Cheung and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1154

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1154

ADMINISTRATIVE APPEALS TRIBUNAL       )          No N2005/802

GENERAL ADMINISTRATIVE DIVISION		)  )
Re		YU CHEUNG

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N. Isenberg, Member

Date21 November 2005

PlaceSydney

Decision The decision under review is affirmed.

[SGD] Ms N. Isenberg
Member

  

CATCHWORDS

SOCIAL SECURITY – newstart allowance – 3 activity test breaches – non-payment period imposed – no reasonable efforts made to comply with terms of Preparing for Work Agreement – no special circumstances exist beyond Applicant’s control making it unreasonable to expect compliance with terms of Preparing for Work Agreement – decision affirmed.

Social Security Act 1991 – ss. 593, 601, 603A, 606, 626, 630A, 644AA, 644AE

REASONS FOR DECISION

21 November 2005  Ms N. Isenberg, Member   

DECISION UNDER REVIEW

1.       This is an application by Mr Cheung for review of a decision by the Social Security Appeals Tribunal (“SSAT”) made on 24 March 2005 regarding his payment of newstart allowance. The SSAT set aside the decision of an Authorised Review Officer (“ARO”) who decided to apply three activity test breaches and a non-payment period of Mr Cheung’s newstart allowance for eight weeks. The SSAT substituted a decision that, although Mr Cheung had failed three times to comply with his activity agreement, he would remain entitled to payment of newstart allowance at the 24% reduced rate until such time as he was correctly notified of the commencement of the non-payment period.

2.      As a result, Mr Cheung was paid at the 24% reduced rate for the period 27 April 2005 to 2 May 2005 and his eight week period of non-payment ran from 3 May 2005 to 27 June 2005.

THE HEARING

3. At the hearing, Mr Cheung was self represented and was assisted by a Cantonese interpreter. Centrelink was represented by Mr J. Kenny from Centrelink. Mr Cheung gave evidence. I had before me the documents (“T-documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

BACKGROUND

4.      Mr Cheung was born on 9 September 1973 and has been a resident in Australia since 1989.  He has been in receipt of newstart allowance on and off since 2000.

5.      By notice dated 8 October 2004, Mr Cheung was required to attend a meeting on 14 October 2004 with a contracted Community Works Co-ordinator at Mission Australia, Bowral to, amongst other things, negotiate a Preparing for Work Agreement (“PWA”) (T11).  He did not attend on that date but did so on 19 October 2004 when he attended an induction seminar about Work for the Dole. Information was presented at the seminar, and Mr Cheung signed a PWA in which he undertook to “commence, fully participate in and complete Work for the Dole from 14 October 2004 to 13 April 2005…” (T63). From several options available, Mr Cheung chose work at the Salvation Army store at Bowral, which the program required him to attend on 22 October 2005, and at which time he would be able to settle his pattern of attendance with the Work for the Dole provider (see T63/222).  

6.      On the same day he entered the PWA, Mr Cheung attended Centrelink’s Bowral office and presented a Supreme Court of NSW Notice of Listing dated 11 October 2004 in which he was named as Defendant (T12). The Notice of Listing indicated that the Plaintiff had not attended the hearing on 8 October 2004 and that the proceedings were adjourned for Directions on 28 October 2004. The Centrelink officer with whom Mr Cheung spoke recorded (at T14/61):

“… Customer states has to attend court cases at present. He had a letter for one appearance. I advised him that this was not enough to exempt him from work for the dole. I advised him that he would have to contact work for the dole each time that he had to attend court…”

7.      Mr Cheung failed to participate in his Work for the Dole Program on 22 October 2004.

8.      On 26 October 2004 the Community Works Co-ordinator wrote to Mr Cheung noting his non-attendance on 22 October 2004 and his obligation to provide confirmation documentation for any days he is absent (T63/227). The letter noted that such documentation can include a medical certificate, a contact name and number for a job interview he may have, or a letter from the court regarding legal matters.  Further, it was noted that Centrelink had been advised of his non-attendance and his obligation to continue until his scheduled finish date, being 9 February 2005.

