Croker and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 90
•29 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 90
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4034
GENERAL ADMINISTRATIVE DIVISION ) Re CLAYTON CROKER Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms R Hunt, Senior Member Date of Decision 18 December 2007
Date of Written Reasons 29 January 2008
Place Sydney
Decision For the reasons given orally at the hearing of this matter the Tribunal affirms the decision of the Social Security Appeals Tribunal of 8 August 2007. ...................[Sgd]............................
Ms R Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Education Entry Payment – Decision affirmed.
Social Security Act 1991, s 665U
REASONS FOR DECISION
29 January 2008 Ms R Hunt, Senior Member 1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the Senior Member’s reasons were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the tribunal to furnish to him a 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 decision.
3. The transcript is annexed and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.
I certify that the 3 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: [Talaishia Collis]
AssociateDate/s of Hearing 18 December 2007
Date of Decision 18 December 2007
Date of Written Reasons 29 January 2008
Solicitor for the Applicant Self-represented applicantSolicitor for the Respondent Mr Ken Bullock – Centrelink Legal Services Branch
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 10, MLC Court, 15 Adelaide St BRISBANE QLD 4000
PO Box 13038 George St Post Shop BRISBANE QLD 4003
Tel:1300 308 420 Fax:(07) 3503-1199
Email: [email protected] Website:TRANSCRIPT OF PROCEEDINGS
O/N 71853
ADMINISTRATIVE
APPEALS TRIBUNAL
MS R. HUNT, Senior Member
No. 2007/4034
CROKER
and
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
SYDNEY
10.06 AM, TUESDAY, 18 DECEMBER 2007
MR C. CROKER appears in person
MR K. BULLOCK appears for the respondent
MS HUNT: Mr Croker, would you like to make an opening statement or would you like Mr Bullock to summarise what is at issue in these claims?
MR CROKER: Member, I probably would just like to firstly make a first comment in regard to the matter which is in regard to aliases.
MS HUNT: Right.
MR CROKER: Mr Bullock has informed me that Centrelink have now agreed to delete all aliases that have been, that have actually, the AKAs which have appeared on my record and Mr Bullock informs me that will be done in the near future and I say that matter is closed.
MS HUNT: Is that correct, Mr Bullock?
MR BULLOCK: Yes it is, Senior Member. Some notices were put on up there by a very creative review officer who thought that Mr Croker might use them.
MS HUNT: Might use them?
MR BULLOCK: Well, unfortunately ‑ ‑ ‑
MS HUNT: That’s a bit surprising.
MR BULLOCK: Yes, when we dug deep but they are going to be removed today and I have just informed Mr Croker.
MS HUNT: So they weren’t otherwise known as names at all?
MR BULLOCK: No.
MS HUNT: All right. Well, thank you very much for sorting that out, Mr Bullock. It’s good news for you, Mr Croker?
MR CROKER: Yes, I think it might clear up a few issues.
MS HUNT: All right.
MR CROKER: The second matter is in regards to ‑ ‑ ‑
MS HUNT: Let me just get the – that was number 2, I mean 3873 wasn’t it?
MR CROKER: Yes.
MS HUNT: So that one is solved. The other matter is 4034 of 2007 and that’s to do with the payment of an allowance, an education type allowance.
MR CROKER: Yes.
MS HUNT: I forget the full name of it. What’s the name of it again?
MR BULLOCK: Education entry payment.
MS HUNT: Education entry payment. So did you want to make an opening statement about that, Mr Croker?
MR CROKER: I would like just to set out some details and the position I’m in at the moment or think I’m in. In approximately July last year my DSP was cancelled by Centrelink and I received a Newstart allowance.
MS HUNT: DSP was cancelled.
MR CROKER: After approximately 12 years.
MS HUNT: When did that happen?
MR CROKER: That was early July.
MS HUNT: Last year, 2006.
MR CROKER: Yes.
MS HUNT: Okay. And you started getting Newstart instead?
MR CROKER: Yes.
MS HUNT: Is that right, Mr Bullock, would you agree with that?
MR BULLOCK: Yes.
MR CROKER: From July onwards I was engaged in a, it was a certificate 4 in web design at Sydney Institute of Technology, TAFE, and also I was studying modules of law with Curtin University by correspondence.
MS HUNT: What were you studying at Curtin?
MR CROKER: Modules of law. It’s not an LOB, it’s actually approximately about 20 individual modules of ‑ ‑ ‑
MS HUNT: Curtin. Where is that based?
MR CROKER: That’s in Western Australia but it’s done through open universities.
MS HUNT: So it’s a sort of correspondence course, is it?
MR CROKER: Yes, it’s a lot of it is on line but you do sometimes get paper work.
MS HUNT: Okay.
MR CROKER: I was approximately doing 10 hours for that six month period till Christmas with Curtin and approximately 10 hours or less with TAFE. Curtin University studies don’t come with a break, they run at three months intervals and they continually roll over and I enrolled in Curtin again for the year 2007 and studied from end of November through to January and every three months now. Actually I do have the exact dates here. On the T documents these dates ‑ ‑ ‑
MS HUNT: Just a minute. You are more familiar with it, your matter of course than I am. So can you tell me what document you are looking at?
MR CROKER: It’s T document, it’s actually marked as page 37, it’s T document 6. And this is a copy of the enrolment form that is issued by TAFE. I don’t have the original on me and the photo quality is very poor but at the bottom on the right hand side you can see 37 and you’ll see 29/1/2007.
MS HUNT: I can see, yes I think that’s right. It’s clearer down the bottom than it is one step up, isn’t it? I was looking at the one a bit, just below the 37 but then it’s clearer down near the very bottom of the page.
MR CROKER: Yes. And if you look to the left hand corner there’s a box and what actually this box and its writing which has been cut off by the photocopying but in that box is actually a 30 and that represents the hours of attendance in that course. The next page, and that is still T6 on page 38, indicates the delivery of the full-time course and it gives you the timetable Monday/Thursday, Wednesday/Thursday/Friday; and also morning and afternoon classes; the time they start and finish; the room allocation, and also the subject number.
