Dauguet and Secretary, Department of Social Services (Social services second review)

[2020] AATA 2475

Dauguet and Secretary, Department of Social Services (Social services second review) [2020] AATA 2475 (28 July 2020)

Division:GENERAL DIVISION

File Number:          2019/4556

Re:Alain Dauguet    

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:28 July 2020

Place:Melbourne

The Tribunal affirms the decision under review.

I direct the Principal Registrar of the Tribunal to refer these reasons to an appropriate authority.  

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

Dr Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – Newstart/Jobseeker allowance – cancelation – failure to attend employment services assessments – whether reasonable excuse – decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

28 July 2020

BACKGROUND

1. The Applicant, Mr Alain Dauguet, seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) dated 23 April 2019. The decision affirmed a decision made on 13 August 2014 by the Department of Human Services (Centrelink) to suspend and then cancel the Applicant’s Newstart Allowance. On 3 November 2014, an Authorised Review Officer (“ARO1”) of Centrelink affirmed the decision dated 13 August 2014.  

2. The basis of the cancellation by Centrelink, as the Tier 1 decision notes, is that the Applicant was required to attend an Employment Services Assessment (“ESA”) appointment on several occasions and failed to do so.

3. The Applicant claimed that the decision under review should be set aside on the ground that he was unable to attend the appointments on the dates in question for medical reasons.

4. The Respondent contended that the decision under review should be affirmed.

   HEARING

5. A hearing in this matter was conducted on 10 March 2020. The Applicant was represented by his wife and carer, Ms Natasha Peric, and the Respondent was represented by Mr Cameron Munro, a lawyer from Services Australia.

6. The Applicant himself did not give evidence at the hearing, due to his having suffered a stroke in 2018. Ms Peric gave evidence on his behalf by telephone. She indicated the Applicant was sitting nearby to her. Mr Munro asked questions of her in cross-examination. I am assuming the Applicant is, in fact, alive.

7. No evidence was called by the Respondent.

   LEGISLATION

8. The qualification criteria for Newstart Allowance, which is now known as Jobseeker, is set out in s 593 of the Social Security Act 1991 (Cth) (the “Act”).

9. One requirement in s 593 relevantly provides:

   (1)       Subject to sections 596, 596A, 597 and 598, a person is qualified for a                  jobseeker payment in respect of a period if:

   (a)       the person satisfies the Secretary that:

   (i)        throughout the period the person is unemployed; or

   (ii)       the person is a CDEP Scheme participant in respect of the   period; or

   (iii)       subsection (1A) applies in relation to the person for the   period; and

   Note:       For CDEP Scheme participant see section 1188B.

   (b)       in the case of a person to whom subparagraph (a)(i) or (iii)    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

   …

   (e)       if the person is required by the Secretary to enter into a Jobseeker    Employment Pathway Plan in relation to the period, the person   enters into that plan; and

   (f)        while the plan is in force, the person satisfies the Secretary that the    person is complying with the requirements in the plan; and

   …

10. The “activity test” referred to in s 593(1)(b)(i) is defined in s 541 of the Act. The requirement in s 593(1)(f) to comply with the requirements in the “plan” refers to an Employment Pathway Plan defined in s 23 of the Act.

11. Certain persons are exempt from having to comply with the activity test if they are incapacitated as provided under s 603C of the 1991 Act.

12. In accordance with s 63(1)(a) and (2) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), a social security recipient may be required by notification to attend an office of the Department or a particular place for a particular purpose. Under s 64 of the Administration Act, a person’s social security payment is not payable if, without reasonable excuse, the recipient does not comply with a notification and fails to attend as required.

    ISSUES

13. The issue is whether the Respondent correctly cancelled the Applicant’s Newstart Allowance with effect from 13 August 2014 until the time the Applicant was in receipt of Disability Support Pension (“DSP”) commencing from 23 November 2018 under the Act;

    that is, whether the Applicant is due back payments from 13 August 2014 until 23 November 2018, a period of approximately four years when no Newstart allowance was paid.             After November 2018 he was, apparently, in receipt of DSP.

14. The Respondent maintains that the Applicant was lawfully notified to attend an ESA appointment under the Administration Act on several occasions but failed to do so.

15. The question then is whether the Respondent correctly notified the Applicant to attend the ESA appointments and, if so, whether the Applicant failed to attend.

16. If the Applicant failed to attend, the question then is whether the Applicant had a reasonable excuse on each occasion under the Administration Act for not attending.

    EVIDENCE

17. Apart from evidence in the T documents, the only evidence in this proceeding was given by the Applicant’s wife and carer Ms Peric. I found her evidence confusing, difficult to follow and not directed to matters in issue. Indeed, I found her evidence positively unhelpful and argumentative.

