Byrne and Secretary, Department of Social Services (Social services second review)

Byrne and Secretary, Department of Social Services (Social services second review) [2019] AATA 4471 (5 November 2019)
Division:GENERAL DIVISION
File Number: 2018/5473
Re:Andrew Byrne
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg

Date: 5 November 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Newstart allowance – cancellation – whether eligibility requirements met – 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
5 November 2019
BACKGROUND

Mr Byrne has been a recipient of the Newstart Allowance (“NSA”) since March 2016.[1]
[1] Exhibit 1, T Documents, T45, page 379, Centrelink note dated 9 August 2018.
On 16 November 2016 the Department of Human Services (“Centrelink”) cancelled Mr Byrne’s NSA because he missed an appointment with his employment services provider (“ESP”) without providing a suitable reason for his inability to attend.[2]
[2] Exhibit 1, T documents, T5, pages 70 - 71, letter from Centrelink to Mr Byrne dated 16 November 2016.
On 28 November 2016 Centrelink reiterated that the decision had been made that Mr Byrne did not have a reasonable excuse for his actions and he was not meeting the conditions for receiving NSA. Centrelink advised Mr Byrne that in order to fulfil his requirements and continue to receive the NSA that he must return a satisfactorily completed jobseeker diary. Centrelink also advised that he may lose his payment for up to eight weeks if he deliberately or persistently avoided his obligations.[3]
[3] Exhibit 1, T documents, T6, pages 72 – 74, letter from Centrelink to Mr Byrne dated 28 November 2016.
Centrelink again wrote to Mr Byrne on 1 June 2017 and advised that his NSA payments had been stopped because he had missed an appointment with his ESP on 1 June 2017 and had not made contact with them with a suitable reason for why he was unable to attend. Centrelink advised Mr Byrne that he needed to contact his ESP as soon as possible to discuss the reasons he did not attend and if required, to attend a new appointment and that if he failed to do so his payment may be cancelled.[4]
[4] Exhibit 1, T documents, T7, pages 75 – 76, letter from Centrelink to Mr Byrne dated 1 June 2017.
On 15 June 2017 Centrelink advised Mr Byrne that after consideration, a decision had been made that he did not have a reasonable excuse for his actions and he had not met the conditions for receiving payment. As a result a penalty was applied to his payment and he lost his payment from 1 June 2017 to 12 June 2017.[5]
[5] Exhibit 1, T documents, T8, pages 77 – 79, letter from Centrelink to Mr Byrne dated 15 June 2017.
Centrelink reviewed Mr Byrne’s participation history and advised Mr Byrne on 16 June 2017 that it had decided that the penalty that was applied was no longer applicable and therefore Centrelink had removed the penalty.[6]
[6] Exhibit 1, T documents, T9, pages 80 – 81, letter from Centrelink to Mr Byrne dated 16 June 2017.
Centrelink again wrote to Mr Byrne on 27 June 2017 and advised that his NSA payments had been stopped because he had missed an appointment with his ESP on 27 June 2017 and had not made contact with them with a suitable reason for why he was unable to attend. Centrelink advised Mr Byrne that he needed to contact his ESP as soon as possible to discuss the reasons he did not attend and if required, to attend a new appointment and that if he failed to do so his payment may be cancelled.[7]
[7] Exhibit 1, T documents, T10, pages 82 – 83, letter from Centrelink to Mr Byrne dated 27 June 2017.
Centrelink again wrote to Mr Byrne on 11 July 2017 and advised that his NSA payments had been stopped because he had missed an appointment with his ESP on 11 July 2017 and had not made contact with them with a suitable reason for why he was unable to attend. Centrelink advised Mr Byrne that he needed to contact his ESP as soon as possible to discuss the reasons he did not attend and if required to attend a new appointment and that if he failed to do so his payment may be cancelled.[8]