On the 29th I enrolled in this course and this course is run in two modes. The first mode is full-time which is 30 hours a week, and the second mode is a part time night – a part-time attendance which is – I’m not quite sure but I would guess at about 15 hours a week, and is usually run during the evenings. When I enrolled in this course I enrolled as a full time student and on the same day, it actually was on 12 February I attended Darlinghurst and actually handed this document along with the timetable to Centrelink and also a request for the education entry payment.
MS HUNT: So that stamp on page 38 are you saying that’s a Centrelink stamp?
MR CROKER: Yes, the Centrelink dark ‑ ‑ ‑
MS HUNT: You can’t tell, can you, from ‑ ‑ ‑
MR CROKER: The one just here is quite distinct.
MS HUNT: I can see, which page is that?
MR CROKER: That’s page 37 and also there’s a stamp on the top right hand corner of 38.
MS HUNT: I see, yes it does look the same, doesn’t it, but just got the top part missing, okay.
MR CROKER: I got a phone call from Darlinghurst shortly after these documents were actually handed to Darlinghurst and they said that I am enrolled in a full time course and as I am participating in a full time course that my Newstart allowance will be terminated and I made an appointment to attend Darlinghurst and discuss the issues with them about my attendance in the course. I explained to Darlinghurst that the course I was doing which this enrolment form is was actually the Diploma of Work Development and below that was certificate 4 in web design which I previously completed. The Diploma is actually made up of certificates and a progressive gradual step into the diploma.
Centrelink was quite I’ve been studying on this course and doing it at a reduced rate and I explained to Centrelink Darlinghurst that I would be attending the course approximately at 50 per cent capacity on attendance. There was an application to Centrelink and also in the agreement that was signed which is called an activity agreement that I would attend the course and that Centrelink was actually knowledgeable of it. The activity agreement is on page 31 and it says at the bottom of 31:
I will start my education training placement by 20/1/2007.
There is also a request for information which actually was the enrolment details of my course which were furnished to Darlinghurst. Also Darlinghurst received from me an application for the payment of the education entry payment. The application was refused on the grounds that I have not been acknowledged as a full time student and that that being the case I was not eligible for the education entry payment.
I made submissions to Darlinghurst and also to the Social Security Appeals Tribunal that I did receive a phone call from Darlinghurst informing me that my Newstart agreement was terminated on the grounds that I was classed as full time student and that the, well the actual Acts of Centrelink had put me in a position where I was classed as a full time student and should have been eligible to the payment of the education entry payment and the relevant legislation that was affecting the payment of the education entry payment is – I don’t have the legislation with me but I do have some submissions that detail some of the what I think are ‑ ‑ ‑
MS HUNT: If you look at the Department’s facts and contentions document I think it deals with the legislation in that unless you disagree with it and you wanted to draw my attention to some other legislation. Do you have that document?
MR CROKER: Yes, I do.
MS HUNT: It refers to – down the bottom I can see paragraph 9 says, “The AAT,” which is not correct, that’s the SSAT, and then over the page it refers to section 665U and sets it out. Is that the section you were going to refer to?
MR CROKER: Yes, it is. Now, it’s my understanding, that I have to be in agreement with all sections and subsections of this section of the Act to actually be a recipient of the education entry payment and my submissions were, at the SSAT, that I was and I was classed as a full-time student.
MS HUNT: Who classed you; the SSAT?
MR CROKER: Well, the SSATs decision is one that’s basically saying that I have never been recognised as a full-time student in the educational ‑ ‑ ‑
MS HUNT: Yes, that’s what I thought. I’m a bit confused about what your actual argument is, whether you’re full-time or part-time and whether you – I’m not clear that you’ve lost the Newstart Allowance or not.
MR CROKER: Well, I didn’t actually lose the allowance. After I was telephone called and was told by Darlinghurst that my Newstart Allowance would be terminated because I was classed as a full-time student, I approached them and said I would do it at a reduced hours. When I explained that position, the response was, You’re a part-time student, it’s none of our business what you do in your spare time or time which could, if employment was gained, that would overrule the time spent in ‑ ‑ ‑
MS HUNT: Yes, so you actually do still get Newstart, do you?
MR CROKER: Yes. I’m still receiving the benefit but the negotiations was – eventually I told them that I wouldn’t be going to the course for the full 30 hours, it would be probably 50 per cent or less, and with that, their attitude was that now it was a part-time course so they’ve re-allocated me from a full-time student down to a part-time student and Centrelink had no bearing on what I did with my ‑ ‑ ‑
MS HUNT: So did you actually lose any of your Newstart Allowance?
MR CROKER: No, there was no penalty and there was – well, I suppose there was a penalty in that I didn’t receive the education entry payment, but my argument is that there seems to be no record of Centrelink Darlinghurst contacting me in the file that I have in front of me or the T documents, in regards to my cancellation of Newstart on the grounds that I was a full-time student. There is further argument and that is in early February, the agreement which I signed with Centrelink was apparently, not to my knowledge, suspended.
MS HUNT: What was suspended?
MR CROKER: The activity agreement. You have to sign an activity agreement with Centrelink to do activities, to say you’re actually doing something.
MS HUNT: So why do you say the activity agreement was suspended?
MR CROKER: My understanding is that it was wrongfully negotiated and that suspension of the activity agreement was for a period from January to July – I mean from February to July – and during that period of time I had no obligation to do any of the activities set out in the agreement on page 31 and 32, but I still attended university and I still attended college and I still made work – attempts of looking for employment, but there’s no real indication from the secretary that they have looked at the matter and definitely said that that agreement was terminated.
I was talking to Mr Bullock earlier about a Job Network which I attended recently and they were actually an independent supplier of job searching and job placement services and I was informed and actually shown that they actually have access to my records on file and they still have the agreement which was signed on the 8th of the 12th, 2006.