9.      At an interview on 29 October 2004 and by letter of the same date, Centrelink notified Mr Cheung that he committed an activity test breach on 22 October 2004 and that his newstart allowance would be reduced by 18% from 12 November 2004 to 12 May 2005. He was advised at the interview that the breach would not be removed without evidence that he was in court every day (T19).  Further, the letter stated (at T18):

“There are a number of options that may result in the breach penalty being stopped, such as undertaking a Work for the Dole program or another approved activity or if you comply with the original request or requirement as soon as possible…”

10.     By 15 November 2004, Mr Cheung had still not attended the Work for the Dole Program.  On 24 November 2004 an officer at Centrelink Bowral noted that Mr Cheung had been told to “bring in proof of dates he is at court and details of his [obligations regarding] court… but he won’t bring anything in” (T25).

11.     By letter dated 25 November 2004 Centrelink notified Mr Cheung that he had committed a second activity test breach on 15 November 2004. His newstart allowance would be reduced by 24% from 8 December 2004 to 7 June 2005 (T32).

12.     On 1 December 2004, Mr Cheung contacted Centrelink in Bowral and a Centrelink officer noted (T35):

“… [A]dvised him again of obligations to [Work for the Dole] and that he would get a 100% breach if he [does not attend] again, he told me he didn’t turn up yesterday because ‘you know?’ and that he couldn’t attend today because he had to catch a 2pm train to Sydney for a 4:30pm [appointment]. I asked why he couldn’t go this morning he said he was in bed and it was too hot. I have told him over and over of his [obligations] he is aware of the possibility of 100% breach.”

13.     On 6 January 2005 Mr Cheung attended an interview with a Centrelink officer, by which time he had committed a third activity test breach (T49).  It was noted that at the interview, Mr Cheung claimed that he was unable to attend Work for the Dole because of his need to report daily to Bowral police and court commitments.  He was asked to provide the telephone numbers of his legal representatives and had not done so by the following day.

14.     It was noted that on 10 January 2005 Mr Cheung argued that he had to see a solicitor and barrister nearly every day and could not attend the Work for the Dole Program.  A Centrelink officer noted that he had spoken with Mr Cheung’s barrister who said that he had to see Mr Cheung at best once a week. Mr Cheung’s solicitor also advised that there was no way that Mr Cheung had been in weekly to see him.  The officer also noted the other “excuses” given by Mr Cheung which he gave when he was called about his absences, including that it was “too hot” and that he was “tired as he was out the night before” (T39).

15.     In a statement dated 19 January 2005, Mr Cheung stated that he has one court matter with one solicitor, a second matter with another solicitor, two matters with a barrister and one matter in Parramatta Court with no solicitor and which requires his attendance two days per week (T51).

16.     By letter dated 21 January 2005, Centrelink notified Mr Cheung that he had committed a third activity test breach on 25 November 2004 and that a non-payment period of eight weeks of his newstart allowance would be imposed from 24 January 2005 to 24 March 2005 (T52).    

17.     Following a request to Centrelink for a review of the breach and cancellation decisions, Mr Cheung was notified on 2 February 2005 that the decision to impose a non-payment period had been affirmed (T58).

18.     On 17 February 2005 an ARO affirmed the decision to apply three activity test breaches and an activity test non-payment period on Mr Cheung’s newstart allowance (T64).  Because payment of Mr Cheung’s newstart allowance continued pending the ARO decision, a notice dated 18 February 2005 notified him of the cancellation from that date (T65).

19.     On 28 February 2005 Mr Cheung appealed to the SSAT and was paid newstart allowance pending the outcome of the review.  On 24 March 2005 the SSAT set aside the ARO decision and substituted a decision that while Mr Cheung failed three times to comply with his activity agreement, he had not been properly notified of the commencement of the non-payment period.  It was decided that he remained entitled to payment of newstart allowance at the 24% reduced rate and would continue to be entitled until such time as the commencement of the non-payment period was properly notified. As noted earlier in these reasons for decision, Mr Cheung has since been provided the equivalent of 14 days notice of non-payment, and this occurred from 3 May 2005 to 27 June 2005.

