Cetinbas and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1028

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1028

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1048

GENERAL ADMINISTRATIVE DIVISION		)
Re		CETINBAS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr I Way

Date29 January 2007

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd]..........................

Mr I Way
  Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance Activity Agreement – Preparing For Work Agreement – Job Search Plan – taking reasonable steps to comply with the Agreement – delays – illness – notification – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975, section 37
Social Security Act 1991, ss 593(1)(a), (b), (e), (f), 593 (2A), 601(1), 601A, 626(1)(a), (b)
Employment Services Act 1994

CASE LAW
Dugan and Secretary, Department of Family and Community Services [2001] AATA 219
Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1997) 147 ALR 295

REASONS FOR DECISION

29 January 2007      Mr I Way, Member  

1.      This is application by Cetinbas (‘the Applicant’) for review of a decision of the Social Security Appeals Tribunal (‘SSAT’), dated 3 August 2006, that affirmed a Centrelink decision to impose 18% breach rate reduction period in respect of the Applicant’s Newstart Allowance. 

2. The Tribunal had before the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T55) and other documentary evidence for the Applicant (Exhibits A1 and A2), and for the Respondent (Exhibits R1 to R5). 

3.      The Applicant was self-represented and gave oral evidence.  Ms Phyllis Lee represented the Respondent and Ms Theresa Luccitti gave evidence for the Respondent by telephone.

background

4.      There is no dispute between the parties about a number of background facts in this matter and in view of this and on the material before it, the Tribunal finds as follows:

·The Applicant is in his early thirties and is unemployed.

·On 6 April 2006, the Applicant signed a Centrelink Preparing for Work Agreement (‘PFWA’) which included a Job Search Plan (‘JSP’). 

·The PFWA, including the JSP, is a Newstart Activity Agreement (‘NAA’) under the Social Security Act1991 (‘the Act’). 

·The Applicant’s Job Network Member was Mission Australia Employment Services (‘MA’), an organisation that the Applicant had registered with in January 2006, at which time he gave his mobile phone number as his contact number. 

·The JSP Activities state, inter alia: 

- Attend J.S.T. Course and activities with Mission Australia to complete 100   hours from 6 APR 2006 to 10 MAY 2006.

- Attend job search training workshop, Mon-Fri, 9am to 3pm support services with Mission Australia on 6 APR 2006.

- Other measures attend all selected Modules from 6 APR 2006 to 10 MAY 2006.

·By letter dated 22 April 2006, Centrelink wrote to the Applicant regarding his non-compliance with the terms of his JSP and requested him to call to arrange an appointment to discuss the matter. 

·On 1 May 2006 Centrelink wrote to the Applicant informing him his Newstart Allowance had been stopped temporarily because he did not respond to a request to contact Centrelink or attend an interview.

·On 2 May 2006 Centrelink imposed 18% rate reduction period on the Applicant’s Newstart Allowance. 

·On 9 June 2006 a Centrelink Authorised Review Officer (‘ARO’) affirmed the decision to impose 18% rate reduction period on the Applicant’s Newstart Allowance. 

·On 3 August 2006 the SSAT affirmed Centrelink’s decision to impose 18% breach rate reduction period in respect of the Applicant’s Newstart Allowance and this is the decision being reviewed by this Tribunal. 

issues and legislation

5.      The Respondent submitted that the issue before the Tribunal is whether the Applicant had a reasonable excuse for failing to comply with the terms of his NAA signed on 6 April 2006. In accordance with the applicable legislation, the issue before the Tribunal is whether the Applicant took reasonable steps to comply with his NAA signed on that date.

6. The Act relevantly provides:

593  Qualification for newstart allowance

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)the person is a CDEP Scheme participant in respect of the period; and

Note:For CDEP Scheme participant see section 1188B.

(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

…

(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

Note:See subsection (2A) on taking reasonable steps.

593(2A)For the purposes of paragraph (1)(f) or (2)(f), a person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement unless the person has failed to comply with the terms of the agreement and:

(a)the main reason for failing to comply involved a matter that was within the person’s control; or

(b)the circumstances that prevented the person from complying were reasonably foreseeable by the person.

601Activity test

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.

Note 1:For situations in which a person is not required to satisfy the activity test see:

(a)   section 602 (certain persons over 50);

(b)   section 603 (persons attending training camps in remote areas);

(c)   section 603A (special circumstances);

(d)   section 603AA (voluntary work).