MS HUNT: Is that this one that’s ‑ ‑ ‑
MR CROKER: Page 31 and 32. They still have that on screen and they said – and I explained to them the position that I was in and I explained to them, no, I was in university again and that I re-enrolled in the diploma to have the completion this year – next year – and I was informed that it would be easier just to update the records than print out another agreement. So my understanding is that they still have the agreement on foot on their records but ‑ ‑ ‑
MS HUNT: Mr Croker, I think I’ve got a good idea of the overall picture now. I haven’t actually had you sworn in so we’ll do that next and then I would like to hand over to Mr Bullock and he can explain where the Department has some disagreement with your situation and I’ll get him to ask you some questions so that he can address the Department’s concerns and I can listen to your evidence in response to Mr Bullock’s questions. Is that all right with you?
MR CROKER: Certainly.
<CLAYTON CROKER, SWORN [10.25 am]
MS HUNT: Mr Bullock, are you ready to ask some questions or do you want to just ‑ ‑ ‑
MR BULLOCK: Yes, there are a couple of points I would like to clarify with Mr Croker.
<CROSS-EXAMINATION BY MR BULLOCK [10.25 am]
MR BULLOCK: When you enrolled for the course you enrolled as a full-time student but according to the SSAT at paragraph 8 of their statement they said:
Although he enrolled as a full time student and still now continues to remain so enrolled, he never intended to and never did the full-time study load.
?‑‑‑That’s correct.
Yes, so it was never your intention to do the full-time study load?‑‑‑Well, I would have liked to attend the first week which was just short classes, which were introductory classes, to work out whether it would – probably be the best path for me to take because I’m under disability, but at no time had I actually attended college before a decision was made by Centrelink so there was no class time before Centrelink made the decision not to pay.
But it was your intention just to study part-time?‑‑‑Well, I did have thoughts to actually attempt to do it full-time because I was getting a bit of a hurry up from Centrelink but under disability I probably wouldn't have completed it and also there is financial issue without the education entry payment.
The other issue was you said that the activity agreement was suspended between February and June?‑‑‑Yes.
Okay. But there is, senior member, on page 41 of the T documents, there’s a document recording there, in essence, if you just go down to the first sentence that says JCA review, it’s about ‑ ‑ ‑
MS HUNT: Just a second. Would you give Mr Croker his copy, please.
I think you might have the same copy there; is that right, Mr Croker?‑‑‑Yes. The pile on the right might be it, underneath the large – yes. Thank you.
MR BULLOCK: Okay. Just about two-thirds of the way down the page you see the sentence which starts, “JCA review was completed”?‑‑‑Yes.
And job capacity assessor still considers CRS –
which is the Commonwealth Rehabilitation Service –
is the appropriate participation activity for Mr Croker. This was referred back to the assessor but the decision remained unchanged. Final assessment also indicated that Mr Croker has a temporary incapacity to participate until 12 June and Mr Croker will need to negotiate a new activity agreement .....
Is that the suspension you’re referring to?‑‑‑Yes. I’ve actually – I do apologise. I didn’t intentionally lead the tribunal astray but it was only until the 12th until the 12th of the 6th, I think – 12th of the 7th which the suspension was. I really thought it was actually 2 July but it was ‑ ‑ ‑
That’s okay, but in other words, what they’ve said is that because of your incapacity, the reason that you’re – you were temporarily incapacitated so you didn’t have to participate until 12 June?‑‑‑Yes.
That’s what that’s saying, so even though the activity agreement was still in force, I would say it’s not actually suspended, other than you don’t have to – you couldn’t do any of those things that were required of you because of your incapacity?‑‑‑I suppose that might have been one way to look at it but I have one of the documents that actually stated it was wrongfully negotiated.
Unfortunately I’ve not seen anything?‑‑‑I think I have made reference to it in the past.
I’ve not seen anything.
MS HUNT: I don’t really understand that. Are you saying, Mr Bullock, that Mr Croker didn’t have to meet the usual requirements?
MR BULLOCK: That’s right, because of his medical condition, which does, from time to time, cause him difficulty and apparently when he did job capacity assessment they felt that at that particular time during that period that he didn’t need to.
MS HUNT: Well, I think that that, the descriptive word “suspended” probably covers that. If it’s not cancelled, it’s just sort of held in abeyance and he doesn’t have to meet it. How else would you describe it?
MR BULLOCK: Well, I think and I thought, as you just referred to, I thought Mr Croker was indicating that it was – what was the word you used – wasn’t properly negotiated.
THE WITNESS: Wrongfully negotiated.
MS HUNT: I see, yes.
MR BULLOCK: But I have no knowledge of that and no record of that.
MS HUNT: Yes. That’s very different from saying it’s suspended. So which did you really mean, because I thought you said “suspended” as well?‑‑‑I did but I have actually seen one document, through the files that have been actually given to me, that actually has the words “wrongfully suspended” written on them and unfortunately I can’t see them here today and I didn’t think it would be really of great – of that much great importance, but ‑ ‑ ‑
Well, which are you saying; are you saying it was suspended or are you saying it was wrong in the first place?‑‑‑Well, in my opinion I would say that it should have been – it more than likely was terminated after it was signed. I would say that it’s never
actually really eventuated as a binding legal document on the grounds that it was wrongfully negotiated on the 8th of the 12th.
And why do you say it was wrongfully negotiated?‑‑‑The reasons – my opinion is that the document wasn’t complete in that not all educational details were actually entered, there was more information still pending.
Well, the record that Mr Bullock just drew our attention to just says it was suspended, which meant you didn’t have to meet the conditions, as I understand it; is that right?
MR BULLOCK: Yes, that’s correct.
MS HUNT: So that seems to be to your advantage if we take that view of it, I would have thought?‑‑‑Well, I’m probably in the same position on the grounds that there was no compulsion to seek employment, which would be the overriding factor against continuing educational goals.
All right. Well, Mr Bullocks, I’ll let you carry on.
