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

[2010] AATA 1073

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1073

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2744

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHERIE DOAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date13 December 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review. 

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

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2010/2744

DOAN

and

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

MONDAY, 13 DECEMBER 2010

MS C. DOAN appears in person

MR T. DE URAY appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS               [3.26 pm]

MR G.D. FRIEDMAN:    The matter before me is a decision by the Social Security Appeals Tribunal, dated 10 June 2010, which affirmed two decisions of Centrelink.  [The f]irst was on 2 November 2009, to apply a connection failure to Ms Doan’s Newstart allowance payments in respect of an incident on 2 October 2009, and the second one, the decision of an Authorised Review Officer of Centrelink dated 24 February, to cancel Ms Doan’s Newstart allowance payments from 16 January 2010.

…[T]here is …[little]… dispute about the facts in this matter.  They are that Ms Doan was in receipt of Newstart allowance and that she had signed an Employment Pathways Plan (an EPP) on 2 July 2009, and that was valid through until 2 January 2010.  There is no real dispute that she failed to enter an EPP on 2 October 2009 and that she received an instalment of Newstart allowance for the period including 2 October 2009.  She said that she refused to sign the plan because it did not provide financial assistance in relation to a web design course she wanted to do, and she said that she is completing a teaching qualification … and the purpose of the web design course was for her to design her own advertisements when advertising for students, either as a tutor, or running her own classes in another capacity.  She believed that the web design course was relevant to the requirements for financial assistance by the employment provider.  That view is not shared by the employment service provider, which maintained that that particular web design course was not relevant to her job-seeking activities.

Ms Doan made it very clear, both to the Social Security Appeals Tribunal, and here before me today, that the provision of financial assistance and resource assistance to her was unfair.  The restrictions were unfair because other people were gaining virtually unlimited access to the resources - photocopying and internet access - and she gave an example of a person who had photocopied pages relating to home insulation, which she said, were not relevant to that person’s job-seeking activities.  It was unfair that some people were allowed to get away with doing whatever they wanted, but Ms Doan felt that she was restricted unnecessarily.

There is no real dispute that she failed to enter into an EPP on 19 January 2010, and the documents suggest that she was notified by telephone on 18 January 2010 of the requirement to attend an appointment on 19 January and enter into an EPP, and that she was given 48 hours after her appointment to consider whether she wished to enter into the EPP and she said then that she didn’t enter into it because it did not provide her with unlimited access to job search facilities, in particular the photocopier and access to the job network office facilities.

The job network provider wrote a letter, dated 12 August 2009, advising her that there were reports that she had been photocopying pages from textbooks related to religion and other subjects, not specifically related to job-seeking.  Ms Doan said that, because she was seeking to concentrate on providing teaching services to people of Asian background, that she needed to become more familiar with cultures of that region, and Buddhism was one of the subjects that she was seeking to familiarise herself on and she believed that photocopying pages of a textbook on Buddhism were directly relevant to her job-seeking activities.

There is a further letter from the job service provider, dated 5 January 2010, in which it advised that she had continued to use job search facilities for purposes other than job searching, and a further letter dated 11 January 2010 referred to an incident on 8 January 2010, where the staff were required to ask her to leave the premises due to her persistence in accessing job search facilities at times that were not prearranged, despite [the] earlier letter advising of those requirements, and the police were contacted.  Ms Doan stated that she had provided a statutory declaration indicating that there was disagreement between certain employees at the job service provider, in that one person had agreed to access in the afternoons and the other person had not agreed to access.  She said she had done nothing wrong and that there was no real necessity for the police to arrive and she feels that she was treated unfairly in that instance as well.

So based on that material, I find that Ms Doan was in receipt of Newstart allowance;  that she entered an EPP on 2 July;  it was valid till 2 January 2010;  that she refused to enter into a new EPP on 2 October, because it did not provide for financial assistance to a web design course;  … that she was notified by telephone on 18 January 2010 of the requirement to attend an appointment on 19 January to enter into an EPP;  … [that] she was given 48 hours afterwards to consider whether she wished to;  … [that] she refused to enter the new EPP on 19 January 2010 because it did not provide her with unlimited access to job search facilities;  …[that] she was sent a letter dated 12 August 2009 advising she had been photocopying pages of the textbook relating to religion, not related to job searching requests;  … that she had continued to do so and that was set out in a letter dated 5 January by the job network provider;  and I have already referred to the letter of 11 January outlining events of 8 January in which she was asked to leave the premises.

…[T]hey are the facts.  The law is contained in the Social Security Act and the Social Security Administration Act.  The latter Act is the Social Security Administration Act 1999.  Newstart allowance is covered in section 593 of the Social Security Act and [section] 593(1)(e) refers to the qualification for Newstart allowance if the person is required by the Secretary to enter a Newstart Employment Pathway Program in relation to the period and the person enters into that plan.  She was required to satisfy the activity test; that is set out in section 601 of the Social Security Act.  She was required to be actively seeking, and willing to undertake, suitable paid work and section 601(4) provides that the person satisfies the activity test and the person complies with the terms of an EPP that is in force, and section 601(5) provides that a person cannot be taken to have satisfied the activity test for any period in which they failed to comply with a requirement of the EPP.