Note 2:See subsections (2A) and (2B) on what paid work is unsuitable.

601ACertain actions deemed to be failure to satisfy activity test

601A(1)If a person, who is subject to the activity test in respect of a period, refuses or fails, without reasonable excuse, to attend a job interview, the person is taken to fail the activity test.

Note:For the consequences of failing the activity test see section 624.

601A(2)If a person, who is subject to the activity test in respect of a period, voluntarily ceases, without reasonable excuse, to take part in, or is dismissed for misconduct from, a labour market program, the person is taken to fail the activity test.

Note:For the consequences of failing the activity test see section 624.

601A(3)   If a person who is subject to the activity test in respect of a period fails, without reasonable excuse:

(a)to commence, or to complete, an approved program of work for income support payment that the person is required to undertake; or

(b)to comply with the conditions of such a program;

the person is taken to fail to satisfy the activity test.

Note:For the consequences of failing the activity test see section 624.

626Activity test penalties for failure to comply with Newstart Activity Agreement

626(1)Subject to subsection (2), if:

(a)a person is required to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and

(b)the person fails to take reasonable steps to comply with the terms of the Newstart Activity Agreement (the failure);

a newstart allowance is not payable to the person because of the failure.

applicant’s evidence and submissions

7.      The Applicant told the Tribunal that when he signed the NAA on 6 April 2006 he negotiated a delay of one week in the start of the Agreement, giving ‘personal issues’ as his reason for the delay.  He said that his Job Network contact (Theresa Luccitti), after checking with a colleague, agreed to a delayed start on 13 April 2006, however, she required him to undertake 10 hours of off-site job searching during this week.  The Applicant said he asked Ms Luccitti if the date on the agreement should be changed before he signed the agreement and he was told this was not necessary.  The Applicant said the finished date of his agreement was also extended to 10 May 2006 and in effect, he was given five weeks to complete the three week course. 

8.      In respect of phone contact between MA and the Applicant, the Applicant said he did not have a landline in his flat and relied on a pre-paid mobile phone.  He said his phone had no voice message facility, however he could receive SMS.  He said that at the relevant time he could receive calls but could not make out calls because he had no credit on the phone.  He said that he could make calls from a Telstra public payphone, some five minutes walk from where he lived.  The Applicant said he could not understand why MA would try to contact him about non-attendance on 7 April 2006 (as recorded by Centrelink), given that he had been told that he had an agreed start date of 13 April 2006.

9.      The Applicant told the Tribunal that after the Easter weekend (15-16 April 2006), he suffered severe diarrhoea and stomach cramps (which led to rectal bleeding) from Sunday night, 16 April to Saturday 22 April 2006.  He said that he had no medical treatment or contact with a doctor during this period and hoped he would get better by ‘toughing it out’, with rest and drinking fluids.  It was the Applicant’s evidence that he took his fortnightly Form (SU 19) to Centrelink on Monday, 24 April 2006 and advised Centrelink he had been ill for a week.  He said he told Centrelink he did not have a medical certificate and that he was told to write the details on the form, which he did.  The Tribunal notes that the SSAT recorded the Applicant giving evidence as follows:

On questioning, Mr Cetinbas said that he did not attend the office of Mission Australia that day because he assumed that Centrelink would relay the information about his illness to them.  He said that he didn’t realise that he would have to advise Mission Australia.  After further discussion, Mr Cetinbas said that Centrelink staff had told him to tell Mission Australia about his illness the next time he attended there.  He said that the job network member’s office was about a kilometre away from the Centrelink office.

10.     A letter from Centrelink dated 22 April 2006 was sent to the Applicant about not meeting his Activity Test. The Applicant said he had not been informed about that letter when he visited Centrelink on 24 April 2006 and at that stage had not received the letter.  The Tribunal notes that 22 April 2006 is a Saturday (Centrelink office hours being Monday to Friday) and that the letter states, inter alia, ‘you may not have met the Activity Test because you did not comply with the terms of your Job Search Plan on 7 April 2006.’ The Applicant said that after he received the letter dated 22 April 2006 he tried to reach the participation team on Wednesday, 26 April and Thursday, 27 April 2006 without success.  He said he did not leave a message as no-one ever calls back.  He said he also called the participation team late on Friday, 28 April 2006 and this time he did leave a message.  He said he used the Telstra payphone near his home to make these calls. The Applicant stated that by the close of business on Monday, May 1 2006 he had not received a response to his call made on 28 April 2006. He went into Centrelink on Tuesday, 2 May 2006 and was told his Newstart Allowance was suspended. He used a direct line at Centrelink to call a participation team and spoke to Ms To.  He said he explained why he had not undertaken the required activities - because he had been granted a delayed start, had been ill and also that he had had a problem with electrical faults at his place of residence.  The Applicant said that he was advised that he had already been breached and on being so informed, asked for his case to be reviewed and was told the matter would be forwarded to an ARO. 

