Devers and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 614

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 614

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2009/1460

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID DEVERS

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

  Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:17 July 2009

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.

(sgd) GD Friedman

Senior Member

TRANSCRIPT OF PROCEEDINGS

O/N 113043

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2009/1460

RE DEVERS

and

SECRETARY, DEPARTMENT OF EDUCATION,
EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

MONDAY, 17 JULY 2009

MR D. DEVERS appears in person

MS A. BRAMLEY appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:   Well, in this matter there is no real dispute on the facts and they are that on 10 July 2008, 10 September 2008 and 16 December 2008 Mr Devers did not comply with his requirements.  The first and the third of those, he didn’t attend the appointments and on the second, he attended but didn’t sign an activity agreement.  It is clear that Mr Devers is unhappy with the service provided by the employment providers or the employment job seeker agencies and he has made it very clear that he doesn’t want to participate in work-for-the-dole schemes because he feels it is Centrelink’s role and the agency’s role to find him a full-time job.   He doesn’t really believe that there is any great purpose to be achieved by an agency giving him short-term tasks in areas where he doesn’t really have any interest or, on other occasions, any great expertise.   So I accept that that is Mr Devers' firm view. 

I also accept that in relation to the first appointment on 10 July, he had spoken previously to St Laurence agency and didn’t feel that they were able to offer them anything.  He also said that travelling in from Lorne was quite a task for him and, basically, he didn’t feel that anything would be achieved by him attending. 

On the second appointment, which is 10 September, he said that he turned up but the only things on offer were work-for-the-dole tasks such as cooking or working in a job recycling computers or something on those lines.  And he said that he would rather be doing something interesting and, once again, had no interest in participating in work-for-the-dole schemes and didn’t feel that the agency – that is Work Pathways – was offering any real assistance and that is why he didn’t sign. 

On the third occasion, on 16 December, he said that he was confused about the date and he thought that it was 17^th when, in fact, it was the 16^th.  When he told Centrelink in January  that he had to take his parents to a funeral that was probably on the Monday and he thought that the appointment was on the Tuesday.  But, in any case, he agreed that he didn’t contact the provider and, once again, he said – to use his own words “he got fed up” and he didn’t think that that agency was offering him anything and he said, in addition, he had other issues to consider.  He had medical problems, his parents required care and transport, and he was looking after them and helping them, plus he was looking for work, himself, and didn’t really have the time or the inclination to be contacting the service provider. 

So it is very clear as to Mr Devers’ general attitude to the whole situation and he feels that he has been left out by Centrelink and the agencies. Section 624 of the Social Security Administration Act 1999 states that:

A person commits a Newstart participation failure, if the person fails to comply with a requirement that was notified to the person –

and that includes a requirement to enter into a Newstart Activity Agreement.  Section 629(1) says:

A Newstart allowance is not payable to a person for eight weeks if the person commits participation failure on two or more occasions in a period of 12 months preceding the failure. 

And while I find that under section 624 Mr Devers failed to comply with the requirements on three separate occasions, those of 10 July, 10 September and 16 December 2008 – and really that is by his own admission that he failed to do that. The Act provides that - section 624(2) of the Act provides that:

A person will not be taken to have committed a participation failure if they have a reasonable excuse. 

Section 624(2)A says:

The Secretary must take into account the various matters that are in the relevant instrument, which is Social Security Reasonable Excuse, Department of Employment and Workplace Relations Determination 2006. 

That list includes various matters that might come within the definition of “reasonable excuse” such as: 

Living in non-permanent location; literacy and language skills;  illness, impairment or condition that requires frequent treatment;  any cognitive or neurological impairment;  psychiatric or psychological impairment;  drug or alcohol dependency;  any unforeseen family or caring responsibilities;  death of a family member;  release from gaol;  etcetera. 

Section 624(3) provides that:

Those reasons don’t apply unless the Secretary is satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement. 

So what it means is that it requires more than just saying I was ill or I had an unforeseen requirement to look after a family member or I’ve cognitive or neurological impairment.  In other words, there really needs to be some evidence that those matters prevented the person attending the appointments or requirement to enter the activity agreement.  I accept what Mr Devers says, that he has an ongoing responsibility to his parents who are getting older and have a need for assistance for transport and cooking and various households tasks.  I accept that and I also accept that Mr Devers has his own issues in relation to medical matters.  I also accept that he has demands on his time.  He is trying to run a guitar pick-up making business.  He is looking for work and, apart from any requirements to look after his parents, he has got travel to and from Lorne when he is going down to Lorne, and other things in his life and going to various appointments.

I accept all that.  However, I am not satisfied that any of those matters, either on their own or collectively, could constitute a reasonable excuse for the participation failures.  For example, in Mr Devers’ own words, with the first one he didn’t see any need to attend.  So he didn’t really say that he couldn’t attend, he just didn’t think it was going to help him at all.  The second one, he didn’t like working for the dole.  That is why he said he didn’t sign the activity agreement.  It wasn’t because he couldn’t sign it, by virtue of any of these reasons in appearance or his own illness or anything like that. 

The third one, although he was helping his parents out on either the Monday or the Tuesday, he didn’t ring the provider and say, “Look, I couldn’t get there,” when it was established that the funeral didn’t really prevent him attending on that day.  He just didn’t really see any need to, which is basically the same reason that he gave to Centrelink.  He has said it today, he just didn’t see the need because he didn’t feel that the service providers were really doing much for him.  And while I can understand that, I can’t find that any of the reasons set out in the determination prevented him or constituted a reasonable excuse for committing the participation failures. three of them within a 12 month period.  So under section 629(1)A of the Act, the three participation failures lead to a consequence of a non-payment period of eight weeks.   So I have no alternative but to affirm the decision under review. 

END OF EXTRACT