In relation to 2 October 2010, section 605 of the Act requires that a person is required to enter an EPP when there is one not already in force and in this case, her EPP was valid until 2 January 2010.  On 2 October 2009, she was presented with a new EPP, which she failed to sign, and she was required to enter into the new EPP unless she had reasonable excuse not to do so, and my finding of the facts was that she refused to enter into a new EPP on 2 October 2009 because that EPP did not provide for financial assistance in relation to a web design course she wanted to do.  I note that there is some disagreement, between herself and the employment service, as to the relevance of that course in relation to her job searching and that [it] may well be her view that web design was necessary for her but, in my view, that, in itself, is not sufficient as a reasonable excuse for failing to enter into an EPP.

In my view, the decision about what is the best use of the limited resources is probably a matter for the employment service provider, and in this case, the employment service provider has made what I consider to be a reasoned and reasonable decision about how it uses its resources, and although Ms Doan disagreed with them, in my view, that does not constitute a reasonable excuse for refusing to enter into an EPP.

Section 42E(4)(c) of the Administration Act provides further limitation on the circumstances in which a connection failure may be applied and subsection[s] (c)(i) and (ii) … [state]:

...the Secretary must not determine that …[a] person commits a connection failure if:

…

[(c) both of the following apply:

(i) the person’s failure is a failure to comply with a requirement under section 605 of the 1991 Act to enter into an employment pathway plan;
(ii) a newstart allowance is not payable to the person for the instalment period in which the person commits the failure because of section 615 of that Act:…]

...

In this case, I have found that a failure to comply with a requirement under section 605 to enter another EPP instead of the existing one and therefore she satisfies section 42[E]c(i).  However, she was paid Newstart for the instalment period, which included 2 October 2009, therefore she does not satisfy subparagraph (ii).  So I find that Ms Doan cannot use section 42E(4) to prevent the Secretary determining that she committed a connection failure on 2 October 2009.  For those reasons, I find that she committed the connection failure on 2 October 2009 in relation to her Newstart payments and therefore that supports the decision made by the Authorised Review Officer of 2 November 2009 as affirmed by the Social Security Appeals Tribunal.

In relation to the cancellation of Newstart allowance, section 593 of the Act sets out the general qualification for Newstart allowance and that includes a provision that at all times when the EPP is not in force, a person must be prepared to enter into such a plan, and she previously entered one on 2 July 2009.  It was valid until 2 January 2010.  She refused to enter a new EPP on 19 January 2010 because the plan that was outlined to her by the employment service provider did not give her unlimited access to job search facilities.  …  [S]ection 605(3) provides a person who is required to enter an EPP must be notified of the requirement and the place, and I find that she was notified and she was given 48 hours to determine whether she wished to enter into the EPP.  And the terms for EPPs are dealt with under section 606 of the Act.

And the kinds of requirements … that [EPPs] … must not contain is in the Social Security (Employment Pathway Requirements) (DEEWR) Determination 2009 (No. 1).  I am satisfied that none of … [the] … matters specified in that determination is relevant to the matter before me.  And subsection 4 sets out a range a factors that I have to consider when considering a person’s capacity to deal with the requirements of an EPP.  I find that there is no suggestion here that Ms Doan did not have the capacity to comply with the requirements set out in the EPP.  It is rather that she merely wished to have unlimited access to job search facilities and that was not provided for in the EPP that was proposed to her.

In my view, it is reasonable for limited resources of an employment services provider to be used in a fair and reasonable manner at the discretion of the employment service provider.  I do not accept Ms Doan’s contention that she ought to be given unlimited access to job search facilities from the employment service provider.  I do not accept that because other people were allowed to do so is any reason for Ms Doan to be allowed to do so.  It would be like saying if the police were looking for speeding cars and only chose every tenth car, then that would be unfair on the driver who was chosen.  That is just a fact of life.  Some people are selected for various things – for checking up, for monitoring – it doesn’t mean that everyone else who gets away with it makes it unfair on the person who was selected.  That is just the luck of the draw in my view.  If other people got away with photocopying whatever they liked, that does not justify Ms Doan having unlimited access in my view.

It is my conclusion that on 19 January 2010, she was not prepared to enter into an EPP.  There was no other EPP in force, so on that basis, she failed to qualify for Newstart allowance under section 593(c) of the Act and section 80 of the Administration Act provides that a person’s social security payment must be cancelled or suspended where a person is not qualified for the payment.  Therefore, I find that her Newstart allowance payments were correctly cancelled as set out in the Authorised Review Officer’s decision of 24 February 2010 and as set out in the Social Security Appeals Tribunal decision on 10 June 2010 and, as a consequence of those findings, I affirm the decision under review.

END OF EXTRACT  [3.44 pm]