11.     When asked by the Tribunal to explain the circumstances in respect of the electrical fault, the Applicant said that around Easter Sunday, 16 April 2006 he received an electrical shock from the taps in the shower in his Government housing flat.  He said he called maintenance and an electrician came to check out the problem the next day.  He said that by this time he was ill with diarrhoea and the electrician told him he had changed the element in the hot water service.  He said that due to illness he could not shower for a week and when he tried to shower again when he started to feel better, late on Friday, 21 April 2006, he got the same electrical shock.  The Applicant said he called maintenance again and an electrician came on 24 April 2006 and the problem was said to be fixed but, in fact, the problem was not fixed.  He said there were further calls before the problem was eventually fixed by changing the taps to plastic taps.  He said all the calls he made were on the public phone he had referred to earlier in his evidence.  The Tribunal notes that the Housing Commission record (T23/45) shows contact with the Applicant in respect of the electrical fault on 16, 18, 21 and 28 April 2006.  The Applicant said that he had to be at the premises to wait for the electrician to come during this period.  The Tribunal notes the Centrelink record of Department of Housing advice which ‘advised that the process involved in repairs being carried out – would under no circumstances require clients to sit home and wait for several days – technician would call and arrange appt. – if unable to contact client – technician will drop by and leave a note as to when will return and number to contact to arrange repairs.’

12.     The Applicant told the Tribunal that on 5 May 2006 he signed a new agreement to commence activity on 8 May 2006, which he did. Subsequently, after the ARO had dealt with the matter, his breach was reduced to eight weeks. 

13.     The Applicant told the Tribunal about the problems he had in dealing with the staff of MA and that his Job Network contact had been changed because of this. 

14.     The Applicant said he was still attending MA for three days a week and working for the dole on the other two days, doing clerical work.  He said he was trying to gain employment in financial administration, an area in which he has tertiary qualifications. 

15.     When asked by Ms Lee why he did not start his training on 13 April 2006 (given his own evidence that this was the date he thought he should start), the Applicant said that he thought he had some flexibility and could complete the three week course over a longer period.  He also said that he thought the course consisted of consecutive modules and he wanted to start and finish the course all at once; and 13 April 2006 being the Thursday before Easter, he would start after Easter on Tuesday, 18 April 2006.  He agreed he never asked for approval to start on this date and that he made no attempt to contact MA on 13 April 2006.  In answer to a question from Ms Lee the Applicant said he did not contact his Job Network Provider about not being present in the week after Easter because he was so ill he could not think rationally, could not get out of bed and was not even aware of what day it was. 

16.     Ms Lee asked the Applicant if an electrical technician had attended his flat on 18 April 2006 and if so, what had happened.  The Applicant said that a technician had called, he had let him in and described the problem and its location.  He said he did not make sure repairs were done, was not sure how long a technician was at his flat, possibly half an hour to one hour, and that he let the technician out and then went back to bed.  When asked if he could have cast his mind to contacting his Job Network Provider, he said he was not thinking rationally, that he could have but was not in a state where he could walk to the phone.  He said he was mentally OK, but physically not OK, and this was not within his control. 

17.     When questioned about his visit to Centrelink on 24 April 2006, the Applicant said he did not go to the nearby office of MA, thinking that if he had told Centrelink that he was sick (as he said he had done on the fortnightly form he handed in) then this would be OK. When asked about his dealings with Job Network Providers, the Applicant said that he had no dealings with MA prior to 6 April 2006 (apart from registering with them in January 2006) but agreed he may have registered with another provider years ago.  The Applicant did not accept that simply notifying Centrelink of an illness did not meet his obligation to directly inform MA about being sick and absent.  The Tribunal notes that the SSAT, in its Reasons for Decision, states:

The tribunal notes that Mr Cetinbas has been in receipt of newstart allowance for the periods from March 1998 to February 2000 and August 2001 to February 2003, during which times he had considerable dealings with both Centrelink and his job  network provider.  The tribunal does not accept that Mr Cetinbas would not have been aware of the need to directly notify the job network member of the reasons for his non-attendance at training.

