Davenport and Department of Family and Community Services - [2002] AATA 375

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 375

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/95

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

DECISION

Tribunal Senior Member WJF Purcell

Date17 April 2002
PlaceAdelaide

Decision       For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – activity test breach rate reduction – whether applicant ceased, without reasonable excuse, to take part in labour market program – whether applicant failed to apply for specified number of job vacancies
Social Security Act 1991 sections 601, 601A, 624, 644AA, 644AE

ORAL REASONS FOR DECISION

17 April 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 29 January 2001, which affirmed two decisions of a delegate, as affirmed by an Authorised Review Officer. The first decision of 23 May 2000 imposed an 18% activity test breach rate reduction from 23 May 2000 to 20 November 2000 and the second decision of 23 July 2000 imposed a 24% activity test breach rate reduction from 25 July 2000 to 22 January 2001.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with an exhibit tendered by the respondent (the Department). The applicant appeared on his own behalf and gave oral evidence. Mr Kilderry represented the Department.
The applicant was in receipt of Newstart Allowance during the year 2000. He was sent a notice by Centrelink dated 1 May 2000, requiring him to attend an interview with Jobs Statewide on 16 May 2000, to discuss participation in Job Search Training. He failed to attend the interview, and was issued with a notice dated 23 May 2000, advising him that his Newstart Allowance had been suspended because he did not attend the Job Network Provider interview. His rate of payment was reduced by 18% until 20 November 2000. The letters dated 1 May 2000 and 23 May 2000 were both sent by pre-paid mail to the last known address provided by the applicant and he does not dispute that he received both letters. This is the first breach.
On 27 April 2000 the applicant was provided with a Jobseeker Diary (the Diary), and was required to approach at least 10 employers each fortnight, and record these in the Diary. By about the third week of July 2000, Centrelink had not received the Diary, and the applicant's payment of Newstart Allowance was suspended. The Departmental diary note of 25 July 2000 [T9/59] records a telephone conversation with the applicant who had advised that he had forwarded the Diary. Another Diary was sent to him and was returned to the Modbury office on 25 July 2000. The Diary records 10 employers in the first fortnight, and only one for the remaining five fortnights.
The delegate considered that the Diary disclosed an unacceptable work effort and that the applicant had breached section 601(2) of the Social Security Act 1991 (the Act). On 25 July 2000, a notice was forwarded to the applicant advising him that his activity breach rate reduction period would continue until 22 January 2001, at the rate of 24%, because of this second breach within a 2-year period. This is the second breach. This decision was affirmed by an Authorised Review Officer on 5 October 2000, and the applicant applied for further review to the SSAT, which on 29 January 2001 affirmed the decision.
Section 601(2) of the Act, as far as is relevant for the purposes of this review, provides:
"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
Note:   See subsections (2A) and (2B) on what paid work is unsuitable.
(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
(iii)      in a case where the person lives in an area where:
  (A)       there is no locally accessible labour market; and
(B)there is no locally accessible vocational training course or labour market program;
should participate in an activity suggested by the person and approved by the Employment Secretary; and
(iv)should undertake an activity approved by the Employment Secretary under the CSP; and
(b)the Secretary notifies the person that the person is required to act in accordance with the opinion; and
(c)the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement."
Section 601A(2) of the Act provides:
"601A(2)If a person, who is subject to the activity test in respect of a period, voluntarily ceases, without reasonable excuse, to take part in, or is dismissed for misconduct from, a labour market program, the person is taken to fail the activity test."
The applicant maintains, in relation to the first breach, that he received the letter, and that on the date of the interview, 16 May 2000, he was to work in the Barossa Valley pruning grapevines. He was staying at his grandmother's home at Tanunda, and he received a message on his grandmother's message bank from someone from the Job Network Provider confirming the appointment. He says that he had intended to ring the Job Network Member to indicate that he could not attend, but for some reason the message was erased from the message bank. He stated in evidence also, that he may have left the original letter, advising him of the appointment, at home in a drawer and did not have it with him to enable him to ring and notify of his inability to attend. He said also that because of past difficulties in getting through to a Centrelink number he had not telephoned Centrelink.