18. Ms Peric said that the Applicant’s Newstart Allowance was “unlawfully cancelled, wrongfully cancelled… on 12 August 2014”. She informed the Tribunal that the Applicant had medical certificates supporting his inability to work and stated, “he had no capacity, zero capacity”. She attributed the Applicant not being granted an “exemption” to a dispute she had with the manager of Centrelink’s Epping Office.

19. I was not clear what Ms Peric meant by “exemption”, but I assume she was referring to s 64 of the Administration Act.

20. I asked Ms Peric whether the Applicant should have been assessed for DSP but wasn’t and was instead put on Newstart which was subsequently cancelled. Ms Peric answered “Yes”. She indicated to the Tribunal that she had complained to the Commonwealth Ombudsman and that as a result of her complaint, and her dispute with the Epping Office, the Applicant’s payments were cancelled “because [the manager of the Office] wouldn’t grant exemption…just as a pay-back”. She said the Applicant “was entitled to get an exemption”.

21. After directing Ms Peric back to this matter, I asked if her husband had failed to attend some ESA appointments but was able to go to others. Ms Peric told the Tribunal there “was no appointment” and later that “there was only one or two and I did notify the providers at the time”. She said that the Applicant was “unable to attend”. Ms Peric said she told “them”, which seems possibly to refer to persons at ESA, that the Applicant “had medical certificates, was unable to look for work” and “was unable to enter into any agreement to look for work either”.

22. Ms Peric said she was advised to inform Centrelink, but was charged with trespass when she went to the premises and the police were called. She said this matter was in the County Court but she had been running late and her appeal had been dismissed. She said she was appealing the dismissal decision in the Supreme Court. From this information, I infer that this was a Magistrates Court proceeding as Ms Peric claimed that “the Magistrate worked with the other side”, however, I am unclear about the outcome. Indeed, I am unclear about the whole situation itself.

23. Ms Peric said that the only appointment she attended was the job capacity assessment which was in July 2011. She repeated that there were “no other interviews”.

24. Ms Peric summarised her position by stating: “basically it’s straightforward. The law says Alain’s entitled to get his payments for four and a half years. The arrears need to be paid. He’s entitled, it was his money”. She said the “Employment Service Assessments do not apply” because the Applicant was not looking for work. She stated, “he’s a person with permanent disabilities and those were totally ignored and put in the bin and totally disregarded”.

25. I then took Ms Peric to certain paragraphs in the Tier 1 decision. As to the finding that the Applicant had failed to attend several ESA appointments commencing with one on 21 May 2014, Ms Peric stated, “those appointments were just made up”. When asked about each of the appointments on 21 May, 2 June, 12 June, 2 July, 8 August, 13 August and 1 September 2014, Ms Peric said similarly, “well, those appointments didn’t take place because we weren’t notified of those appointments”. Ms Peric told the Tribunal “they’re false appointments and we do have evidence to say that Alain was unable to work”. She said Centrelink “disregarded” his medical certificates “which is really unlawful and it’s completely wrong”.

26. In cross-examination Ms Peric was asked about a conversation she had with an officer on 18 June 2014, to the effect that the Applicant’s payments would not be restored until he had an ESA appointment. Her response  was “there was no conversation on 18 June 2014” and she said the record of it was “false”.

27. Ms Peric was then asked about a similar conversation on 30 June 2014 and she said that was also “false”. She was then asked whether the conversation took place, and she answered, “No. Absolutely not”.

28. Ms Peric denied also that she had a conversation on 1 July 2014. She said “yes, I told you, none of these conversations took place. Absolutely not, yes”.

29. It was put to Ms Peric that there was a record of a conversation she had with an officer on 30 July 2014, regarding her husband attending an ESA appointment  the following day. She said, “no, that’s not a true record”. She added these were “fabrications of Centrelink making things up”.

30. Ms Peric was asked about a record stating that the Applicant had attended the Windsor office to inform Centrelink that he would not be attending an ESA appointment. Ms Peric’s response was, “that’s certainly not true”. She agreed, however, that she and the Applicant had attended the Newmarket office on 15 October 2014 and possibly also on 16 October 2014.

31. Ms Peric was asked about Federal Court proceedings. She agreed that the Applicant had attended the various applications associated with those proceedings in person. She was taken to an undertaking given by the Applicant in those proceedings to begin an application to review a decision of an authorised review officer (“ARO2”) in the Social Security Appeals Tribunal (now Tier 1 of this Tribunal). She was asked whether it could be taken that the Applicant knew of his right to seek review to which she replied, “no, this is incorrect. He was never my lawyer. I dismissed [the lawyer]. We had a dispute. He prepared this behind my back and lodged it with the Federal Court”. Ms Peric said the lawyer is “corrupt, absolutely” and she said she “sacked him as Alain’s lawyer because he was working with the other side”.

