Deng and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 631

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 631

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6017

GENERAL ADMINISTRATIVE DIVISION		)
Re		Cai He Deng

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date of Decision                 10 August 2010

Date of Written Reasons   23 August 2010

Place  Sydney

Decision The decision under review is set aside.

..............................................

Jill Toohey
  Senior Member

CATCHWORDS – SOCIAL SECURITY – non-payment period – whether applicant had reasonable excuse for refusing or failing to accept job offer – Tribunal satisfied that applicant had reasonable excuse – decision under review set aside.

Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

23 August 2010 Senior Member Jill Toohey           

1.      These written reasons are provided at the request of the respondent.  They reflect the transcript of the hearing with amendments only for clarity of expression.  The reasons for the decision have not been changed from those delivered orally at the conclusion of the hearing.

Background

2.      Mrs Deng seeks review of a decision made by Centrelink, and affirmed by the Social Security Appeals Tribunal, to impose an eight week non-payment period on her parenting payment.  The non-payment period was imposed on the ground that Mrs Deng had committed a serious participation failure for failing to accept an offer of suitable employment. 

Relevant legislation

3.      The relevant legislation is the Social Security Act 1991, the Social Security (Administration) Act 1999, and a Determination made by the Secretary of the Department for Families, Housing, Community Services and Indigenous Affairs about what is a reasonable excuse. 

4.      The important parts of the legislation are that the Secretary may determine the person has committed a serious failure if she or he refuses or fails to accept an offer of suitable employment but a person must not be found to have committed a serious failure if they have a reasonable excuse. 

Consideration of the evidence

5.      Mrs Deng does not dispute that a cleaning job, such as the one that she was offered on 10 September 2009, was suitable employment for her.  The question is whether she had a reasonable excuse for refusing the offer of that employment.

6.      For the following reasons, I am satisfied that Mrs Deng did have a reasonable excuse. 

7.      In deciding whether a person has a reasonable excuse, I must take into account matters that are set out in the Secretary's Determination, but I am not limited by those matters as to what I can take into account.  Having said that, when you look at the matters that are set out in the Determination, it is clear that a person must have a very good reason for refusing a job offer.

8.      Mrs Deng says she believed she was going to a cleaning job at a medical centre on 10 September 2009.  She says the position was represented to her as such by her case manager, and that is consistent with the advertisement for the position, which was for a cleaner for a medical centre involving domestic cleaning and general cleaning. 

9.      I understand that Mrs Deng did not see the actual advertisement until she came to a conference at this tribunal.  However, from what I understand of what Mr Rado, who appeared on behalf of the Secretary, said, that would not be unusual because the position would have been described to her by her case manager.  There is nothing to suggest that Mr Can, the case manager, described the position as anything other than cleaning at a medical clinic. 

10.     I accept Mrs Deng's evidence about what she says happened when she arrived at the medical centre on 10 September 2009.  For whatever reason, it turned out that the cleaning was actually at a private house separate from the clinic.  In other words, the position was not as it had been represented to her. 

11.     I accept Mrs Deng's evidence that the person at the clinic said she was not to discuss the position.  I accept that Mrs Deng was truthful about that and there is no evidence otherwise.

12.     I accept in those circumstances that Mrs Deng was somewhat suspicious about the position and was concerned about her own position if she undertook the work.  Her suspicion was reasonable given the evident problems she had had with her case manager, Mr Can.  That’s not to say that Mr Can has done anything wrong.  That’s not a matter for me to determine.  But the background and their history is relevant to why it was reasonable for her to be mistrustful about the cleaning position.

13.     Mrs Deng’s concerns about Mr Can appear to have some foundation, and I say that without making any decision about what actually happened when a previous non-payment period was imposed, but the Centrelink notes show that Mrs Deng’s payment was reinstated on that occasion because Mr Can had not given sufficiently clear or accurate information about her conduct at the job interview on the earlier occasion.

14.     The notes indicate that Mr Can reported that Mrs Deng lacked motivation and refused to accept an earlier position on 31 July 2009.  I accept Mrs Deng’s evidence about what happened that day.  It seems there was in fact no position available and evidently Centrelink accepted that. 

15.     It is against that background that I find that Mrs Deng’s suspicions were not unreasonable and it was not unreasonable to not accept the position because of those concerns. 

16.     It was put to Mrs Deng by Mr Rado that she might have complained at the time, and that there were avenues available to her to change her case manager if she was not happy with him.  That would be a fair thing to say if she had not made any complaint because there might be reason to doubt her account.

17.     However, I am satisfied that that is, in effect, what Mrs Deng did when she and her husband went to the provider on the same day and when she returned with her son two days later, and I note that she now has a new case manager. 

18.     The Secretary says, and I agree, that there were some other factors in Mrs Deng’s decision to refuse that position.  She agrees that she was concerned about how her daughter would get to school, and the evidence is that her employer agreed to a later start date to accommodate her concerns.  If that was the sole factor or a substantial factor in her decision to refuse the position, her application would fail, but I am satisfied it was not a substantial reason.

19.     Mrs Deng also says it was unreasonable to travel from Cabramatta to Burwood each day for three hours’ work because the cost made it not worth taking the position.  She says the job provider agreed with her.  If this were the only, or the substantial reason for refusing the position, her application may or may not succeed.  It would depend on all the evidence about the time and the cost involved in travelling.  However, I do not think it necessary to go into this aspect in more detail because I am satisfied that the principal reason Mrs Deng refused the offer was her suspicion about the position itself and her concern about her own position should she take it on in those circumstances. 

Conclusion

20.     I am satisfied that Mrs Deng had a reasonable excuse for failing to accept the position on 10 September 2009.  It follows that she did not commit a serious failure and that the eight-week non-payment period should not have been imposed.  So my decision is that the decision under review should be set aside.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

Signed: …………….………………

Diana Weston, Associate

Date of hearing:  10 August 2010

Date of decision:  10 August 2010
Date of written reasons:   23 August 2010

Applicant:Self-represented

Representative for the Respondent:        Mr Ante Rado, Centrelink Advocacy Branch