MR BULLOCK: Thank you. Be that as it may, senior member, the education entry payment is a one-off payment made annually to people who are going to study full‑time. It is usually for people such as single pensioners and other people or people who have decided that they need to study and actually to try and get some employment. It is directed at those people. One of the qualifications as pointed out in 665U is that the person has to receive Newstart for the previous 12 months and in a rather inverted way it says that – it seems to be a bit of a contradiction but it says that in order to qualify, then you must cease to be qualified for Newstart Allowance, because they’re taking part in a course of education.
That means that it’s directed at those people who may qualify for another payment which is related to their studies such as a single pensioner. I guess it was really intended to help them with their fees and to buy books, etcetera. In Mr Croker’s case, he has said that he didn’t and wasn’t intending to study full-time. When they pointed out or when they rang him and said that, Well, if you are going to study full‑time then you can’t qualify for a Newstart Allowance because Newstart Allowance is for people who are looking for work, and that was the phone call he received. There are some exceptions to where the Job Network member or PAGES, the people who supply the – provide the employment service will approve a short course as part of an activity agreement but the – can I direct you to ‑ ‑ ‑
MS HUNT: Were you going to just direct me to a T document?
MR BULLOCK: No, no, in the statement for ‑ ‑ ‑
MS HUNT: I just wondered if you should ask - at this stage you should ask a couple of questions about approval. We’ve dealt with “whether”. Mr Croker has told the tribunal – as I understand it you’ve given evidence or told us informally at the
beginning that you never intended to study this course full time, is that right?‑‑‑Yes, as I said earlier, I – maybe the first week just to get an outline of the module so I could find which ones would be more appropriate would probably – I did have thoughts of it but I really thought – I knew in the back of my mind that I wouldn’t be able to keep pace because I usually wear a Velcro and I think it’s like – I’m not – neothane straps that actually support my wrists.
So you have a wrist problem?‑‑‑Well, I have RSI in my hands and I can’t continually type and some of the classes are a bit intensive typing.
So it was a bit ambitious to intend to do it full time?‑‑‑I think so.
But then what about approval? Because I can see that this section that the department’s facts and contentions direct us to which you’ve agreed is the section you were talking about before, 665U?‑‑‑I don’t have a copy of those.
It says something about an approved course as well. So I’d like to know what you say about whether you investigated it was an approved course?‑‑‑My finding was that all computer courses were approved courses and that approval from the course actually had to come from the secretary and not Centrelink and there’s been no confirmation that the course is an approved course or not to date that I’m aware of.
Well, Mr Bullock, could you ask some questions about that and anything else that might be relevant to the decision before enlarging on it?
MR BULLOCK: So you made inquiries with Centrelink about short course approval?‑‑‑I did have some communications with them but the officer to my reflection explained to me that I needed short course approval and the officer made the decision saying that he hadn’t approved it but I’ve found out since then that it’s actually the secretary that has to make the decision. Whether that is delegated or is actually a delegation to Centrelink I’m not aware of but apparently he did have to seek approval but he said he disapproved and it would go on appeal.
When you negotiated the activity agreement originally and that your education was part of it what did – who was it – PAGES, the Providers of Australian Government Employment Services – what did they have to say about your education and training placement?‑‑‑Really there wasn’t a great deal of conversation about it. It was – I think I was in a mode where I was doing it while I was on the pension and had been doing it for several years while I was on the pension and it was just really assisting me as the best it could to actually attempt to get back into the workplace. It was an ongoing process where I was attending college. I’ve done other things at college – at TAFE, the institute. It was something they were aware of at all periods of time.
But in relation to the other activities did they consider that to be a large part of your activities?‑‑‑Well, what they do – well, what actually did happen on the first agreement which was signed earlier is that because I was attending TAFE and also attending university I would not have to do the Job Network program.
But there are activities in here like undertake to job search contacts?‑‑‑They’re actually produced on the application for Newstart payment and they’re filled in.
Yes, they’re part of the activity as well and then there are also some job search contact – it’s on page 32 – regarding the diary and then from 10 – the second activity down is 10 March to 2 June four job search contacts per fortnight; further down attend all job interviews from 28 August to 20 February; accept referrals to suitable positions.
MS HUNT: You’ve got that page in front of you?‑‑‑Sorry, what page?
MR BULLOCK: Page 32?‑‑‑I’m familiar with the document.
Yes, okay, so before asking you to do that, doesn’t that show they only regarded that education and training placement as a very small part of the activities they required of you?‑‑‑Well, I don’t know. The issue is whether I would think is this document a valid document or is it suspended on grounds that like it actually contains but I think myself that they classed it as a substantial part because when I attended the Job Network provider they said if 20 hours of study was provided I wouldn’t have to do there, so I would think it would be a substantial part of the ‑ ‑ ‑
But the contradiction is they want you to accept all referrals to suitable positions, attend all interviews, so this is all designed primarily for you to actually find employment which sort of contradicts what you’re saying about being a major part of the activity. This has all the intention of assisting you to look for and find work but if they considered that part of - the education was a major of your activities it would clash?‑‑‑Well, it does. It overrides the job search and ‑ ‑ ‑
Yes, well, I think that all the activities there as far as job seeking and working far outweigh the two references to your study?‑‑‑But once the Job Network provider has acknowledged and has proof of your educational load then my obligation to minimise to – once every three months I was visiting the Job Network provider in ‑ ‑ ‑
But it doesn’t say – these are quite specific. They’ve got ‑ ‑ ‑?‑‑‑I realise that but I have never – I have never – I’ve done the job seeker diary which was just filling out job contacts which I’ve attempted to obtain but I – I realised your position but my understanding is that the attendance was or did become a major part of the contract even though it seems like there is a substantial or two substantial clauses which involve the job seeker diary and also the attendance and referrals to jobs.
When you discussed this with PAGES did they indicate to you what their expectation was arising out of the activity agreement?‑‑‑To my recall not really. I explained to them that I was – that I would do the education and do whatever the agreement has asked me to do and I did that to the best of my ability.