The Applicant did agree that he knew if he missed his training commitments on course days this could result in a breach and missed payments.

18.     Finally, in cross-examination the Applicant said he could not recall receiving the SMS sent to him by MA on or about 12 April 2006 about his non-attendance. 

19.     In his final submissions the Applicant contended that he asked for a deferred start to his Job Search Course and was granted a one week deferment from 6 April to 13 April 2006.  He highlighted the fact that there was no record on his signed agreement of an approval of a delay to 13 April 2006 or on 10 April 2006 as claimed by MA.  He submitted that he had assumed that he had the flexibility to complete his course if he commenced after the Easter break but he was unable to do this because of illness.  It was submitted that the ARO, in making her decision, had wrongly based her decision on the Applicant being ill from 14 to 17 April 2006 and if she had realised he was ill over the period 17 to 22 April 2006 she would have accepted he should not be breached.  The Applicant contended that he did contact Centrelink on the first day that he could, namely, Monday, 24 April 2006, the first working day after the end of his illness and that he informed them of his illness then. He assumed they cross-referenced their information with MA and hence he had met his obligation to inform them. 

20.     The Applicant submitted that if Ms Luccitti’s evidence that no one is breached for missing one day is accepted, he should not be breached for missing training on 13 April 2006. It was further submitted that his illness and phone circumstances prevented him from taking action to inform MA during the week after Easter, that he did inform Centrelink of his illness as soon as he was well enough to do so on 24 April 2006 and that he did contact the participation team at Centrelink on Friday, 28 April 2006, did not receive a call back either on that day or on the following Monday. He then went into Centrelink on Tuesday, 2 May 2006 when he was told his Newstart Allowance was suspended. 

21.     The Applicant submitted that, in his view, he had acted reasonably in meeting his Job Search obligations and that his breach should not stand. 

evidence of teresa luccitti

22.     In Ms Luccitti’s evidence to the Tribunal, she stated she worked for MA and was the Job Network Member Contact Officer who dealt with the Applicant on 6 April 2006 when he underwent an initial assessment resulting in the preparation of his NAA.  She said the Applicant stated he could not start on 6 April 2006 (which she would normally have expected) because of personal issues and that she agreed to a couple of days delay in starting his activity, to 10 April 2006.  Ms Luccitti emphatically denied any agreement to a start date of 13 April 2006 or an even later date of 18 April 2006.  She said she likewise did not give an impression to the Applicant that the start date was flexible and that she had gone through the Job Search Training Course Information Sheet (Exhibit R2) with the Applicant explaining point by point, especially points one and five. 

23.     The Tribunal notes that points one and five state:

(1)      The Job Search Training course is part of your agreement with Centrelink and your Job Search Training Agreement with Mission Australia Fairfield to continue receiving payments.  FAILURE to ATTEND, UNSATISFACTORY ATTENDANCE or non-compliance with the Agreement, will result in a report going to Centrelink which may affect your Centrelink payments.

(5)       If you are sick or going to be absent due to a Job Interview.  Ring 9725 7577 and inform your Trainer.  If you are sick you need to bring a medical certificate when you come back to the course.  If you don’t, your Centrelink benefits may be affected.

24.     Ms Luccitti said she thought the Applicant was in no doubt that if he did not keep to the terms of his agreement his allowance would be stopped or reduced. 

25.     In cross-examination the Applicant pressed the point that he had been given a delayed start of his NAA to 13 April 2006.  Ms Luccitti agreed that she had consulted with a colleague about delaying the Applicant’s start date but said the agreed delay was only for a couple of days, until 10 April 2006.  Ms Luccitti said that while she was authorised to defer the start of Job Search training for valid reasons, she was not allowed to defer off-site job searching and had not agreed to the Applicant’s substituting this activity in lieu of course work commencing on 10 April 2006. 