LEGISLATION

20. Section 593 of the Social Security Act 1991 (“the Act”) provides that a person is entitled to newstart allowance if that person is unemployed and satisfies the activity test. This involves complying with the terms of any activity agreement that may be in force. A PWA is such an activity agreement.

21. Section 601 of the Act provides that a person satisfies the activity test if that person is actively seeking work and is willing to undertake suitable paid work. If a person actively seeks work but does not comply with his/her PWA, the activity test is not satisfied: s. 601(5) of the Act.

22. A PWA can require a person to participate in the Work for the Dole Program, which is a species of what is described in section 606(ec) of the Act as “an approved program of work for income support payment”.

23. Section 601(4) of the Act provides that an activity test is satisfied if the person takes reasonable steps to comply with a PWA. Section 601(6) of the Act provides:

601(6) For the purposes of this section, a person takes reasonable steps to comply with a notice under subsection (1A), with a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply 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.

24. Section 626(1) of the Act provides that newstart allowance ceases to be payable for failure to take reasonable steps to comply with the terms of an activity agreement. Furthermore, section 626(1A) of the Act provides:

626(1A) If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:

(a) if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or
(b) if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non-payment period applies to the person.

25. Section 644AA(1) of the Act sets the activity test breach rate reduction period at 26 weeks. Section 644AE of the Act sets the rate reduction at 18% for a first breach and 24% for a second breach. Section 630A of the Act sets the activity test non-payment period, being for the third or subsequent breach, at eight weeks.

26. In addition, section 603A(1) of the Act provides that a person is not required to satisfy the activity test for a period not exceeding 13 weeks if:

(a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and
(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that period.

ISSUES BEFORE THE TRIBUNAL

27.     The issues before the Tribunal are as follows:

·Whether Mr Cheung failed to comply with the terms of his PWA on 22 October 2004, 15 November 2004 and 25 November 2004.

·Whether Mr Cheung made reasonable efforts to comply with the terms of his PWA.

·Whether there were any circumstances that were not within Mr Cheung’s control that prevented him from complying with the terms of his PWA.

·Whether there were any circumstances that were not reasonably foreseeable that prevented Mr Cheung from complying.

·Whether there were any special circumstances beyond Mr Cheung’s control and that in those circumstances it would be unreasonable to expect him to comply with the terms of his PWA.

CONSIDERATION OF THE EVIDENCE

28.     In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.

29.     The issues to be determined have been identified and are addressed as follows:

Did Mr Cheung fail to comply with the terms of his PWA on 22 October 2004, 15 November 2004 and 25 November 2004?

30.     This question is shortly answered, and there appears to be no dispute that Mr Cheung entered a PWA on 19 October 2004 but failed to participate in the Work for the Dole program at any time, other than for a few minutes when he attended the Bowral Red Shield store on 22 October 2004.

Were there any circumstances that were not within Mr Cheung’s control that prevented him from complying with the terms of his PWA?

31.     Mr Cheung gave evidence that at the time he entered the PWA he was “too busy” to undertake any work.

32.     Mr Cheung’s evidence was that, at the time, he was embroiled in litigation.  The SSAT obtained the following details from him in relation to that litigation:

·A family law case at Parramatta Family Court – there is no solicitor involved;

·The Australian Federal Police have charged him with forged documents. This case is being heard at the Parramatta Local Court;

·“A landlord and tenancy matter being heard at the Rent Tribunal;

·The NSW Police have charged him with fake documents;

·He is a witness at the NSW Supreme Court for his grandmother and cousin in a matter relating to borrowing money and a mortgage;

·Another family law matter at the Supreme Court in Sydney;

·He also has to report daily to the Bowral Police Station.”