But they didn’t mention anything about what they expected you to focus on, work or study?‑‑‑Well, no, not really that I can recall.
Now, in the statement of facts and contentions, senior member, paragraph 13, the short course, in the guide to the social security law that I’ve quoted in that chapter just down the bottom at the paragraph headed “PAGES can only approve a full time education or training course” did you discuss the course as an approved short course or anything like that with PAGES?‑‑‑What pages, I’m sorry?
Sorry, they’re the Providers of Australian Government Employment Services. These are the people who you drew up the activity agreement with?‑‑‑This is actually a Centrelink agreement and it was signed in the Centrelink office at Darlinghurst.
Yes, it’s ‑ ‑ ‑
MS HUNT: PAGES are they in Centrelink premises?
MR BULLOCK: It’s done through Centrelink, yes. It’s obviously Centrelink?‑‑‑It’s just usually one of the officers of Centrelink.
MS HUNT: Right.
MR BULLOCK: And in that sense that’s what you’re referring to when you were talking about your course approval?‑‑‑Yes, I said – I’m pretty sure that I did mention that it was an approved course to the interviewer at the time but I can’t be a hundred per cent sure but I probably would have said they weren’t approved sort of ‑ ‑ ‑
It says there that:
PAGES can only approve full time education if they include in the job seeker’s activity only if the course is less than 12 months duration and there is no of the job seeker finding employment with their existing skills.
But you cannot recall whether or not the substantial part of the discussion regarding the activity agreement was your work - looking for work activities or your education study?‑‑‑It might have been based on the educational issue, I think, because I had to supply proof that I was actually enrolled in the courses and that ‑ ‑ ‑
But not predominantly?‑‑‑Not really. The agreement is not a long-winded agreement. It’s just explained and altered if need be. I do have the signed original copy instead of a photocopied one which does have alterations on it but it was – it’s not one that’s gone into with a real depth. It’s discussed and explained to you what your responsibilities are.
Okay, turning again to the enrolment form and the phone call, when they realised that this was almost full time, what was a full time course and they rang you and said – I guess they said to you if this is a full time course then you can’t continue with Newstart, we’re going to have to cancel it. Is that the essence of the phone call?‑‑‑No, it was more on the grounds that if – it was on the grounds that my Newstart – I was considered a full time student and that my Newstart agreement would be terminated and ‑ ‑ ‑
Because you were a full time student?‑‑‑Yes, and that I ‑ ‑ ‑
Based on that form?‑‑‑Yes, and I had to make further arrangements with ‑ ‑ ‑
Was your response at that time that you didn’t intend to do the full course?‑‑‑Well, my responses at the time as I said to the caller that I would like to make an appointment with Centrelink to discuss the matter in the near future and that was provided and I explained my position.
Which was?‑‑‑That I would take the course on a reduced amount of hours but still enrol as a full time mode.
But that wasn’t your intention before then. You always knew that it was your intention to – not to do full time anyway. You were going to pick and choose?‑‑‑There’s no other – no other mode but full time but reduced hours can be done. It would be similar to if you enrolled in a degree and you had a diploma usually you can get credits for that diploma in that degree. So you would not have to – you would still be going full time but you wouldn’t have to do it all because you would be actually acknowledged for your previous studies.
I have no further questions for Mr Croker.
MS HUNT: Thank you, Mr Bullock.
Mr Croker, going back to page 38, that timetable, what does that actually indicate in terms of whether it’s full time or part time?‑‑‑The timetable is showing your classes and attendance in classes from Monday to Friday and as you can see on Monday there is attendance from 9 o’clock to 1 o’clock and also from 1.30 till 5.30 in the afternoon.
This is your timetable, is it?‑‑‑Yes, well, it was timetable, yes.
Is that meant to be a full time or part time timetable?‑‑‑The mode of study is full time.
It says down the bottom semester 1 2007. How many semesters were you supposed to attend once you were enrolled?‑‑‑As a full time student it would be one semester which runs for six months.
Would you get your diploma then?‑‑‑Well, no, I wouldn’t be – if I did attend full time for the six months and passed all the modules I would have – I would receive the diploma, yes.
So it just involved one term of study?‑‑‑Yes.
What about if you were doing it at the reduced hours?‑‑‑Well, my forecast was actually 12 months to 18 months.
I was asking that question because I can see that the - paragraph 13 of the facts and contentions about the guide, the social security law that Mr Bullock referred to said PAGES can only approve – well, this is a full time course, isn’t it, not part time if it’s less than 12 months. What’s the situation, Mr Bullock, if it’s part time? They tell me about full time courses. Is there a similar policy statement about part time?
MR BULLOCK: Part time not that I’m aware of. As far as the approval for a short course goes, in relation to full time they would approve it as they said if it was the best way of the person being able to find employment and there was – unless they did this course there would be little chance of them finding employment with their existing skills.
And there was – unless they did this course there would be little chance of them finding employment with their existing skill. So it’s actually also designed to give the person the best possible chance of finding employment and if – full time study, but as a short course meaning less than 12 months, then they would probably approve that but only as the last resort if it was the only way to improve their skills for them to find employment. Part-time is – can only be accepted as part of an activity agreement, but as the activity agreement for Mr Croker shows, the overwhelming activities required are actually participating in job seeking themselves and the courses – just one small part of that. In relation to that timetable, I was just wondering if I can ask Mr Croker – Mr Croker, there were crosses on that timetable ‑ ‑ ‑?‑‑‑Yes.
- - - on Tuesdays, Thursdays – being Thursday afternoon. Did that indicate anything?‑‑‑Well, at some stage they would have because that – the crosses would have actually – they indicated my intended pattern of – actually course of studies and even the first one which has been scribbled out would have been Monday morning till 19 till 1 was attended. There was costs associated with that module so I had to retire from that. The second cross in the second column under Tuesday from 11.30 to 1.30 was actually not engaged, but Thursday, 9 till 1 and also Thursday, 2 to 4 were engaged.