[8] Exhibit 1, T documents, T12, pages 87 – 88, letter from Centrelink to Mr Byrne dated 11 July 2017.
On 26 July 2017 Centrelink advised Mr Byrne that:[9]
(a)he had incurred a non-attendance failure and a penalty had been applied to his payment;
(b)he was still required to attend an appointment with his ESP and agree to a job plan (“Newstart Employment Pathway Plan”) and that if he could not attend the appointment and did not call the ESP with a valid reason prior to the appointment, or he may lose more of his NSA payments;
(c)if he has not met this requirement within four weeks of being asked to do so his payment will be cancelled; and
(d)if he has three or more failures applied over a six-month period a serious failure characterisation may be imposed and payment may be stopped for 8 weeks.
[9] Exhibit 1, T documents, T13, pages 89 – 91, letter from Centrelink to Mr Byrne dated 6 July 2017.
On 27 July 2017 Centrelink determined that Mr Byrne’s NSA should be suspended on the basis that he did not have a reasonable excuse for his failure to attend his appointment with his ESP on 5 July 2017.[10] Because Mr Byrne did not meet the requirements to receive NSA, a penalty was imposed.[11]
[10] Exhibit 1, T documents, T14 – T15, pages 92 – 97, letters from Centrelink to Mr Byrne dated 26 July 2017 and
27 July 2017.
[11] Exhibit 1, T documents, T16, pages 98 – 100, letter from Centrelink to Mr Byrne dated 28 July 2017.
Centrelink again wrote to Mr Byrne on 17 October 2017 and advised that his NSA had been stopped because he had missed an appointment with his ESP on 9 October 2017 and that he did not have a suitable reason for why he was unable to attend. Centrelink advised Mr Byrne that as a result a penalty had been applied to his payment.[12] Because Mr Byrne did not meet his mutual obligation requirements a penalty was to be deducted from his payments.[13]
[12] Exhibit 1, T documents, T17, pages 101 – 103, letter from Centrelink to Mr Byrne dated 17 October 2017.
[13] Exhibit 1, T documents, T18, pages 104 – 106, letter from Centrelink to Mr Byrne dated 18 October 2017.
In November 2017 Mr Byrne provided Centrelink with a medical certificate which indicated he had anxiety and depression, and was unfit for work between 8 November 2017 and 8 December 2017.[14]
[14] Exhibit 1, T documents, T19, page 107, medical certificate of Dr Muhammed Sattar dated 8 November 2017.
Centrelink wrote to Mr Byrne on 9 November 2017 to advise that an appointment had been made to discuss the impact of any medical condition he may have on his ability to work and what interventions, if any, may help improve his current work capacity. Mr Byrne was advised that he assessor would be telephoning him on 20 November 2017.[15]
[15] Exhibit 1, T documents, T20, pages 108 – 112, letter from Centrelink to Mr Byrne dated 9 November 2017.
On 10 November 2017 Dr Muhammad Sattar, General Practitioner, advised that he had referred Mr Byrne to a psychologist.[16]
[16] Exhibit 1, T documents, T21, page 113, medical report of Dr Sattar dated 10 November 2017.
On 20 November 2017 Mr Byrne was assessed by a registered occupational therapist (“Employment Services Assessor”) engaged by Centrelink. The Employment Services Assessor reported that:[17]
(a)Mr Byrne had anxiety and depression which was currently exacerbated and impacting on his mood control and coping ability;
(b)Mr Byrne was awaiting the commencement of psychological interventions;
(c)Mr Byrne was continuing with tertiary education;
(d)Mr Byrne had a temporary work capacity of 0 – 7 hours per week while he links with psychological services and undertakes treatment for his anxiety and depression;
(e)Mr Byrne’s exemption from work had been extended due to the length of time likely for treatment and improvement to occur; and
(f)excluding his temporary exemption, Mr Byrne had a baseline work capacity of 15 to 22 hours per week and was capable of engaging in light skilled work such as study or research.
[17] Exhibit 1, T documents, T22, pages 114 – 120, employment services assessment report dated 20 November
2017.
