Cooper and Secretary, Department of Family and Community Services
[2002] AATA 1217
•26 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1217
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/153
GENERAL ADMINISTRATIVE DIVISION )
Re ANTHONY JOHN COOPER
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr M Allen, Member
Date 26 November 2002
Place Perth
Decision The Tribunal: Affirms the decision of the Social Security Appeals Tribunal dated 28 March 2002
……........(sgd M Allen)............................
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – activity test – requirement to participate in a labour market program under s601(2)(a) – relationship between that requirement and requirement to enter into a Newstart Activity Agreement under s606(1)
Social Security Act 1991 ss593, 601, 604, 606
Dudzinski v Rossington [2000] FCA 1659
Re Wan and Secretary, Department of Social Security (1992) 16 AAR 514, (1992) 30 ALD 899
REASONS FOR DECISION
26 November 2002 Mr M Allen, Member
On 28 March 2002 the Social Security Appeals Tribunal (the SSAT) affirmed the decision of a delegate of the respondent (affirmed on internal review by an Authorised Review Officer) to require Mr Cooper, pursuant to section 601(2) of the Social Security Act 1991 (the Act), to participate in an Intensive Assistance (IA) program in order to satisfy the activity test in respect of the Newstart Allowance (NSA) that Mr Cooper was receiving. On 2 May 2002 Mr Cooper applied to this Tribunal for a review of the SSAT decision.
At the hearing of the application on 11 October 2002 Mr Cooper represented himself and the Secretary was represented by Mr Jones from Centrelink's Advocacy and Administrative Law Team.
The Tribunal received into evidence the documents (the T documents) lodged by the Secretary in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Oral evidence was given by Mr Cooper and the Tribunal also received into evidence the following documents:
Exhibit Document Description
A1 Letter from Mr Cooper to the SSAT dated 13 February 2002
A2Letter from Mr Cooper to the Administrative Appeals Tribunal (AAT) dated 30 July 2002
A3Letter from Mr Cooper to Centrelink dated 13 September 2002
A4Submission by Mr Cooper to the AAT
The principal facts of the case are not significantly in dispute. They can be summarised as follows and I make the following findings of fact.
(a)Mr Cooper is 47 years old and has been receiving NSA since 1998. On or about 28 November 2001 Mr Cooper was advised by letter that he had been selected to participate in a labour market program known as intensive assistance (IA) and a requirement to that effect was made of him pursuant to s601(2) of the Act. By letter dated 18 December 2001 Mr Cooper requested that he be removed from the scheme as he had participated in the scheme twice before. The Secretary treated this request as a request for reconsideration of the original decision and on or about 21 January 2002 an authorised review officer affirmed the decision that Mr Cooper must participate. Mr Cooper was advised accordingly (T8).
(b)Mr Cooper has had previous involvement with IA programs. The first involvement was between January and July 1999 and came to an end because, Mr Cooper says and the Secretary did not dispute it, Centrelink decided he had been wrongly classified as eligible for IA. The second involvement was between December 2000 and April 2001 and was terminated early because Mr Cooper was granted permission to exit the program for medical reasons. Mr Cooper has also participated in another shorter program and has undertaken two TAFE courses that were considered by Centrelink to be of benefit to him.
(c) Mr Cooper has a poor opinion of the underlying philosophy of the job network and IA system, claiming that his prior exposure to IA provided no meaningful assistance to his job prospects. In particular, he believes that he should be funded to undertake a refresher course to update his machine operator qualifications, which he believes would provide him with a much greater chance of employment. However, Mr Cooper says that neither Centrelink nor the service provider that he has been referred to will fund that course of action.
The issues
The issue for determination is whether Mr Cooper should have been required to undertake IA and whether the purported requirement is effective. At the hearing I was informed that since Mr Cooper made his application to the Tribunal there have been developments in connection with Mr Cooper's subsequent participation in the IA program and that Mr Cooper is presently appealing certain decisions taken by the Secretary's delegates concerning Mr Cooper's compliance with the IA. Both parties acknowledged that the present application concerns only the decision to require Mr Cooper's participation in IA - not any subsequent decisions made about his compliance with the requirements, which is the issue in the usual run of cases in this area.