So there’s a total there of about two – three hours on Tuesday, four hours on Thursday and another two hours on Thursday afternoon, that’s about seven or eight hours?‑‑‑Roughly.
So that was all the study that you were doing or intending to do?‑‑‑Yes, there were several interruptions to studies, but they were my attempted modules.
Nothing further.
MS HUNT: I haven’t looked at this particular allowance before so I’m just trying to go through – looking at the Act – maybe we could just go step-by-step through that and you could tell me what the effect of it is in Mr Croker’s case. It’s section 665U, that’s the governing section, isn’t it?
MR BULLOCK: Yes.
MS HUNT: So we will look at this section, Mr Croker, together, all of us, and it governs the payment that you are seeking ‑ ‑ ‑?‑‑‑There was one ‑ ‑ ‑
It’s set out in paragraph 11 of the secretary’s statement of facts and contentions. You were looking at it a bit earlier ‑ ‑ ‑?‑‑‑Yes, I have got that.
Have you got that in front of you?‑‑‑Yes, member. Member, as we are going through the Act, would I still have to be under oath? Is that ‑ ‑ ‑
Yes?‑‑‑It is? All right.
But I don’t know that we will need to ask you more questions but – Mr Bullock said he is finished his questions. I might want to ask you something else if Mr Bullock explains something to me that I think needs further investigation. Why did you ask that question?‑‑‑Well, I would probably be making submissions that I – it might be my opinion and might be fact.
Of course. Well, I will give you an opportunity to do that but I would like to go through this section step-by-step right now and then if you want to challenge something you can do it on the way through or you can sum up at the end?‑‑‑Thank you.
Section 665U(1) says:
A person is qualified for an education entry payment under this section if, (a) either: the secretary is satisfied that the person intends to enrol in a full-time course of education that is an approved course.
Now, as I understand it, you did enrol in a full-time course but you actually intended to do it part-time?‑‑‑I intended to enrol in a course full-time because there were no other mode of study available for the way I wanted to study.
And then we come to the question that it’s supposed to be an approved course and what do you say about that?‑‑‑I would say that the computer courses are minor standing approved courses for approved course of study.
So what do you say about that, Mr Bullock?
MR BULLOCK: The question of the course itself being approved, as far as the secretary is concerned, is purely not an issue in this matter. I conceive that whatever course he was enrolling in, it was an approved – it was certainly part of the activity agreement, so in that sense, page has obviously have given approval to the - being approved course.
MS HUNT: Is the secretary relying on this subsection to disallow the payment or ‑ ‑ ‑
MR BULLOCK: The 665U ‑ ‑ ‑
MS HUNT: 1 – or is the secretary relying on a later subsection?
MR BULLOCK: A later one.
MS HUNT: So we can move on from that then, although we have been discussing those aspects of it. So subsection b says:
Immediately before starting the course of education, the person is receiving the Newstart allowance –
Which you were, is that right?‑‑‑Yes.
And the person had been receiving income support payments in respect of a continuous period of at least 12 months.
So you were receiving disability support pension before?‑‑‑Yes.
Was there any break?‑‑‑No.
So where can we go from there, Mr Bullock?
MR BULLOCK: Down to (c):
A person ceases to be qualified for Newstart allowance because the person takes part in the course of education.
In other words, he ceases to become a job seeker and becomes a full-time student and, in this case, as per the phone call, Centrelink said it has to be one or the other.
MS HUNT: And what do you say about that, Mr Croker?‑‑‑I would say the phone call from Centrelink actually acknowledged me as a full-time student and, at that point in time, I would say that I was entitled to, and actually acknowledged to the –acknowledged as a full-time student and entitled to the education entry payment.
MR BULLOCK: The problem – I understand he said he was enrolled, but there was never any intention – but the difficulty with what Mr Croker is saying is that is a qualification precedent to him being granted. In other words, it has to happen. It says:
The person ceases to be qualified for Newstart because the person takes part in the course of education.
It was never intended for the education entry payment to be for Newstart people unless they turned to full-time study. In other words, it was an ancillary, one-off payment made every year, $208 to purchase books purely with the intent that their major activity was full-time study but they would have to become qualified for a course which would allow them to engage in full-time study such as Austudy or for a younger person, they are Youth Allowance students. Mr Croker doesn’t qualify for
either of those, I think they ruled you out of Austudy because of your age?‑‑‑I’m not quite sure, but ‑ ‑ ‑
I think there’s a maximum?‑‑‑I was really based on the bottom of the – actually, my further submission was actually (c)(ii) and about halfway across the second-last line, it says, “or to comply with the Newstart activity agreement.”
MS HUNT: Well, did you want to address each of those paragraphs, Mr Croker, in (c)?‑‑‑Well, member, I would be, sort of, placing myself in a position where it would have to be in the alternative.
So you basically agreed that not all of those subsections and paragraphs under (c) apply to you, is that right?‑‑‑Well, I’m saying c1 is – does apply or did apply at the time.
You did cease to be qualified for Newstart because you were taking part in this particular course of education, is that right?‑‑‑Yes.
But you have continued to receive Newstart, that was part of their evidence?‑‑‑Yes.
So what do you think you are entitled to?‑‑‑Well, I still think I was entitled to Newstart but I would say that because the Centrelink officer acknowledged you as a full-time student and indicated to me that the – for my allowance was cancelled or would be cancelled, that under that section I would be qualified as – cease to be qualified for Newstart allowance because a person takes part in the course of education.
All that these requirements under section 665U have to be met - it says if you are – look at the last word in each paragraph. It says, “and, and, and,” so when you come down to (c), you have to be able to show that you cease to be qualified for Newstart because you were taking part in the course of education but you have just said, I think I was entitled to Newstart?‑‑‑Well, like I said, that will be an alternative because the Newstart activity agreement is – it’s at the end of (c)(ii) or to comply with the Newstart activity agreement.