26.     The Applicant referred Ms Luccitti to the file notes (Exhibit 3) where it is recorded that the Applicant visited MA requesting dates of when he did not attend.  The Applicant told the Tribunal he had notes recorded on a slip of paper (a small apple green sticker) by Evelyn (a MA Officer, senior to Ms Luccitti, to whom he had complained about Ms Luccitti) which he said supported his evidence that the visit took place on 8 May 2006.  Ms Luccitti said that she could not recall this happening on 8 May 2006 and the visit, as recorded, took place on 15 May 2006.  The Tribunal notes that record 2 (Exhibit R3) states:

(2)       Subject:  15/5/06 Client came in to JST and requested further info on PR.
Body:  He stated that I had given him permission to start JST 1 wk later & that I approved the Offsite hrs in this wk.  I explained that in interview he stated that he needed a couple of days to do “something” & he didn’t want to tell me what that was and he would explain it to Centrelink.  I explained that I did not tell him that he could start 1 week later, and that he could do his Offsite hours in this week as I am unable to approve this for any client & that the JST trainer approves offsite hrs when verification provided.  I advised him to show Centrelink all evidence he had about where he had been for the 2 weeks of non-attendance and that it would be up to them to decide whether or not they approved it.  Client got annoyed and stated that I was calling him a liar & that Ctrelink also called him a liar.  I stated that I was not calling him a liar but that I had clear recollection of the interview with him .t10226.

27.     The Tribunal notes that apparently the Applicant’s complaint about Ms Luccitti was considered by the Department of Employment and Workplace Relations and the outcome was that the Applicant was given a new Contact Officer, as already noted.

28.     The Applicant asked Ms Luccitti why there was a record of an attempt to contact him by phone on 7 April 2006 when MA expected him to start on 10 April 2006.  Ms Luccitti referred the Tribunal to MA records (Exhibit R4) where it is recorded on 7 April 2006:

7/4/06 Client DNA JST, coming on Monday 10/4/06  SS0817

29.     When the Applicant put to Ms Luccitti that he assumed he had some flexibility in carrying out his course work, the allowable time to complete the three weeks course being about five weeks, Ms Luccitti explained that there was always a contingent time built in to allow for unexpected events such as sickness and in this case, public holidays.  When the Applicant said he did not start on 13 April 2006, this being Easter Thursday, because he thought the course consisted of consecutive modules and he wanted to complete the course without break, Ms Luccitti said that the course modules were ‘stand alone’ and she thought his statement in respect of consecutive modules was ‘ridiculous’. 

30.     In respect of the Applicant’s breach, Ms Luccitti said she had ‘no hand in this’.  She agreed that in her view no-one would be breached for one day of non-attendance.

respondent’s submissions

31.      Ms Lee submitted that the Applicant did not have a reasonable excuse for his non-compliance with the JSP he signed on 6 April 2006.  It was submitted that the Applicant did not commence on 10 April 2006, as agreed; he did not notify MA as to why he did not attend; and he failed to respond to an SMS sent to him by the Job Network Provider on 12 April 2006 about his non-attendance.  As such, the Applicant could not be excused a breach. 

32.     It was submitted that even if the Tribunal were to accept the JSP commenced on 13 April 2006, this was a working day and there being no requirement for the training to be in consecutive modules or weekly blocks, the Applicant should have commenced on this day and it was not reasonable for him to not attend on this day.

33.     It was submitted that the Applicant had the opportunity to also contact MA on 24 April 2006, at which time it was entirely within the Applicant’s control to do so but he did not. Ms Lee further submitted his attitude towards complying with his NAA was extremely poor. Taking into account the Applicant’s failure to notify MA of the reasons for his non-attendance on 13 and 24 April 2006, Ms Lee contended that the Applicant had not taken reasonable steps to comply with the terms of his NAA and that therefore Centrelink had correctly imposed an Activity Test breach rate reduction period on the Applicant’s Newstart Allowance.

34.     In respect of the meaning of taking ‘reasonable steps’, Ms Lee referred the Applicant to Dugan and Secretary, Department of Family and Community Services, [2001] AATA 219.

consideration

35.     There is no dispute between the parties that the Applicant failed to comply with the terms of the NAA he signed on 6 April 2006 and in view of this, and on the material before it, the Tribunal so finds:

36.     The crucial issue in this matter is whether the Applicant took reasonable steps to comply with the agreement.

37.     In Dugan (Secretary, Department of Family & Community Services) it was stated:

(16)The meaning of taking “reasonable steps” has been considered by the Federal Court in relation to a case management activity agreement and the provisions of the Act and the Employment Services Act 1994: Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1997) 147 ALR 295. In his decision, Mansfield J stated:

“…. The wider question as to the conduct of the recipient of Newstart allowance in relation to the agreement, …. does not simply look to the particular failure to comply with the terms of the agreement .… [whether] that person had not been taking reasonable steps to comply with the terms of the agreement …. would depend on other respects upon the person’s attitude to performance of the terms of the agreement, attendances on other occasions, attempts to seek work and the range of information”, and
“…. If he has failed to comply with the terms of the agreement, he is still to be taken as taking reasonable steps to comply with the agreement if:

(a)      the main reason for that failure involved a matter that was within his control, or

(b)      the circumstances that prevented his compliance were not reasonably foreseeable by him … (Tribunal emphasis).

38. With respect to the application of section 593(2A) of the Act, the interpretation of the terms ‘within the person’s control’ and ‘reasonably foreseeable’ were addressed by Mansfield J in Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295. With respect to the first term, his Honour said:

The expression … requires that the main reason for the failure was something that the person had within that person’s control.  The concept of ‘control’ in that context is one of fact, but I think it is intended to mean something which the person could have done something about.  If the person is ill, or there is some entirely external factor eg a transport strike, it may amount to circumstances which are not within that person’s control.  The person, in those circumstances, would not recriminate that something should or should not have been done.  To forget to attend an appointment does not fall within that description; it is an occasion where there is an element of recrimination – the person could have done something about it, but for whatever reason, did not do so.

And further:

The use of the expression ‘reasonably foreseeable’ is commonplace.  It imports an objective assessment about a set of facts as they apply to a particular circumstance or to a particular person.  To say that, as here, they direct attention to the particular person does not import the need to determine the actual state of mind of that person.  It is to direct the objective assessment on the relevant facts in relation to particular person, with that person’s health, knowledge and background.  Some persons would be able to reasonably foresee circumstances more readily than others.

39.     The Tribunal is mindful that in this matter his Honour was addressing compliance with the Employment Services Act1994. However, the terms being considered are of like interpretation to the terms used in the Social Security Act 1991, in the Social Security context, and the Tribunal has assessed this matter against the meaning of taking ‘reasonable steps’ as set out above.

40.     The first issue to be considered in this matter is the correct start of the agreement signed by the Applicant on 6 April 2006.  The evidence of Ms Luccitti is that she approved a deferred start on 10 April 2006 while the Applicant contends Ms Luccitti gave him approval for a start date of 13 April 2006.  The issue is further clouded by the fact that there is no record of any deferment of the start date on the signed copy of the agreement; and that Centrelink would appear to have based their initial decision to question the Applicant about non-compliance with the agreement (in their letter dated 22 April 2006) on his failure to comply with the terms of his JSP on 7 April 2006.  In this respect, the Tribunal is mindful that there is a record of the Applicant not attending MA on 7 April 2006. 

41.     Both Ms Luccitti and the Applicant gave their evidence in a forthright manner and the Tribunal accepts that both witnesses have recalled, to the best of their ability, what was agreed.  The Tribunal is, after careful consideration of all the material before it, satisfied that the conflict in the evidence has most likely arisen because of communication difficulties between the relevant parties and because of deficiencies in the administrative process of finalising the written signed agreement.  The Applicant has consistently maintained that his agreement was to start on 13 April 2006 and the Tribunal accepts that this was his understanding of the outcome of his initial assessment on 6 April 2006.  As such, the Tribunal finds that the Applicant cannot be held responsible for non-compliance with his agreement prior to 13 April 2006. 

42.     The question then is whether the Applicant should have attended MA on 13 April 2006, or in the alternative, contacted them with reasons for non-attendance.

43.     The Applicant did not attend MA on 13 April 2006 and did not contact them to explain why.  His explanation to the Tribunal is that 13 April 2006 was the Thursday before Easter and he thought it would be better if he started his course after Easter when he could complete what he thought were consecutive modules without any break.  He also thought there was some flexibility in undertaking his course because he was initially given some five weeks to complete what could normally take about three weeks.  The Tribunal does not accept the reasons given by the Applicant as a reasonable excuse for him failing to contact MA about non-attendance on this day. 

44.     On his own evidence, the Applicant was well aware of the need to inform MA of his failure to attend course work and on this day it was entirely within his control to make contact with them either by telephone or in person. He did not.