33.     I asked Mr Cheung to clarify the nature of the litigation.  He said there were 7 matters on foot at that time.  He told me of litigation in the Family Court wherein a former partner had been awarded property belonging to Mr Cheung.  She was awarded costs and Mr Cheung was disputing that matter also.

34.     Mr Cheung said that his grandmother and his cousin had lodged caveats over his properties (at Cabramatta and Greenacre) because he had borrowed money from them.  For reasons which are unclear Mr Cheung was said to be the Defendant in 2 proceedings in relation to the caveats in the Supreme Court.  He said the proceedings had been brought with a view to defeating his former partner’s claim to the properties.  He also said he was a witness in proceedings in relation to the caveats but it was unclear if these were different proceedings to the ones in which he is the Defendant.

35.     Mr Cheung also had been charged with ‘forgery’ by either or both the Australian Federal Police and the NSW Police in relation to a certificate of title in respect of one of the properties.  He was unsure when he had been arrested in association with that matter but said he had to report to Bowral Police station daily.  He thought this was actually before he had been charged.  He understood this matter is currently part heard in the District Court and a resumed trial lasting about 10 days is to take place in a couple of weeks.

36.     In addition, Mr Cheung had a matter before the Tenancy Tribunal.

37.     Mr Cheung said his lawyers needed to see him and would tell him when to come to their offices in Sydney.  He said he would travel from his home in Mittagong to Sydney by train and this was very time consuming.  Trains do not run frequently from Mittagong, and the trip to see his lawyers in Sydney took approximately one hour each way.

38.     Mr Cheung said he would go to court but the registrar would say “come back” on another (specified) day.  Sometimes there was more than one matter on the same day, or he would have to see the lawyers as well as go to court.

39.     Mr Cheung gave the name of a barrister and 2 solicitors, all of whom were apparently engaged in relation to his criminal matter. A new solicitor has recently been engaged.

40.     I asked Mr Cheung what were the dates of his court attendances and solicitor’s appointments.  He said that he did not have that information.  He did not keep a diary but he said the solicitors would write the next (court or conference) date on a business card.  He said when the card was “full” he would “chuck it out”.  He acknowledged that he had been asked many times by Centrelink for evidence and details of these appointments but he was always being asked after he had already chucked out the card.

41.     Mr Cheung said that he had “many documents” at home about his court cases, but his reading of English was poor and he did not know what they were.

42.     The only document which has been produced by way of verification of Mr Cheung’s court obligations was a listing notice in which he is named as Defendant.  He told me that this was one of the caveat matters.  He showed me a business card from his present solicitor in relation to an appointment this afternoon and with another date, presumably the trial date.

43.     I note from the papers that Mr Cheung has been invited to provide details of the litigation and his requisite attendances on many occasions: by Centrelink (at least 5 occasions) and by the SSAT. He was asked to provide details at the telephone conference prior to the hearing. At that time, he said that he would try to locate the court documents/listing notices and the solicitor’s business card with the appointment dates on the back. No details have been provided other than as mentioned above.

44.     I accept that a litigant needs to attend court and conferences with his/her legal advisers. However, I have significant reservations that the number of attendances was anywhere near those suggested by Mr Cheung.

45.     Firstly I note that Mr Cheung’s evidence before me with respect to the nature of the litigation was vague in the extreme.  His account before me of the nature of the various matters differed to that given to the SSAT, and was also different to his Statement which he provided to Centrelink on 19 January 2005 (T51).  He was not sure when he was arrested on the forgery charges and thought, somewhat bizarrely, that his bail reporting conditions had been imposed before he was even charged.

46.     Mr Cheung also said that in some matters he was a witness only.  His obligations in those matters would be far less than those of a party.

