I did have my feet cut on 6 June by a doctor … (Transcript, p36).  Previously, in answer to a question from Mr Noonan, Mr Bunney said the 6th of June I went to a doctor, who cut it (Transcript, p27).

26.      That evidence is in contrast to other statements Mr Bunney made during his evidence.  When asked by Mr Noonan whether he had his corn removal on 6 June 2006 Mr Bunney replied:

No, it wasn't.  What happened was, my doctor can't do it, all he can do is cut it and when - then a podiatrist has got to do the rest, which I have provided that letter to you as well, which I couldn't get in till about 7 July or something (Transcript, p21-22).

Later in his evidence Mr Bunney said:

It was not on 6 June, I got a letter stating that I couldn't get in there due to government funding … I had to wait to get an appointment but after I got assessed I had to wait another three months before they would even look at me.  And then I went to Dr Wayne Jennings, chiropractor in Banyan Street, Warrnambool and paid $80 cash to get it done … (Transcript, p22).

I then asked Mr Bunney when he had the $80 treatment on his foot and he answered that it was after 7 June.

27.      Taking into consideration the conflicting statements of Mr Bunney and the evidence from the medical clinics, I am of the opinion that Mr Bunney may have been seeking treatment around 6 and 7 June 2006; but he did not, in fact, have any treatment to his feet immediately before 7 June 2006.  I also note Mr Bunney’s evidence that the condition of his feet did not prevent him from going to the Centrelink offices on the morning of 7 June 2006 and later walking to the YES offices.

28.      As a result I find that the condition of Mr Bunney’s feet did not prevent him from attending the required appointment with YES made for 7 June 2006.

29.      I note that this finding contrasts with the finding of the SSAT on this issue.  On the evidence presented to them, the members of the SSAT accepted that Mr Bunney did have treatment for his feet on 6 June 2006.  In contrast, Mr Bunney’s evidence at this hearing was that his treatment did not take place until after 7 June 2006.

CONCLUSION

30.      Mr Bunney contended that he could not attend the 7 June 2006 appointment with YES because there was no suitable transport available and because he had a medical procedure on his feet on 6 June 2006 which made it too painful to walk and so attend the appointment.  I have found that suitable bus transport was available which could have taken Mr Bunney to the city within reasonable walking distance of the YES offices.  The bus service went along Hoddle Street, where Mr Bunny lived, and there was a bus stop within 150 metres of his home.  I have also found that Mr Bunney did not in fact have a medical procedure on his feet on 6 June 2006 and thus, he would have had no particular difficulty in attending the appointment because of the condition of his feet

31.      In conclusion, I am satisfied that the requirement for Mr Bunney to attend the appointment was reasonable under Section 63(5)(b) of the Act. However, I am not satisfied that Mr Bunney had a reasonable excuse for not attending the required appointment with YES (section 63(9) of the Act).  Therefore, the administrative breach rate reduction was correctly applied by Centrelink.

DECISION

26.      The Tribunal sets aside the decision under review and substitutes its decision that, as Mr Bunney had no reasonable excuse for failing to attend his appointment with YES on 7 June 2006, an administrative breach rate reduction of 16 per cent applies to Mr Bunney’s Newstart Allowance from 27 June 2006 to 21 August 2006.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)     Ursula Noyé

Clerk

Date of Hearing:  3 April 2007

Date of Decision:  30 May 2007

Advocate for the applicant:                 Mr T Noonan, Centrelink Legal Services

Advocate for the respondent:             Self-represented