The legislationSo far as is relevant, the following provisions of the Act are applicable to this proceeding:
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; and
(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
(c) if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and
(d) if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; 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
601 Activity 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.
601(2) A person also satisfies the activity test in respect of a period if:
(a) the Secretary is of the opinion that, throughout the period, the person:
(i) should undertake particular paid work, other than paid work that is unsuitable to be done by the person; or
(ia) should participate in an approved program of work for unemployment payment; or
(ii) should:
(A) undertake a course of vocational training; or
(B) participate in a labour market program; or
(BA) participate in a rehabilitation program; or
(C) participate in another course;
approved by the Employment Secretary which is likely to:
(D) improve the person's prospects of obtaining suitable paid work; or
(E) assist the person in seeking suitable paid work; or
601(3) If a person fails to take reasonable steps to comply, throughout a period, with a requirement of the Secretary under subsection (2), the person cannot be taken to satisfy the activity test in respect of that period in spite of any compliance of the person with subsection (1).
601(4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement between the Secretary and the person.
601(5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).
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.
604 Newstart Activity Agreements
604(1AA) Subsection (1) does not apply to a person who is qualified for a
newstart allowance only under subsection 593(1B).
604(1) Subject to subsection (1A), if a person is in receipt of a newstart allowance, the Secretary may require the person to enter into a Newstart Activity Agreement.
604(1A) A person who, under Subdivision BA, is not required to satisfy the activity test is not to be required to enter into a Newstart Activity
Agreement.
604(1B) The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:
(a) the requirement; and
(b) the places and times at which the agreement is to be negotiated.
604(1C) A Newstart Activity Agreement is a written agreement in a form approved by the Secretary and the Employment Secretary. The agreement is between the person and the Secretary.
605 Newstart Activity Agreements--requirement
605(1) Subject to this section, if a person who has made a claim for, or who is in receipt of, a newstart allowance is not a party to a Newstart Activity Agreement, the Secretary may require the person to enter into such an agreement.
605(2) Subject to this section, the Secretary may require a person who has entered into a Newstart Activity Agreement to enter into another such agreement instead of the existing one.
605(2A) Subsections (1) and (2) do not apply to a person who, under Subdivision BA, is not required to satisfy the activity test.
605(2B) Subsections (1) and (2) do not apply to a person who is qualified for a newstart allowance only under subsection 593(1B).
605(3) The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:
(a) the requirement; and
(b) the places and times at which the agreement is to be negotiated.
606 Newstart Activity Agreements--terms
606(1) A Newstart Activity Agreement with a person is to require the person to undertake one or more of the following activities approved by the Secretary:
(a) a job search;
(b) a vocational training course;
(c) training that would help in searching for work;
(d) paid work experience;
(e) measures designed to eliminate or reduce any disadvantage the person has in the labour market;
(ea) subject to section 607A, development of self-employment;
(eb) subject to section 607B, development of and/or participation in group enterprises or co-operative enterprises;
(ec) an approved program of work for unemployment payment;
(f) participation in a labour market program;
(fa) participation in a rehabilitation program;
(fb) an activity approved by the Employment Secretary under the CSP;
(g) an activity proposed by the person (such as unpaid voluntary work proposed by the person).
606(2) The terms of an agreement, which include the specification of the activities that the person is to be required to undertake, are to be approved by the Secretary.
606(3) In considering whether to approve the terms of an agreement with a person, the Secretary is to have regard to the person's capacity to comply with the proposed agreement and the person's needs.
606(4) In having regard to a person's capacity to comply with an agreement and the person's needs, the Secretary is to take into account:
(a) the person's education, experience, skills, age and physical condition; and
(b) the state of the labour market in the locality where the person resides; and
(c) the training opportunities available to the person; and
(d) any factors that the Secretary considers relevant in the circumstances.