47.     Perhaps most telling is the evidence from the lawyers contacted by Centrelink. It was recorded by a Centrelink officer on 10 January 2005 that (at T39/150):

“…[S]poke to Barrister… I asked whether he had to attend more than once a week, he told me at best maybe once but that was it and he wouldn’t lie for him, I also rang the solicitor… he said that there was no way he had been in weekly to see him over the past 2 months and that although he didn’t want to see him get into trouble he wouldn’t lie for him…”

This is completely at odds with Mr Cheung’s evidence.

48.     I note the numerous opportunities Mr Cheung has been asked to detail his attendances.  It is now over 12 months since he was first asked for this information.  Avenues of enquiry have apparently not been pursued by him, such as endeavoring to reconstruct his attendances from his “many documents”, or asking the solicitors or the courts for dates when he attended.

49.     The evidence I am left with is his vague and inconsistent account of multiple required attendances compared to unequivocal evidence from his lawyers that his attendances were nothing of the kind.  Even allowing for other matters in which he was unrepresented, I do not accept that he had attendances of the frequency such as to prevent him from working 15 hour per week as required by his PWA.

50.     In coming to this view I note that Mr Cheung attended the Bowral Red Shield store on 22 October 2004 for only a few minutes. He gave evidence that he stayed only for a few minutes because, he claimed, he “felt sick” from the “smell of the old clothes”. Further, he told the SSAT that he phoned the Work for the Dole Co-ordinator, who said that she would try to get him another activity “but, after that, he really had no time”. I am not satisfied that he ‘really had no time’. On the evidence before me there were no circumstances not within Mr Cheung’s control that prevented him from complying with the terms of his PWA. 

Were there were any circumstances that were not reasonably foreseeable that prevented Mr Cheung from complying?

51.     Mr Cheung’s evidence was that all the court matters were on foot at the time he entered the PWA, with the possible exception of the criminal matter.  His evidence in regard to the criminal matter though was that he was already required to report daily to police.

52.     At the time of entering into the PWA and during all relevant time periods Mr Cheung was aware of his commitments. In my view, his court and legal commitments were reasonably foreseeable. He could not be said to have entered the PWA in good faith with any intention to comply with the terms of the agreement.

Were there any special circumstances beyond Mr Cheung’s control and that in those circumstances it would be unreasonable to expect him to comply with the terms of his PWA?

53.     Mr Cheung acknowledged that he had studied business and throughout the 1990s had successfully run businesses: a ladies fashion store, a bakery and a milk run.  He had managed his property investments, although, following the property dispute with his former partner, he is now ‘bankrupt’.

54.     Mr Cheung is not unintelligent and is clearly someone who has organized his affairs successfully in the past. 

55.     I accept that to be involved in litigation is time-consuming.  I also accept that it can be stressful, especially if there is a limited capacity to read court documents. However, I am doubtful that, given his studies, business undertakings and level of intelligence, Mr Cheung had the significant difficulties in reading the court documents that he claimed to have. I do not believe that reading the documents took the time he suggested it did for him.  

56.     I am not satisfied that on the evidence any special circumstances exist that were beyond Mr Cheung’s control and that it would be unreasonable in those circumstances to expect him to comply with the terms of his PWA.

57.     In summary, for the reasons given, I find that Mr Cheung’s complaints of the weather being too hot, that he was tired because he went out the night before, his vague and confusing accounts of legal matters which were not substantiated, and even attending Bowral Red Shield but leaving after a few minutes because of the smell, are poor excuses and which should not prevent him from making reasonable efforts to comply with the terms of his PWA. He did not make reasonable efforts to comply with the terms of his PWA and I find that no special circumstances exist which in the circumstances would make it unreasonable to expect him to comply with the terms of his PWA.

DECISION

58.     The decision under review is affirmed.

I certify that the preceding 58 paragraphs are a true copy of the decision and reasons for decision of Ms N. Isenberg, Member:

Signed:         A. Garcia
          ..................................................................................……………………………….

Associate

Date of Hearing  14 November 2005

Date of Decision  21 November 2005

Representative of the Applicant                 self represented      

Representative of the Respondent           Mr J. Kenny