Carol Anne Lutwyche v Secretary, Department of Family and Community Services

[2000] AATA 850

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2000/12

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      CAROL ANNE LUTWYCHE        
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr C P Webster (Senior Member)           

Date26 July 2000

PlaceLaunceston

Decision      The decision under review is affirmed.             
  [Sgd C P Webster]
   Senior Member
CATCHWORDS
Social Security – whether failure to enter newstart activity agreement subject to 18% rate reduction.

REASONS FOR DECISION

19 September 2000           Mr C P Webster (Senior Member)   

1. This is a statement of reasons for decision pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made on 26 July 2000.

2. The decision that is under review is a decision of the Social Security Appeals Tribunal (SSAT), made on 13 December 1999 when the Tribunal made a decision that supported Centrelink's officer imposing an 18 per cent rate reduction on Ms Lutwyche's pension for a period of 26 weeks on the basis of Ms Lutwyche's failure to enter into a newstart activity agreement.

3. It was agreed between Counsel representing the parties that the evidence presented at the SSAT was not really in dispute.   The respondent accepts that the evidence that Ms Lutwyche gave at the SSAT, except for a couple of matters I am going to mention, is truthful and correct.

4. The findings of fact of the SSAT is not disputed, and it is agreed by the applicant and respondent that those facts can be taken as facts to be found by me.    I simply note the facts as found by the SSAT are also found by me, and I think that on the evidence that those facts were properly found.  I will not repeat those, they are set out on page T6 of paragraphs 15 to 20 and 21 to 25 of the SSAT decision.

5. There are a couple of variations on those findings.    After hearing the evidence,  I find as a fact, that the first letter was not delivered and that the applicant has  given evidence to dispel any presumption that might arise from law that the applicant received the first letter.   I think in the circumstances it is reasonable to assume that the first letter did not arrive, however, that does not make any difference to my ultimate decision.    The crucial matter is whether or not it was reasonable for the applicant not to keep the appointment that was made with the job agency.

6. On the applicant's own evidence she admitted that she received the second letter, and knew what the letter said and had noted it in her diary and was ready to attend that appointment.   I note that there was obviously no need for her to do anything else at that time and that she did not have to contact anyone.  The applicant's evidence was that as a result of the circumstances surrounding her trip to Launceston, the emotional turmoil that she was in, she simply forgot the appointment.

7. The reasons that Ms Lutwyche forgot to attend the appointment regarding the newstart agreement were not beyond her control.    She was able to function normally;  she was carrying out responsible activities; she was able to look after the house; she was able to look after the animals; she was able to deal with her parents domestic affairs and any business affairs that arose, and deal with their mail; and if she had remembered the appointment she could quite easily have telephoned the department or the job agency and advised her inability to attend.   This is not a case where she was in a coma or was so mentally affected by depression or mental turmoil, that her reasoning powers and ability to function were affected to such an extent that she was unable to function.    It is a case that if she had remembered then she could quite easily have done something about it.   I do not think the failure to remember is reasonable and I find that there has been a breach.

8. The only other matter to deal with is whether or not there is an agreement and whether or not the agreement is such that the government or the respondent cannot impose a financial penalty.   I am using the applicant's counsel's words.    I find as a fact that there was not an existing agreement.   I think the evidence is clear that there was not an existing agreement.   Ms Lutwhyche conceded under cross-examination that she had not entered into a formal agreement and that the only agreement that she had entered into was in relation to employment that she had had at the Botanical Gardens.    Upon that evidence and the statement, referred to me by the applicant's counsel, in T16,  I find that she did not enter into an activity agreement prior to these events occurring.

9. As I have found that there was no agreement between the applicant and respondent, in the circumstances, it is unnecessary for me to consider Mr. Marmarinos' further arguments about whether or not penalties are justified under the agreement  if it is breached by the applicant.

10. I affirm the decision of the SSAT.   I note that  this Tribunal considers the law has been correctly set out in the decision of the SSAT.

    I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  26 July 2000
    Date of Decision  26 July 2000
    Counsel for the Applicant        Mr J Marmarinos, Community Legal Centre Inc.

    Counsel for the Respondent    Ms L Miller, Admin. Law Section, Department of Social Security