606(5) An agreement with a person:
(a) may be varied or suspended; and
(b)if another Newstart Activity Agreement is made with the person, may be cancelled; and
(c) may be reviewed from time to time at the request of either party to the agreement; and
(d) may be cancelled by the Secretary after a review under paragraph (c).
606(6) An allowee who is a party to an agreement is to notify the Secretary of any circumstances preventing or affecting the allowee's compliance with the agreement.
Consideration of the issues
8.Mr Cooper was required to satisfy the activity test in order to qualify for NSA. The requirement made of Mr Cooper was made pursuant to s601(2) and there is no dispute that he was notified of the requirement.
9.Mr Cooper relied on various submissions and contentions contained in a number of documents totalling several dozens of pages. I mean no disrespect to those submissions by not setting them out in full in these reasons. At an early stage of the proceedings (see exhibit A2) Mr Cooper submitted that s601(2) only exists as an optional way to satisfy the activity test if the activity test comprised in s601(1) is not being satisfied. Mr Cooper submitted that because he satisfied the test in s601(1) at all times the s601(2) test could not have any application in his case.
In my opinion this is not a correct interpretation of the whole of s601. Section 601(2) provides an alternative way to satisfy the activity test for a particular period of time if it is invoked by the Secretary. It is apparent from s601(3) that s601(1) and s601(2) provide ways of satisfying the activity test that are independent of each other and that a person will not satisfy the activity test if he or she fails to take reasonable steps to comply with a requirement of the Secretary under s601(2) despite compliance with the s601(1) activity test.
A subsequent submission made by Mr Cooper was that a requirement could not be made under s 601(2) in isolation. Such a requirement could only be made if the Secretary formed an opinion under s604 of the Act to require a person to enter into a Newstart Activity Agreement (NSAA). This in turn required the Secretary to have regard to the considerations contained in s606.
In my opinion the ability of the Secretary to make a requirement under s601(2) that a person participate in a labour market programme (IA) is quite distinct from the ability of the Secretary to require a person under s604 to enter into a NSAA - one of the terms of which might be that the person must participate in a labour market programme: see s606(1)(f). The relationship between the several ways of satisfying the activity test provided by s601 and the subsequent provisions of the Act dealing with NSAAs was considered by Drummond J in Dudzinski v Rossington [2000] FCA 1659 . In that case the applicant had argued the reverse of Mr Cooper's submission ie that the Secretary's power to require a person to enter into a NSAA containing particular terms is conditional upon the Secretary forming an opinion under s602(2). Drummond J commented: [2000] FCA 1659 at paragraph 17
"17 It can be seen that, contrary to the allegation which is one basis for the prohibition sought in par 2.3 of the application, there is no link between s 601 and, in particular, s 601(2), and the provisions of the Act dealing with the separate criterion for qualification for newstart allowance relating to the Secretary's requirement of a particular applicant to enter into a Newstart Activity Agreement containing particular terms. That is, the applicants' claim for prohibition is misconceived in so far as it is based on the mistaken belief that the Secretary's powers to require a person to enter into a Newstart Activity Agreement containing particular terms are conditional upon the Secretary forming an opinion of the kind referred to in s 601(2)."
The applicant's submission on this point cannot, therefore, be accepted.
Mr Cooper further submitted that the formation of the Secretary's opinion under s601(2) to require him to participate in IA must be supported by way of a consideration of the types of matters concerning the unemployed person as are set out in s606 (such as s606(3) and s606(4)) and that, generally, the formation of the Secretary's opinion must be reviewable and justifiable as being likely to improve the person's prospects of obtaining suitable paid work or assist the person in seeking such work. Mr Cooper contended that his history of prior involvement in IA and the shortcomings that he perceived in the Job Network system all meant that an opinion could not reasonably be formed that he would benefit from further IA involvement. He thought that the SSAT's comment that the likelihood of his employment prospects improving from IA "…may not be great…" (T2 at paragraph 20) supported this view.