32. Ms Peric went on to answer further questions about this. She said the Applicant was aware of his rights to appeal the decision of ARO2 but she said, “the appeal was removed off the database” as some Centrelink persons “removed it”. She told the Tribunal “they manually just delete it from their record or they put it, they know what they do”.

33. I then asked the witness if she wanted to say anything further after cross-examination concluded. Referring to the cancellation of payments she said, “It’s really upsetting and distressful, it caused severe hardship on me and my family. You know, I’m a family of five and I’m his carer”.

34. In further answers to questions from me, Ms Peric said that in 2014 “we” were living in Broadmeadows. She said her previous address was in Mentone. She repeated that in May 2014 she was not living in Mentone and said, “I know I wasn’t living in Mentone… in 2014 I was living in Broadmeadows for the whole year”.

35. Ms Peric was then asked about an Affidavit dated 29 October 2014 in which the Applicant stated his address was in Mentone. Ms Peric said, “I know I was living in Broadmeadows at some point in 2014”. Alerted to the possibility of false evidence having been given to the Federal Court, I asked Ms Peric whether or not she was living in Mentone in May 2014. She replied, “yes, I was living in Mentone, yes… if you look at Centrelink records everything’s been completely changed, like Centrelink dates, like the medical certificates”.

    ANALYSIS

36. My analysis in this matter, affecting the findings I make, has been made difficult by the nature of the evidence given by Ms Peric.

37. I have not had the advantage, moreover, of hearing from the Applicant himself. Ms Peric told me he was present nearby but I do not know his current state of health, except that he suffered a stroke on 25 June 2018. Whether this means he is unable to speak, I cannot say.

38. I note, however, that this position is one not dissimilar to that described in a Job Capacity Assessment (“JCA”) Report dated 29 September 2010, nearly 10 years ago and long before the Applicant’s stroke. The JCA Report stated: “The client [i.e. the Applicant] arrived with his partner and was difficult to engage with. The client’s partner, Natasha, predominantly answered most of the assessor’s questions and rarely allowed the client to answer questions relating to him”.

39. Notwithstanding, I consider I am in a position to make findings on the basis of materials contained in the T documents and also on the basis of Ms Peric’s evidence, where I accept it.

40. The T documents disclose not only the Applicant’s stroke in June 2018, but also make it clear that he has been unwell for a long period of time going back at least to 2008, if not earlier.

41. I think it is clear that I may find, as I do, that the Applicant was initially on Newstart. It appears that he had been on this, or a similar allowance, for a very long period of time – since June 1992.

42. A JCA report dated 6 October 2011 expressed a view that the Applicant had a baseline work capacity of between 15-22 hours per week.

43. Thereafter followed medical certificates lodged by the Applicant dated 5 May 2014 and 16 July 2014 seeking (it is claimed) exemption from the activity test required of him.

44. The May certificate completed by Dr Phan says the Applicant has three permanent conditions; lumber central canal stenosis/nerve root compression (three years since onset), L5-S1 spondylosis, and diabetes type 2 (six years since onset). The medical certificate states that the Applicant is unfit for work from 18 April 2014 until 17 July 2014.

45. The July certificate includes six years since onset for the condition of  L5-S1 spondylosis and states that the Applicant is unfit for work from 18 July 2014 until 17 October 2014. Otherwise, the July certificate is the same as the May certificate.

46. At this point, if I accept the certification by Dr Phan as correct, the Applicant is not fit for work and has permanent conditions as described. But the medical certificates specify only certain dates, the latest date being 17 October 2014.

47. I regard it as odd that these certificates (both generated in 2014) are given by a medical practitioner in Sunshine and that the Applicant’s address is specified on them as one in  Hillside. The Hillside address is not consistent with the evidence given by Ms Peric that in 2014 both she and the Applicant were living in Mentone. Although, this statement was altered from what she first said, that she and the Applicant were both living in Broadmeadows for the “whole” of 2014. The distance between Broadmeadows and Sunshine is considerable for the Applicant if he is so unwell – but it is even further between Mentone and Sunshine.

48. Evidently though, wherever the Applicant was living – be it in Hillside, Broadmeadows or Mentone – he was not so unwell that he could not attend an appointment with Dr Pham in Sunshine.

49. Earlier, on 13 May 2014, the Applicant was issued with a notice stating he was required to attend an ESA appointment on 21 May 2014. This was addressed to the Applicant’s Mentone address. The notice specified the date, time and place of the appointment with Centrelink in Cheltenham. The notice seeks “more information about your ability to work”. That request is not unreasonable.