On 9 December 2017 Mr Byrne was advised by Centrelink that an appointment had been made for him to attend with a service officer on 27 December 2017 to discuss his current circumstances. Centrelink advised that in order to continue receiving NSA he must keep that appointment and, depending on the circumstances, agree to, or renegotiate, his job plan.[18]
[18] Exhibit 1, T documents, T24, pages 124 – 125, letter from Centrelink Byrne dated 9 December 2017.
On 14 December 2017 Mr Byrne was advised by Centrelink of a new appointment with a Service Officer scheduled for 28 December 2017.[19]
[19] Exhibit 1, T documents, T25, pages 126 – 127, letter from Centrelink Byrne dated 14 December 2017.
On 22 March 2018 Ms Wendy Frampton, Accredited Mental Health Social Worker, reported that Mr Byrne had commenced counselling and therapy on 12 March 2018 and that he was continuing with regular counselling sessions to manage his symptoms of stress and depression.[20]
[20] Exhibit 1, T documents, T26, page 128, report of Ms Frampton dated 22 March 2018.
On 9 July 2018 Mr Byrne was advised by Centrelink that his work exemption (provided to him on the basis of his medical condition) has now ceased and he was required to engage with his Disability Employment Provider.[21]
[21] Exhibit 1, T documents, T28, pages 131 – 132, letter from Centrelink to Mr Byrne dated 9 July 2018.
On 12 July 2018 Dr Sattar completed a medical certificate which indicated My Byrne had anxiety and depression and was unfit for work.[22]
[22] Exhibit 1, T documents, T29, page 133, medical certificate of Dr Muhammed Sattar dated 12 July 2018.
On 18 July 2018 Centrelink wrote to Mr Byrne stating that its records showed he had behaved in a way that did not allow an appointment arranged by his provider to be completed on 18 July 2018. As a result, Centrelink advised Mr Byrne that his NSA had been “stopped”, effective from 10 July 2018, and that he needed to contact his ESP as soon as possible.[23]
[23] Exhibit 1, T documents, T30, pages 134 – 135, letter from Centrelink to Mr Byrne dated 8 July 2018.
A Centrelink file note reports that:[24]
(a)at the meeting on 18 July 2018 with the ESP Mr Byrne refused to sign a job plan or look for work;
(b)at a rescheduled appointment with the ESP on 20 July 2018:
(i)it was explained to Mr Byrne that there was a risk his NSA would be cancelled if he refused to sign the Newstart Employment Pathway Plan (“NEPP”);
(ii)Mr Byrne refused to sign the NEPP because he was a student;
(iii)it was explained to Mr Byrne that his allowable study time had already been exhausted;
(iv)Mr Byrne indicated that he thought continuing study for the next 5 years was more constructive than looking for work;
(v)Mr Byrne was abusive and refused to discuss the job plan and, as a result, the police had to be called.
[24] Exhibit 1, T documents, T31, pages 136-137, Centrelink file note.
On 20 July 2018 Centrelink advised Mr Byrne that his NSA had been cancelled because of his clear admissions that he had no intention of looking for work at any stage.[25]
[25] Exhibit 1, T documents, T32, pages 140 – 141, letter from Centrelink to Mr Byrne dated 20 July 2018.
On 23 July 2018 Mr Byrne supplied Centrelink with Dr Sattar’s medical certificate which indicated that he was still suffering from anxiety and depression and was unfit for work.[26]
[26] Exhibit 1, T Documents, T33, page 142, medical certificate of Dr Raja Sengupta dated 23 July 2018.
On 25 July 2018 Mr Byrne contacted Centrelink and requested that his NSA be restored. As a result of the interaction between Mr Byrne and Centrelink’s employees, police attended the Centrelink office and took Mr Byrne for a mental health assessment.[27]
[27] Exhibit 1, T Documents, T34, page 143, Centrelink social worker contact case note dated 25 July 2018.
Claims History
Mr Byrne requested a review of Centrelink’s decision of 11 July 2018 to not pay his NSA.[28] The Authorised Review Officer (“ARO”) affirmed Centrelink’s decision on the grounds that Mr Byrne had been repeatedly advised on his obligation requirement for NSA and had continually failed to meet those obligations. The ARO found there was no reasonable excuse for his failure to comply with his obligations and therefore he did not qualify for NSA and it had been correctly cancelled.[29]