In relation to the reviewability of the Secretary's formation of the s601(2) opinion, Mr Cooper referred to the following passage in the 1992 decision of Deputy President Johnston in this Tribunal in Re Wan and Secretary, Department of Social Security (1992) 16 AAR 514, (1992) 30 ALD 899:
31. To satisfy the activity test in accordance with s.601(2)(a) the course which the respondent requires a person to undertake must also be one which is likely to: "(D) improve the person's prospects of obtaining suitable paid work; or (E) assist the person in seeking suitable paid work." Unless the legislature intended this aspect of s.601(2)(a) to give rise to an incontestable state of affairs, ie. that the individual required to undertake a course is not meant to be in a position to question, either judicially or administratively, whether the Secretary's opinion was properly formulated, (something which the Tribunal does not accept), there should be something in the written record to indicate the basis on which the respondent's delegate was of the view that the particular course could either improve the person's prospects of obtaining suitable paid work or would assist the person to seek the same.
One can only agree with the sentiments expressed in the passage cited above in so far as they refer to the ability of this Tribunal to review the Secretary's opinion and the need for the Secretary to be able to point to material and circumstances that support the opinion formed about the benefits likely to accrue to an IA participant. However, it must be remembered that the Wan decision was made many years before the introduction of the Job Network system and, in particular, the Jobseeker Classification Instrument (the JSCI) in 1998. The JSCI is an instrument devised by the Department of Employment and Workplace Relations as a means of identifying those unemployed people who are considered to be at a particular disadvantage in relation to seeking and gaining employment. It has been applied to all new job seekers registering with Centrelink since February 1998 (T7 at folio 41). The instrument assesses the person by reference to 18 factors, including such things as age, unemployment duration, gender, access to a telephone, education and geographic location to name just a few. Mr Cooper submitted that the JSCI was not an appropriate instrument to assess eligibility for IA because most of the factors it took into account would not be in any way addressed or altered by IA – such as gender, ex-offender status and country of birth, amongst others.
It seems to me that Mr Cooper misunderstands the point of the JSCI and IA. The instrument is designed to identify those who can be considered to be disadvantaged because of certain factors. Obviously, IA as a program cannot alter many personal factors. It does not attempt to do so. What it is designed to do is to assist a person to look for and, hopefully, gain suitable paid employment despite the disadvantages that the person is perceived to have.
Two relevant factors can be identified in considering whether Mr Cooper's circumstances at the relevant time (and in the light of the evidence and material before the Tribunal) were such as to make a decision that Mr Cooper was likely to benefit from IA the correct or preferable one. First, when in the latter part of 2001 Mr Cooper was assessed by a Centrelink officer using the JSCI, he received a score of 34. This placed him in the highest priority category of person disadvantaged in relation to employment prospects. Second, despite Mr Cooper's poor opinion of IA and his pessimism about the likelihood of it benefiting him, the fact was that he had not at the relevant time completed an IA program. His two previous involvements had both come to an early end for the reasons mentioned in paragraph 4(b) above. In those circumstances I consider that there was then, and is now, an entirely reasonable basis for the formation of an opinion that IA, being a program approved by the Employment Secretary (T7 at folio 42) for that purpose, was likely to improve Mr Cooper's ability to seek and obtain suitable paid employment.
The SSAT concluded its decision as follows (T2, paragraph 20):
"…This program is one that is approved by the Employment Secretary and is deemed to be likely to improve Mr Cooper's prospects of obtaining suitable paid work. Although the likelihood may not be great, the [SSAT] was unable to conclude that attendance at intensive assistance was not likely to improve Mr Cooper's prospects of obtaining suitable paid work or was not likely to assist him in seeking suitable paid work."
For the reasons set out above, I would express my conclusion in more positive terms, namely that a reasonable basis existed for an opinion that Mr Cooper was likely to benefit (in terms of seeking and obtaining suitable paid employment) from participation in IA and that was the correct or preferable decision.
Despite the differences of expression, my decision is that I affirm the SSAT's decision which, in turn, affirmed the original decision.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member.
Signed: ......……........................................
AssociateDate/s of Hearing 11 October 2002
Date of Decision 26 November 2002
Counsel for the Applicant In person
Counsel for the Respondent Mr A Jones
Solicitor for the Respondent Advocacy & Admin Law Team, Centrelink
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