Clark and Secretary, Department of Family and Community Services - [2001] AATA 328

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 328

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/415

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PETER CLARK
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Date2 April 2001
PlaceAdelaide

Decision For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.

(Signed)
W J F PURCELL
Senior Member
CATCHWORDS
SOCIAL SECURITY- Newstart allowance – requirement to contact employers in accordance with Jobseeker Diary - whether an activity test breach rate reduction period was properly applied.

Social Security Act 1991 ss601, 624

ORAL REASONS FOR DECISION

2 April 2001 Miss WJF Purcell (Senior Member)

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 12 October 2000, which affirmed the decision of an Authorised Review Officer of 11 September 2000, to apply an activity test breach rate reduction period of 18 per cent on the applicant's Newstart Allowance payments, for a period of 26 weeks from 14 July 2000 to 11 January 2001.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the respondent (the Department). The applicant appeared on his own behalf and gave oral evidence. Mr Underwood represented the respondent (the Department) and called Mr Lausevic, a counter officer at the Glenelg Branch of Centrelink, who gave oral evidence.
The applicant, who was born on 14 March 1965, had been in receipt of Newstart Allowance, or its equivalent, for some nine years before he travelled overseas in March 2000. He applied on his return for Newstart Allowance at the Glenelg office of Centrelink on 8 May 2000. He was issued a Jobseeker Diary on that day, which required lodgement with Centrelink on 14 July 2000. By letter dated 9 May 2000, the applicant was informed by the Department that:
"You were recently issued a Jobseeker Diary.
You need to start filling it out as soon as your payments commence.
You should approach at least 10 employers each fortnight and record these in your Jobseeker Diary." (T4/20)

Ten weeks later, on 14 July 2000, the applicant lodged his "Application for payment of Newstart Allowance", and stapled the Jobseeker Diary to the application form. An officer noted that no details of any employers had been filled in, and the diary was blank. A delegate determined that the applicant's Newstart Allowance should be suspended, and imposed an activity test breach "due to work effort". On 18 July 2000, the applicant requested a review of the decision and a file note recording the conversation between the delegate and the applicant reads in part, as follows:
"Diary was totally empty of any jobs. Advised cust that he was supposed to apply for jobs and detail in diary. He advised that he had looked for work but couldn't remember where. I told him that the diary was there for that purpose. He then said that wasn't the diary that he had lodged, someone must have switched it on him after he had lodged it, as he has had some probs before with breaches and the like. Someone here is obviously out to get him. I advised that this is not the case, that his diary was blank and it appeared that he had not looked for work. I asked him if he had any other records of where he had looked, or if he had another reason for not looking. He replied that he was more or less like Carmen Lawrence, and he couldn't remember where he had looked…" (T9/59).

On 11 September 2000, an Authorised Review Officer affirmed the decision and in a letter to the applicant on the same date stated, in part:
"…when you returned your diary in July you did not have any contacts with employers noted in the diary. You should have had 50 contacts in the diary whereas you had none. As well, you have not shown any alternative evidence that you maintained the required level of employer contact during this period of time in order to satisfy the activity test or that you were not able to seek work in this period. You have argued that the diary you completed and lodged was not the diary that is with the form you lodged on 14 July 2000 and that the diaries were swapped by a Centrelink staff member. I cannot agree that this is what happened.
…
I am satisfied that you were given sufficient notice of the requirement to satisfy the activity test, the significance of the diary and the implications of not satisfying the activity test at the time you claimed NSA" (T14/66).
On 12 October 2000 the decision of the Authorised Review Officer was affirmed by the SSAT and on 25 October 2000 the applicant applied to this Tribunal for review of that decision.
The applicant maintains that he lodged a completed Diary at Edwardstown on 14 July 2000; that the Department has been harassing him, and that an officer must have switched the diaries or substituted blank pages for those he had completed. He insists that he contacted the required number of employers, but cannot recall who they were.
The Department contends that the applicant failed to satisfy the activity test by not approaching at least ten employers per fortnight,and that the activity test breach rate reduction period was validly imposed. The Jobseeker Diary is a convenient means by which a person's job seeking efforts can be recorded and shown to be to the Department's satisfaction. The Diary contains warnings as to the consequences of the failure to complete it and it is not an onerous task to approach one employer per working day. In addition, the Department maintains that the applicant's Diary was not switched with another Diary, either accidentally or deliberately. It was attached to the fortnightly form, which would also have gone missing, had the Diary been lost.
The applicant said in evidence that before he travelled overseas for five weeks, he made inquiries of the Department by telephone, and was informed that if his absence was less than 13 weeks, he would not be required to lodge a fresh application. The fact that he was required to lodge a fresh application was an aspect of the harassment to which he has been subjected. He gave evidence that he has been harassed by Departmental officers at the Edwardstown branch of Centrelink since he inherited $52,000 in March 2000. He quoted three incidents which he maintains were harassment, including an incident where he sat on a chair in the waiting area and when he walked away he found that the seat of his pants were wet, and he says someone deliberately put water on the seat. He was unable to name any of the officers who have allegedly harassed him.
The Department called Mr Lausevic, and I accept him as a witness of truth. He said that seeing the applicant in the Hearing Room reminded him of the interview when he issued the diary to the applicant on 8 May 2000 at Glenelg. He said also that he would have advised the applicant that he was required to contact ten employers per fortnight and to document those contacts in the Diary. He would have also given information about penalties that would apply if the diary was not returned or fully completed. He said also that any absence overseas of a person in receipt of Newstart Allowance, even if the absence was for a number of days, required lodgment of a fresh application before benefits are payable.
Section 601(1) of the Social Security Act 1991 (the Act) requires a person claiming Newstart Allowance to satisfy the activity test, by showing they are actively seeking and willing to undertake paid work and as far as is relevant, for the purposes of this review, provides:
"601 Activity test
(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, other than paid work that is unsuitable to be undertaken by the person.
…"
When the applicant failed to comply with the requirements of s601 of the Act, the activity test breach rate reduction period was applied pursuant to s624 of the Act, which so far as is relevant to this review, provides:
"624 Activity test penalties for failure to satisfy activity test
624(1)Subject to subsection (2), if a person fails to satisfy the activity test (the failure), a newstart allowance is not payable to the person.
624(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.
624 (2)A person is not subject to the activity test penalty period under subsection (1) at any time during which the person:
(a) is undertaking:
(i)formal vocational training in a labour market program approved by the Employment Secretary; or
(ia)an activity approved by the Employment Secretary under the CSP; or
(ii)a rehabilitation program approved by the Employment Secretary; and
(b)has been exempted from the application of that subsection by the Secretary.
Note: For "Employment Secretary" see section 23."
I do not accept the applicant's evidence that he approached a total of fifty employers as required in the 10-week period, and entered their names in the Diary. The Diary was produced by the Department. It is a booklet with a firm cover, and stapled in the centre of some 15 pages with three staples. I am satisfied that it has not been tampered with, and I accept Mr Lausevic's evidence that the writing and notations on the preamble to the Diary itself were completed by him on 8 May 2000 at Glenelg. I am satisfied that the Diary produced at the Hearing is the Diary handed to the applicant by Mr Lausevic.
In my view the applicant does not satisfy the requirements of the legislation in relation to the activity test, and I am satisfied on the evidence that he had not contacted the required number of employers he maintained in evidence he had contacted.
For these reasons the Tribunal affirms the decision under review.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  29/3/2001 and 2/4/2001
Date of Decision  2/4/2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Underwood
Solicitor for the Respondent    Centrelink