Davitt; Secretary Department of Employment and Workplace Relations and

[2007] AATA 1074

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1074

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/552

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And BRIAN DAVITT

Respondent

DECISION

Tribunal Mr Michael Griffin, Member

Date21 February 2007

PlaceSydney

Decision The decision under review is set aside. In substitution thereof, the Tribunal decides that the original decision to impose a New Start Allowance activity test breach reduction period is the correct and preferable decision.

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

Mr Michael  Griffin
  Member

Administrative Appeals Tribunal

 

 

ABN 90 680 970 626  Sydney REGISTRY
 

DECISION AND REASONS FOR DECISION [2007] AATA 1074

ADMINISTRATIVE APPEALS TRIBUNAL           )

)     No N2006/552

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And BRIAN DAVITT

Respondent

DECISION (CORRIGENDUM)

TribunalMr M Griffin, Member

Date22 February 2007

PlaceSydney

WHEREAS:

1.   The Tribunal released a decision in this matter, which was dated 21 February 2007.

2. The Tribunal wishes to amend the decision so as to rectify an error contained in the Certification Box so as to reflect the correct presiding member. To do so with the least cost and inconvenience to the parties, the Tribunal will exercise the power under s43AA of the Administrative Appeals Tribunal Act1975.

3.   Now the Tribunal therefore orders that the Certification Box should read as follows:

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Michael Griffin, Member

…………[sgd]………

Mr Michael Griffin

Member

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - breach of activity test - reasonable steps to comply - illness - decision set aside

LEGISLATION

Social Security Act 1991

REASONS FOR DECISION

21 February 2007	Mr Michael  Griffin, Member
INTRODUCTION

1.        The Secretary seeks review of a decision of the Social Security Appeals Tribunal (‘SSAT’). The SSAT set aside a decision made by an Authorised Review Officer (‘ARO’) to impose a Newstart Allowance (‘NSA’) activity test breach reduction period.

HISTORY

2.      Mr Davitt was first granted NSA in December 1998. In November 2005 Mr Davitt signed a NSA participation plan with WorkDirections Australia. Mr Davitt did not attend three activities set out in the WorkDirections participation plan. Centrelink then applied an activity test breach penalty, of an 18% rate reduction, for the period 13 December 2005 to 12 June 2006. An ARO affirmed that decision. Mr Davitt sought review of that decision by the SSAT.

RELEVANT LEGISLATION

3.        The Social Security Act 1991 (‘the Act’) relevantly provides, at Section 593(1)(e) and (f), for the Secretary to require a person to enter into a Newstart Activity Agreement and for the person to take reasonable steps to comply with the terms of the agreement.

4. Section 593(2A) of the Act deals with what constitutes reasonable steps and states:

“For  the purposes of paragraph (1)(f) or (2)(f), a person is taking reasonable steps to comply with terms of a Newstart Activity Agreement unless the person failed to comply with the terms of the agreement and:

a)    the main reason for failing to comply involved a matter that was within the person’s control; or

b)    the circumstances that prevented the person from complying were reasonably foreseeable by the person”

5. Section 626 of the Act is concerned with penalties for breach of a Newstart Activity Agreement and specifies that, when a person fails to participate, they breach their Newstart Activity Agreement and therefore an allowance is not made payable to them for a period.

ISSUE

6.        The issue for the Tribunal to decide is whether or not Mr Davitt took reasonable steps to comply with the terms of the WorkDirections participation plan which constituted his Newstart Activity Agreement.

EVIDENCE

7.        Mr Davitt’s evidence is that he was too ill to attend the programmed activities, which consisted of a computer training session and two days at Job Club. The computer training was scheduled for 18 November 2005, the day after he signed the WorkDirections participation plan.  The Job Club days were scheduled for 21 and 23 November 2005. Mr Davitt said he experienced an asthma attack on the morning of 18 November 2005 and could not contact WorkDirections to advise them of his inability to attend these activities for several weeks. Mr Davitt said his telephone was disconnected and he could not go out of the house because of the risk to his health from the weather and, in any event, the public telephones in his area were usually vandalised and not working. He said he did not go to a doctor because he could not afford to see a doctor as those in his area do not bulk bill. Mr Davitt said he did not drive straight to a hospital because he was used to self-treating in such circumstances

8.        The WorkDirections officer, Ms Shiels, who prepared the participation plan with Mr Davitt on 17 November 2005, gave oral evidence by telephone and read to the Tribunal her contemporaneous notes of her subsequent meeting with Mr Davitt at her office on 1 December 2005. Ms Shiels said Mr Davitt did not mention any health problems in his discussions with her on 17 November 2005. Her contemporaneous notes of the meeting on 1 December 2005 make no reference to health problems. The notes refer only to Mr Davitt stating that he was not aware of his obligations under the participation plan and his belief that Job Club was optional.