[28] Exhibit 1, T documents, T37, pages 146 – 147, request for statement dated 3 August 2018.
[29] Exhibit 1, T Documents, T38, pages 148 – 179, Decision of Authorised Review Officer and notes dated 6 August
2018.
Mr Byrne then sought a further review with the Social Services and Child Support Division of this Tribunal (“SSCSD”). The SSCSD rejected Mr Byrne’s claim and affirmed the ARO’s decision on 13 September 2018.[30]
[30]Exhibit 1, T Documents, T2, pages 5 – 14, SSCSD’s Decision and Reasons for Decision dated 13 September 2017.
On 24 September 2018, Mr Byrne lodged an application for review of the SSCSD’s decision to this Tribunal.[31] Mr Byrne contends that the reason he had his NSA allowance cancelled has “absolutely nothing to do with being a legitimate jobseeker or not. But has everything to do with the incident which occurred at the [ESP] office in early July”. In his application for review Mr Byrne contends (unedited):
The original reason why centrelink cancelled my Newstart allowance was because they stated that I refused to sign a job network plan. This is a lie and Centrelink knows I can prove this is a lie and even centrelink investigation officer [a Centrelink Officer] admitted that centrelink are in the wrong by canceling my Newstart. It was only after this admission by [a Centrelink officer] that Centrelink changed their story to not being a legitimate jobseeker 3 weeks after my Newstart was cancelled...
[31] Exhibit 1, T Documents, T1, pages 1 – 4, Application for Review dated 24 September 2018.
Mr Byrne informed the Tribunal that his NSA was reinstated in November 2018.
ISSUES FOR DETERMINATION
The issues for determination are whether:
(a)Mr Byrne qualified for NSA on 10 July 2018; and
(b)Mr Byrne’s NSA was correctly cancelled on 20 July 2018.
RELEVANT LEGISLATION
NSA Eligibility Requirements
Section 593 of the Social Security Act 1991 (Cth) (“the Act”) sets out the qualification requirements for NSA. Relevantly here, Mr Byrne must:
(a)have been unemployed; and
(b)he must have either:
(i)satisfied the “activity test”; or
(ii)not been required to satisfy the activity test.
Pursuant to section 595(1)(a)(ii) of the Act the Secretary may treat a person as being unemployed throughout a period if during the period, the person undertakes any other activity, as a result of which he or she would, but for this subsection, not be taken to be unemployed. Section 595(3) of the Act sets out what the Secretary must take into account in determining whether to treat a person as being unemployed as follows:
(3) In deciding whether to treat a person as being unemployed, the Secretary is to take into account:
(a) the nature of the activity undertaken by the person so as to comply with a requirement under subsection 601(1A) (activity test) or a requirement in a Newstart Employment Pathway Plan; and
(b) the duration of the activity; and
(c) any other matters relating to the activity that the Secretary considers relevant.
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 Act.
If the person fails to comply with a requirement in a NEPP that is in force, a person is taken not to satisfy the activity test.
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 Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
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.
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.
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)(a) of the Administration Act.
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 the failure and, relevantly, ends on the day before the person complies with any further reconnection requirement imposed: section 42H(4) of the Administration Act.
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.
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.
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;
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.
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.