50. The Applicant evidently did not attend this appointment and his Newstart allowance of $438.10 was suspended by notice dated 2 June 2014, which was sent to his Mentone address. Another suspension notice (for $303.30) was sent on 12 June 2014 and a further (for $34.14) was sent on 13 August 2014.

51. I am satisfied that further notices were sent to the Applicant at his Mentone address on 4 June 2014, 18 July 2014, 8 August 2014 and 27 August 2014. The Applicant did not attend any of the ESA appointments scheduled for 12 June 2014, 31 July 2014, 13 August 2014 and 1 September 2014.

52. On 23 September 2014, notice of cancellation was sent with effect from 29 July 2014.             A further notice confirming this was sent on 13 October 2014. On 2 October 2014, an account payable notice for an overpayment (of $ 505.49) for the period 29 July 2014 to 12 August 2014 was sent to the Applicant at his Mentone address.

53. I am unable to see any reason why the Applicant could not have complied with the various notices making appointments for him to attend an ESA. Certainly, nothing in Dr Pham’s medical certificates satisfies me that the Applicant did not have capacity to attend any of the appointments. The appointments were merely for seeking further information. They were not job interviews and that is something Ms Peric seems to have misunderstood. If the Applicant had nothing to hide, there is no reason why he should not have attended, even if I accept the veracity of Dr Pham’s certifications of permanent conditions.

54. Moreover, there is evidence on file that the Applicant attended Departmental premises in person on 19 September 2014 and on 15 and 16 October 2014. Indeed Ms Peric agreed she and the Applicant were at Departmental premises on 15 October 2014. He had also gone to see Dr Pham on two separate occasions around this time. In other words, the Applicant was mobile and able to move around.

55. There is nothing else, apart from unsupported claims made by Ms Peric, to verify that the Applicant was unable to attend the various ESAs.

    FINDINGS

56. Firstly, I find that requests were made appropriately of the Applicant to attend the ESA appointments. I am satisfied that each of the notices was  sent to the Applicant at his Mentone address and would have been received by him in the ordinary  course.

57. In other words, I am satisfied that the Respondent acted properly and in accordance with s 63(1)(a) and (2) of the 1999 Act.

58. For this purpose, as I have indicated, I find that the Mentone address was the Applicant’s address at the time of each of the notices. I do not accept that the notices were sent to a wrong address, or that his address at the time of each notice was in Broadmeadows. I accept Ms Peric’s evidence, that was reluctantly given, that during 2014 she and the Applicant were not living at the Broadmeadows address, but were living at the Mentone address.

59. Secondly, in regards s 64 of the 1999 Act, I see no reasonable basis whatsoever to make a finding that the Applicant had a reasonable excuse for not attending any of the ESA appointments. I also make a finding that no reasonable excuse ever existed.

60. I am satisfied that on the various dates over the period covered by the notices, the Applicant was mobile and was not in such poor health as to be unable to attend those appointments.

1. As a result, no occasion for payment of arrears arises in the circumstances I have set out.

   CONCLUSION

2. It follows that I affirm the decision under review.

3. I have been concerned at the affirmed evidence given by Ms Peric.

4. In my view, Ms Peric has deliberately and repeatedly given false evidence to the Tribunal in order to make financial gain. In particular, but amongst other matters, I note her false evidence included: that the she and Applicant were not notified of the ESA appointments, that the Applicant was “unable” to attend the appointments; that the appointments were “just made up”, that a particular lawyer was “never” her lawyer, that the lawyer prepared Federal Court proceedings behind her back, that the lawyer is “corrupt”, that she and the Applicant were living in Broadmeadows for the whole of 2014, and that Centrelink records have “been completely changed”.

5. I view each of these very seriously particularly since Ms Peric was purporting to give evidence on behalf of her husband, for whom she is a carer and is paid an allowance. In my view, her false evidence went beyond spontaneous outbursts (which sometimes are excusable) and into the area of design. Her false evidence was the product of conscious (but ill-conceived) and deliberate planning over the length of the hearing, with a view to monetary gain. Planning included in my view sometimes asking for questions to be repeated – thereby, stalling for time to answer.

6. I make no comment about whether the Federal Court affidavit is itself the product of knowingly false claims and assertions.

7. I regard the matter of Ms Peric’s false evidence to the Tribunal as so serious as to demand proper investigation by authorities.

   DECISION

8. The decision under review is affirmed.

9. I direct the Tribunal’s Principal Registrar to  refer these Reasons for Decision, in light of my comments, to an appropriate authority which may be the Director of Public Prosecutions. 

I certify that the preceding 69   (sixty - nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Associate
Dated: 28 July 2020

Date of hearing:	10 March 2020
Advocate for the Applicant:	Ms Natasha Peric
Advocate for the Respondent:	Mr Cameron Munro
Solicitors for the Respondent:	Services Australia