(c)(ii) says, “is not qualified for Youth Allowance, Austudy, Abstudy to satisfy the activity test.”?‑‑‑And it goes on to section 601, “or to comply with the Newstart agreement,” – the issue with this is I thought I was attending to – at that point in time, I was unaware that there was any real indication that there would be suspension or that the agreement was supposedly, wrongfully negotiated, but the intention was to comply with the Newstart activity agreement in attending the educational programs and, in the alternative, if I would – or if there is a issue that there was enough substantial evidence or evidence that can’t be found that I was actually acknowledged as a full-time student, then, in the alternative, I would say that it was to comply with the Newstart activity agreement.
So this is the real area of disagreement between both parties, is it? Is that right, Mr Bullock?
MR BULLOCK: Well, it seems to be now, I was going to say that either, if the scheme, if the activity agreement is in you believe not valid then you can’t rely on that?‑‑‑I know but I was unaware at the time.
However, if you do rely on the (c)(ii) the response is that because the person takes part in the activity under section 601 or to comply with the Newstart activity agreement my argument is that the thrust of that is that they, a person may be required to do some study as part of it. How long have you been studying part time and whatever, how long, when did you first start?‑‑‑I think about ’92, 1992.
Okay. So, and that’s the secretary’s argument too is that Mr Croker has been studying now for some 15 years as, in part time and whatever, and that activity agreement as I said before overwhelmingly is for him to engage in job seeking activities and the education although Mr Croker can’t remember was probably put in there to actually, I don’t know, did you insist on putting it in or was it part of the negotiation, or ‑ ‑ ‑?‑‑‑Well I asked to be recognised as a student and also to have it involved in actually a part or a clause or a condition of the agreement.
So you weren’t asked to comply with it. It wasn’t their idea, you asked can it be put in as part of it as well?‑‑‑Yes.
Okay. So in that sense I don’t think Mr Croker qualifies under (c)(ii) either because it wasn’t put in there for him to comply or required of him, it was something that he wanted put in, otherwise it wouldn’t have been in there.
MS HUNT: But it was there. I must say I’m somewhat confused about this. I started off thinking that the Secretary’s objections were somewhat different from what they seemed to have turned out to be in the course of this. So it’s paragraph (c) that the difficulty arises in, is that right, Mr Bullock?
MR BULLOCK: Well essentially that’s the, yes, that’s the real difficulty because the education entry payment was never intended for people who are receiving Newstart, they were intended for people who were involved in education study such as single pensioners, pensioners.
MS HUNT: I must try to stick to what the section actually says though. I can see that. So you can base what you’re saying on the fact that paragraph (b) says that:
The person was receiving Newstart before the course of education.
And (c) says:
The person ceased to be qualified for Newstart.
But then it’s got this option.
MR BULLOCK: With the intention there is also that allows whoever is in the powers of negotiation really are in favour of pages or whoever the Job Search
provider is, that they can actually require a person – that’s part of the course – to, as part of the, to satisfy the activity test or a Newstart agreement to do, undertake some study. For instance people from non English speaking backgrounds may require some English courses for, you know ‑ ‑ ‑
MS HUNT: So what is wrong in this case from the Secretary’s point of view? Is it firstly that although Mr Croker did enrol in a full time course he never intended to make it a full time course? And secondly, that it did not satisfy the activity test. Are they the two things that you are saying?
MR BULLOCK: Yes, and he was always studying part time. We’ve seen the number of hours that he has crossed on the form to be only about 10 hours which is a very minor part of his week. He wasn’t required to satisfy the activity test by undergoing that course. It was something that he asked to be put in and as part of the negotiation and as I said the activity agreement is, concentrates on job seeking activities. So that the Secretary’s argument was he didn’t cease to be qualified for Newstart and as far as (c)(ii) goes the education part of it wasn’t put in there in order for him to comply with the New Start activity agreement.
MS HUNT: So what did he have to do to meet the activity agreement?
MR BULLOCK: The activity agreement is in the T documents at page ‑ ‑ ‑
MS HUNT: I know we looked at it previously.
MR BULLOCK: 31.
MS HUNT: And there’s a long list of things.
MR BULLOCK: Yes, starting at the first one, there were two Job Search contracts before it. Then there was the enrolment and studies education. And then there was, over the page there was two quite detailed activities regarding Job Search, job seeker diary, mutual obligation, and looking for work, attend the course, then attend all job interviews. Then I believe the next one is one which attests to the fact that it was really designed for him to find work because it says:
I will accept all referrals to suitable positions.
In other words if we find you, well refer you to a position you should go and ‑ ‑ ‑
MS HUNT: Well, Mr Bullock, you didn’t ask any questions about that. Were there any referrals?
MR BULLOCK: To?
MS HUNT: To suitable positions?
MR BULLOCK: It’s not something I’m aware of.
MS HUNT: Mr Croker, would you like to give evidence about whether you got any referrals?‑‑‑I have never received any referral from any job work provider, job network provider.
And did you attend your Company Law course at Curtin University from 28 August 2006 to 28 February 2007?‑‑‑Yes.
Do you have any argument with that, Mr Bullock?
MR BULLOCK: No. I think that once again that when Mr Croker was seen by the job capacity assessor and it was found that he could be exempted from his activities until June 2007 – and that was in February not long after he, or around about the same time that he applied for the education payment – so from in that period the only reason probably it wasn’t referred was that he wasn’t required to do it because of his disability.
MS HUNT: I can understand what you are saying, Mr Bullock, about the intention of the section and the payment. I’m just having some difficulty tailoring the situation to what the requirements are. So I understood you to say before that the secretary was relying on (c) rather than (a) and (b). But I would have thought that there was a difficulty under A for the Secretary to be satisfied that the person enrolled, intends to enrol in a full time course or is enrolled, although I suppose in theory Mr Croker was enrolled in such a course but he didn’t, although the enrolment stated 30 he has told us he never intended to attend for 30 hours. So technically he is enrolled in it though. And then immediately before starting Mr Croker appears to comply with B fairly clearly, is that right?