In respect of the second breach, the applicant gave evidence that he believed he had been breached because he had failed to provide the Diary, but when he had provided a copy of the Diary he was breached because he had not approached at least 10 employers each fortnight. The applicant considers that Centrelink have been a bit too dictating in accordance with the Parliamentary Acts, and this has affected his life along the way. The applicant considers that he has been communicating well with Centrelink, and it is only some unavoidable mistakes that have caused the problems.
The Department contends, that regarding the first breach, the applicant was required to participate in a labour market program. Job Search Training is a labour market program which helps job seekers improve their chances of obtaining suitable paid work by assisting with resume preparation, job application writing and interview techniques, etc. The applicant was advised of the requirement to attend Job Search Training in the notice dated 1 May 2000, but he failed to attend. He had 2 weeks notice of the interview, and a further week after the date of the interview to contact the Job Network Provider or Centrelink to arrange an alternative appointment.
Section 601A(2) of the Act, the Department contends, provides that if a person who is subject to the activity test in respect of a period, voluntarily ceases, without reasonable excuse, to take part in a labour market program, the person is taken to fail the activity test. The applicant has not provided a reasonable excuse for failing to take part in a labour market program, and therefore has not satisfied the activity test. Section 624(1) of the Act provides that if a person fails to satisfy the activity test, Newstart Allowance is not payable and sections 624(1A), 644AA and 644AE of the Act combine to provide an 18% rate reduction for 26 weeks of Newstart Allowance payment.
Regarding the second breach, the Department submits that section 601(1A) provides that the Secretary may notify a person who is receiving Newstart Allowance that they must apply for a particular number of advertised job vacancies in the period specified in the notices. Section 601(1B) provides that if a person refuses or fails to comply with a notice under section 601(1A) of the Act, the person is taken to not satisfy the activity test in respect of the period specified in the notice. The applicant has not provided reasonable excuse for failing to take part in the program, and he failed the activity test on the first occasion, and failed to apply for a particular number of advertised job vacancies specified in a notice, and he therefore has failed to satisfy the activity test on the second occasion.
On the evidence the applicant failed to attend his interview, and did not take part in the labour market program required by the Job Network Provider. He has given evidence that he did not have the phone number necessary to make alternative arrangements. In my view, however, even if he had lost the telephone number from his grandmother's message bank, and failed to take the letter relating to the appointment with him to his employment, he could have contacted Centrelink or the Job Network Provider, if he had taken reasonable steps during the relevant fortnight when he worked for only 16 hours as declared at [T7/52]. He earned only $90 in that fortnight. Such employment was not sufficient to excuse him from participation in his Job Search Training.
I do not accept his submission that he was required by his authoritative, elderly German employer to attend at the vineyard from 7.00am to 4.00pm when he worked, allegedly, only 16 hours in the fortnight. I am satisfied, on the evidence, that the applicant failed the activity test, and therefore, pursuant to section 624(1) of the Act, Newstart Allowance is not payable. As a result of sections 624(1A), 644AA and 644AE of the Act, an 18% reduction applies for 26 weeks upon Newstart Allowance again becoming payable.
Regarding the second breach, the applicant, in accordance with the requirement to satisfy the activity test, was required to approach at least 10 employers each fortnight. The Job Seeker Diary he provided confirms that he did not do this. In respect of the first fortnight, one of the names was his own, another his brother, and another his grandmother. Over a period of six fortnights, he failed to provide details of 10 employers per fortnight he had approached. He maintains that he completed the Diary to the best of his ability, but he has no satisfactory, comprehensible explanation, in my view, as to why he failed to comply with the requirement.
I am satisfied on the evidence that the applicant has not taken reasonable steps to comply with the notice provided to him, and has failed the activity test. Having failed the activity test, Newstart Allowance is not payable, and the effect of the second breach, within a 2-year period, is a rate reduction of 24%.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  17 April 2002
Date of Decision  17 April 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr R Kilderry
Solicitor for the Respondent    Administrative Law Team