9.        Ms Shiels said she had rung Mr Davitt after his failure to attend the relevant activities and left messages on his telephone answering service asking him to contact her. She said she received no response to those messages. Mr Davitt denied saying the things recorded in Ms Shiels notes about being unaware of his obligations and about saying Job Club was optional. Mr Davitt previously told the SSAT his telephone service had been disconnected for several weeks. He denied having an answering service. Ms Shiels said she specifically recalled the answering service because of the distinctive nature of Mr Davitt’s voice message on the service.  Mr Davitt then conceded that he had an answering service with a distinctive message, that his telephone was restricted to incoming calls only at the time and he could not recall receiving any message from Ms Shiels.

10.      The Centrelink file also records a conversation between a Centrelink officer and Mr Davitt on 29 November 2005, that is, two days prior to his meeting on 1 December 2005 with Ms Shiels. The Centrelink file records Mr Davitt stating to the officer “…must have overlooked the course and the other thing (Job Club) I thought was not mandatory”.

11.      Mr Davitt produced a medical certificate to Centrelink stating he had been a patient since February 2006. The medical certificate gave a diagnosis of “Bronchio-Asthma” and “Exacerbation of existing condition” which certified him unfit from 20 March 2006 to 20 July 2006.  Mr Davitt said this was a chronic condition from which he had suffered since childhood. He said he self treats by using a ventilator and resting.  He said on 18 November 2005 he had arisen early in the morning in an attempt to get work but the attempt was unsuccessful because he became ill. He said he had to stop several times to control his breathing and went straight home to use the ventilator and rest. He said he was very ill for several weeks and could not leave the house.

12.      Mr Davitt had discussions with Ms Shiels’ supervisor on 1 December 2006 who accepted his explanation of the illness and the supervisor told the SSAT that Mr Davitt had been coughing at that meeting. Mr Davitt gave evidence of his previous and subsequent compliance with activity agreements and of his current favourable classification under the Centrelink policy in respect of participation and “work for the dole”. Mr Davitt said he did not disclose his health problems because he felt this would prejudice his chances of obtaining employment.

DISCUSSION AND FINDINGS

13.      Mr Davitt claims to have been too ill to attend the scheduled activities and too ill to advise WorkDirections of his non-attendance. Ms Shiels and the Centrelink file both record him as stating that he was not aware of his obligations and that he believed Job Club was not mandatory. There is evidence that he told Ms Shiels’ supervisor that he was ill at the time as well as medical evidence of a respiratory condition.

14.      I accept that Mr Davitt has the claimed medical condition and that he told the supervisor of the medical problems after speaking with Ms Shiels. However, I am satisfied that Ms Shiels who met Mr Davitt for the first time on 17 November 2005 and who took and kept contemporaneous notes, of that meeting and of her later discussion with Mr Davitt on 1 December 2005, is a credible witness and therefore prefer her evidence on this issue. 

15.      Significantly, the substance of Ms Shiels notes are consistent with the file record of the Centrelink officer who spoke to Mr Davitt on 29 November 2005. I also prefer the evidence of Ms Shiels about the messages she left for Mr Daviit which he denied receiving. His initial evidence was that his telephone service had been disconnected and he did not have an answering service. However, he modified this evidence after Ms Shiels mention of his distinctive message on the answering service. I find Mr Davitt’s evidence about his illness at the relevant time to be unreliable. I find that the main reason for Mr Davitt failing to comply with the participation plan was within his control. I find that Mr Davitt did not take reasonable steps to comply with the terms of the WorkDirections participation plan which constituted his Newstart Activity Agreement.

Decision

16.      The decision under review is set aside. In substitution thereof, the Tribunal decides that the decision to impose a Newstart Allowance activity test breach reduction period is the correct and preferable decision.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President

Signed:         ................[sgd]............................................................
  Associate

Date/s of Hearing  21 December 2006 and 15 January 2007
Date of Decision  21 February 2007
Counsel for the Applicant         Joseph Gersten
Counsel for the Respondent     Self represented