MR BULLOCK: Yes, it’s the clearest one of all.
MS HUNT: Come down C and in order for the Secretary to succeed the Secretary has to show that he’s not qualified because he is, well he hasn’t ceased to be qualified for Newstart allowance because he’s taking part in the course of education and that seems to be demonstrated by the fact that you continued to received it, Mr Croker, although I suppose you could say you didn’t qualify but I don’t think you are trying to say that, are you?‑‑‑Well, what I was, what I understood from the contact with the officer from Centrelink that I did cease to qualify for Newstart.
But you continued to receive it?‑‑‑After negotiations with them, further negotiations.
But you, it never stopped you said before?‑‑‑No, but I was told that I did cease to qualify.
Possibly that was that you would cease to qualify if you did certain things because they’ve never in fact stopped it?‑‑‑Well, I was told to make, to actually make other arrangements from Centrelink. I was told that it would cease and that I would have to make other arrangements.
And what other arrangements did you think you had to make?‑‑‑Well, I thought Austudy at the time.
Pardon?‑‑‑I thought Austudy if anything.
I see. Well, if we take the alternative position under paragraph 2 is not qualified for youth allowance Austudy, Abstudy, because the person takes part in the course to satisfy the activity test. This seems to be the main argument, Mr Bullock that you are putting now but Mr Croker did not take part in the course to satisfy the activity test, is that your main argument?
MR BULLOCK: Yes, he wasn’t compelled to. It wasn’t an integral part. It’s something that had never arisen until Mr Croker just mentioned it but that is the intention of (c)(ii) to actually, well I don’t like, to get people to comply, and it would be an integral and major part of the activity agreement as the example I quoted before, people who needed, or people who were illiterate.
MS HUNT: I understand all those arguments and proposed statements you are making but I just want to try to confine it to the actual situation here and I can see that the suggestion that you are putting to me about the activity agreement does have a lot more emphasis on other matters, not this particular course which is not actually referred to at all there, is it?
MR BULLOCK: If I may, and to Mr Croker lodged his form for an education entry payment and along with his enrolment form and they’ve looked at it and said, hang on, this is 30 hours a week, this is the major part of his week, so they’ve rung him and said, well, you know, if you are going to do this then you’re either going to have to claim Austudy or as Mr Croker said make other arrangements. So he went in and saw them and I don’t know whether or not, I think there is an age limit for Austudy. Well, if you go and claim, intending to go on full time study then you won’t qualify for Newstart and I guess that at that time - I’m surmising - but Mr Croker said, well I only did or only ever intended to do it as a part time an that’s why they continued his Newstart allowance.
Well, okay, if you gave him then, we can’t pay you this because you don’t meet that condition and the reason it was there in the first place in the activity agreement wasn’t there under any compulsion by, to make it a major part of the agreement but only because Mr Croker insisted that it be put in. As he has given evidence he’s been doing part time study for the last 15 years.
MS HUNT: All right. Well, for me to sum up and make a decision, which I would like to be able to do today - I’m just trying to work my way through it – it does seem to me, Mr Croker, that you can’t qualify for the payment because although you enrolled in a full-time course which was part of the requirements, you only ever intended to do it part-time. That’s no criticism; you had a difficulty which is understandable. I think the Centrelink person who dealt with your claim tried to take a sympathetic attitude towards your situation and that’s why they continued to pay you Newstart after the phone conversation, but the fact is that you didn’t cease to be
qualified for Newstart because you weren’t actually doing it full-time and you also didn’t qualify for other allowances.
Now, I’m not going to go into those in detail but it’s apparent that you wouldn’t get a Youth Allowance and you haven’t shown that you do in fact qualify for any of these other payments. I don’t accept that you satisfy the activity test under section 601 or comply with the Newstart Activity Agreement because the agreement before me here shows emphasis on a whole load of other matters that you were expected to follow through on and not this particular course. I can see you’ve complied with some of these requirements but they’re not the requirement that you’re trying to introduce in your claim, which is this particular course that you’re doing, this computer course, that wasn’t a requirement of your activity agreement.
Even if the agreement was suspended, there’s no other activity agreement that you can point to to show that it satisfied that agreement, so it seems to me that you can’t meet the requirements of paragraph (c) of section 665U(1), that you fail to meet that requirement. And the requirements of subsections (a), (b) and (c) are all cumulative, you have to satisfy all of them, so I’m afraid you don't qualify for this education entry payment on that ground and are not entitled to it. If you’ve got something further you want to say to dispel my impression, I said I would give you another opportunity. Is there something further you want to say?
MR CROKER: Yes. I’m still of mind the activity agreement at the time was in force and that the education clauses or terms of the agreement or do meet the standard or the requirements in (c)(2), and in the alternative, in (c)(1) I would state that the “cease to be qualified for Newstart Allowance because the person undertakes part in the course of education” was communicated to me very clearly by phone call from an officer of Centrelink shortly after the lodgement of the enrolment form with Centrelink.
In regards to the intention to study full-time or enrol full-time in a course, I would say that has been satisfied in that the only way or the only mode which I intended to role in was the mode of full-time and that would satisfy (a)(1) and (b)(1) or (b)(2) have been satisfied. I’m still of the mind that they are clauses that if attendance wasn’t or participation wasn’t done, that the activity agreement would have to be redrafted by both parties. That would be my submissions.
MS HUNT: These provisions are a little complex; however, I am still of the opinion that you don’t satisfy subsection (c), in that I am not satisfied that you ceased to be qualified for Newstart Allowance, and I am also not satisfied of the alternative, that you were not qualified for any of the allowances set out there, and that you were taking part in the course to satisfy the activity agreement. So the end result of that is that I am not satisfied that you have met the requirements to satisfy section 665U for receipt of an Education Entry Payment. So I am making that decision today. Thank you for attending. I think that is the end of the matter today.
MATTER ADJOURNED at 11.29 am INDEFINITELY
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