Croker and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 682

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 682

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0297

GENERAL ADMINISTRATIVE DIVISION		)
Re		CLAYTON ROBERT CROKER

Applicant

And SECRETARTY DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date21 July 2008

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, the Decision under review is AFFIRMED.

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

M D Allen
  Senior Member

CATCHWORDS

NEWSTART ALLOWANCE – review of decision by social security appeals tribunal affirming prior determination by an authorised review officer requiring applicant to enter into newstart activity agreement – person receiving newstart allowance may be required to enter into newstart activity agreement – applicant in receipt of newstart allowance – applicant capable of engaging in some work – applicant required to enter into newstart activity agreement – decision under review affirmed

LEGISLATION

Social Security Act 1991 subsections 605(1), 602(2), 606(4) and Schedule 1B

Administrative Appeals Tribunal Act 1975 section 37

REASONS FOR DECISION

21 July 2008  Senior Member M D Allen 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         [sgd]  Mwela Kapapa         
           .................................................

Associate

Date of Hearing  21 July 2008

Date of Decision  21 July 2008

Solicitor for the Applicant            Self-represented  

Solicitor for the Respondent       Centrelink Legal Services Branch

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [10.49 am]

MR ALLEN: What I will do, I will just say this at the moment that pursuant to an application lodged on 22 January 2008, the Applicant sought review of a decision by the Social Security Appeals Tribunal, affirming a prior determination by an Authorised Review Officer on 8 November 2007. The decision of the Authorised Review Officer required the Applicant to enter into a Newstart Activity Agreement with MaxNetwork Employment. Subsection (1) of section 605 of the Social Security Act 1991, as amended, reads:

Subject to this section, the Secretary may require a person who is not a party to a Newstart Activity Agreement to enter into such an agreement if:

(a) the person is receiving, or has made a claim for, a newstart allowance.

It is not disputed in these proceedings that the Applicant has made a claim for Newstart Allowance. Part of the confusion, or difficulties in the matter, is that the Applicant was, in between the period from 1994 to 7 July 2006, in receipt of Disability Support Pension. In addition, the Applicant still has an impairment calculated at 20 percentage points pursuant to schedule 1B of the Social Security Act 1991. It has been found, however, that irrespective of impairment, he is capable of engaging in some employment. The degree to which he can engage in employment is, perhaps, a moot point, and I note that a Job Capacity Assessment Report, which was prepared in March 2007, referred to a short-term medical condition limiting work capacity.

It also said that the Applicant then had a current capacity for work at 15 to 22 hours per week. Notwithstanding these matters, it is quite clear that, pursuant to subsection (1) of section 605 Social Security Act 1991, the Secretary may require the Applicant to enter into a Newstart Activity Agreement. Subsection (4) of section 606 of the Social Security Act 1991 refers to matters the Secretary is to take into account in having regard to a person’s capacity to comply with a Newstart Activity Agreement. Again, there may be some dispute as to the terms of the Activity Agreement the Applicant entered into with MaxNetwork Employment, and a copy of that agreement is at document T8 of the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

The difficulty in this matter is that the tribunal can only review decisions of the Social Security Appeals Tribunal. As set out in that Decision, the question before the Social Security Appeals Tribunal was the decision on 8 November 2007 to require the Applicant to enter into the Newstart Agreement. The question regarding the terms of that agreement, and whether it was a suitable agreement for the Applicant, have never been considered either by an Authorised Review Officer or by the Social Security Appeals Tribunal, and, consequently, are not before me today. The only question before me is whether the Applicant could be required to enter into the Newstart Activity Agreement, and what is abundantly clear from subsection (6) section 605 of the Social Security Act 1991 is that he could be so required. In these circumstances, therefore, the Decision under Review is affirmed. I think you understand all that, don’t you?

MR CROKER:   I do, Member, thank you. 

MATTER ADJOURNED at 10.55 am INDEFINITELY