Section 613 of the Act provides relevantly that NSA is not payable to a person enrolled in full-time study[32] unless the person’s study is approved under a NEPP.[33]
[32] Section 613(1), Act.
[33] Section 613(2)(b), Act.
WAS MR BYRNE QUALIFIED FOR NSA ON 10 JULY 2018?
It is not in dispute that during the relevant period (between 10 July 2018 and November 2018 when his NSA was reinstated) Mr Byrne was unemployed and enrolled in full-time study. As a result, pursuant to section 613 of the Act (see para 45 above), NSA was not payable to Mr Byrne unless his study was part of his NEPP.
It is not in dispute that at 10 July 2018 Mr Byrne had not entered into a NEPP with his ESP.
Mr Byrne told the Tribunal that:
(a)Centrelink had “continually changed their story” regarding why his NSA had been cancelled;
(b)at the appointment with the ESP on 10 July 2018:
(i)he had a disagreement about a medical certificate being rejected;
(ii)the ESP refused to allow him to sign the NEPP;
(c)he was a recipient of NSA in 2016/2017 when he was also a full-time student; and
(d)at the meetings in July 2018 he was never provided with a NEPP to sign.
At the appointment on 10 July 2010 there was clearly confusion on both sides regarding whether Mr Byrne had a medical certificate exempting him from working or looking for work.
The period between July and November 2018 was clearly very stressful and difficult for Mr Byrne. He told the Tribunal:
In the course of that four to five months period, I had no phone, no internet, no food, no money, no car, no nothing, and I had to go to Gympie Magistrates’ Court, because I was being evicted from my house, because of these Centrelink lies.
… I was driven to the point of homelessness, destitution and suicide, and in fact the only reason I’m sitting here talking to you today, alive and talking to you today, is because 5 my real estate agent, who I don’t blame at all, filled out the eviction notice incorrectly, so the case was dismissed.
…I was lucky enough that there was a social worker sitting in that court, who heard my case, and she took action.
…it got to the point where I had to go through bins just to find food to eat.
Unfortunate events clearly occurred in July 2018 at the appointments with the ESP. It is not necessary for the Tribunal to conclude what happened at those appointments or make a finding regarding why a NEPP was not signed.
Mr Byrne was originally informed by Centrelink that his NSA was cancelled because he refused to look for work. Now Centrelink relies on the fact that he has not entered into a NEPP which provides for Mr Byrne to undertake full-time study. Mr Byrne’s frustration is understandable, but it does not change the outcome. The Tribunal is bound to apply the relevant law to Mr Byrne’s situation. The law is clear. NSA is not payable in these circumstances.
Although Mr Byrne has previously been entitled to be paid NSA while studying, this was because studying was part of his NEPP.[34] For example, in an NEPP for the period between August 2016 and February 2017, Mr Byrne was, among other things, obligated to undertake full-time study.[35]
[34] Section 613, Act; Exhibit 1, T Documents, T45, page 392.
[35] Section 613, Act; Exhibit 1, T Documents, T45, page 392.
Mr Byrne may, if he feels he has been dealt with unjustly by Centrelink, make a complaint to the ombudsman, or apply for compensation through Centrelink if he believes that he has suffered financial loss through maladministration.
Conclusion
Mr Byrne may not have reacted the way he had if it had been explained to him that, despite the fact that he was studying, he needed to sign the NEPP in order to receive NSA. The original reasons given for cancelling Mr Byrne’s NSA have nothing to do with the primary reason put forward now. The Tribunal can understand Mr Byrne’s frustration at being told different reasons for cancellation. It has undermined his confidence and trust in Centrelink. That being said, this does not change the position under the legislation. The Act makes it quite clear that a full-time student cannot receive NSA. The Tribunal has no discretion to order otherwise. The cancellation of Mr Byrne’s NSA placed him in a precarious and extremely stressful period for 4 months. This stress was in addition to his anxiety disorder for which he was seeking treatment. Aggression is not to be tolerated towards the staff of Centrelink and it is therefore perfectly understandable why Centrelink staff and the ESP felt it necessary to call the police on occasion and to also organise for a special communication procedure to be in place. Despite Mr Byrne’s alleged conduct, care should have been taken by Centrelink to ensure that he was aware of the real reason his NSA may be cancelled and ought to have explained to him the importance of entering a NEPP which contained study provisions. The Tribunal believes that if Centrelink had more clearly explained this to Mr Byrne the matter could have been resolved without the level of turmoil and angst experienced by everyone involved.
DECISION
Mr Byrne’s appeal fails.
The decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 5 November 2019

Date of hearing: 15 August 2019

Applicant: In person

Advocate for the Respondent: Mr Chris Bishop, Partner, Mills

Solicitors for the Respondent: Mills Oakley

[2019] AATA 4471

5 November 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Procedural Fairness

Jurisdiction

Statutory Construction

Date of hearing:	15 August 2019
Applicant:	In person
Advocate for the Respondent:	Mr Chris Bishop, Partner, Mills
Solicitors for the Respondent:	Mills Oakley