45.     Turning then to the week following Easter.  The Tribunal is satisfied that the Applicant suffered a debilitating illness during this week and this coupled with his lack of any facility to phone out from his place of residence, provides a reasonable excuse for the Applicant’s non-compliance with his NAA during this week.  The Tribunal is satisfied that the Applicant’s non-compliance during this week involved matters that were not within his control. 

46.     The next period for consideration is the week of 24 to 28 April 2006.  (Clearly, Tuesday, 25 April 2006 being Anzac Day is not a relevant consideration).

47.     It is during this week the Applicant received Centrelink’s letter dated 22 April 2006 informing him that he may have his payment reduced because of non-compliance with his NAA.  The Tribunal notes 22 April 2006 is a Saturday and that the letterhead refers to office hours being Monday to Friday.  It would appear unlikely that this letter was dispatched by Centrelink on 22 April 2006 and most likely that the Applicant received the letter on Wednesday, 26 April 2006.  Receipt of the letter on this date is consistent with what the Applicant told the SSAT and this Tribunal, that is, he recalls trying to contact the participation team on 26 April 2006 (and subsequently).  The Tribunal accepts that the Centrelink breach procedures were in place and known to the Applicant on 26 April 2006 and the Tribunal is satisfied, considering all of the material before it, that from that date onwards the Applicant was taking reasonable steps to resolve his non-compliance with his NAA.  In arriving at this finding the Tribunal has taken into account that the SSAT, in its decision, referred to an online document of 1 May 2006 stating that the Applicant had not responded to the letter of 26 April 2006 and that this prompted suspension of his allowance.  The Tribunal is of the view that it is not unreasonable to forgive the Applicant for not contacting MA at this time. 

48.     The question then is whether the Applicant should have attended MA on 24 April 2006 or in the alternative contacted them with reasons for his non-attendance.

49.     The Applicant’s evidence is that on the morning of 24 April 2006 he attended Centrelink to submit his fortnightly form and inform Centrelink he had been ill. He assumed this information would be passed on to MA.  He further told the SSAT that Centrelink staff had told him to tell MA about his illness next time he attended there.  The Applicant also said he had to be home on the afternoon of 24 April 2006 to meet the maintenance electrician in respect of the electrical fault in his shower. 

50.     The Tribunal accepts the Applicant’s evidence that he attended Centrelink on the morning of 24 April 2006 and informed them that he had been sick and that he had to be at home on the afternoon to await the electrician.  However, the Tribunal does not accept that the reasons given by the Applicant provide a reasonable excuse for the Applicant not contacting MA about his non-attendance on 24 April 2006.  He had the whole morning at his disposal to visit MA in person or to at least call to inform them of his circumstances.  The priority to do so should have been far more pressing in his mind at this time than it was on 13 April 2006 given that by 24 April 2006 he had missed a week of his course, and that prior to being sick, an SMS had been set to his mobile phone by MA about his non-attendance.  The Applicant told the Tribunal that he cannot recall receiving this SMS but the Tribunal has no reason to doubt that the SMS was sent and that the Applicant’s phone was capable of receiving such messages.

51.     The Tribunal is satisfied that it was entirely within the Applicant’s control to make contact directly with MA on 24 April 2006 either in person or by telephone; and that he did not do so, knowing that he should.

52.     The question then is whether the Applicant’s failure to contact MA on 13 and 24 April 2006 justified the decision to impose a breach.  The Tribunal is mindful that Ms Luccitti has said that she would not expect a person to be breached for failing to comply for one day.  However, she did not have a hand in the Applicant’s breach and the decision to impose a breach is a matter for Centrelink to consider. 

53.     The Respondent has submitted that the Applicant’s attitude towards complying with his agreement was extremely poor and that because he failed to contact MA on 13 and 24 April 2006 he did not take reasonable steps to comply with his NAA. 

54.     After careful consideration of all of the material before it, and the submissions of both parties, the Tribunal is of the view that in the circumstances of this matter, the cumulative failures of the Applicant to contact MA about his non-attendance on 13 and 24 April 2006 are of sufficient weight to justify a finding that the Applicant did not take reasonable steps to comply with his NAA, and the Tribunal so finds.

55.     For the reasons given above the Tribunal affirms the decision under review.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

Signed:         .....[sgd]................................................................

Associate

Date/s of Hearing  18 December 2006
Date of Decision  29 January 2007
Applicant’s Representative      Self-represented
Respondent’s Representative  Ms P Lee of Centrelink, Legal Services.