Doan and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1044

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1044

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2006/582

GENERAL ADMINISTRATIVE  DIVISION

Re:        CHERIE LAURA TONG DOAN

Applicant

And:       SECRETARY,
  DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             5 December 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – newstart allowance – failure to attend interview with job network provider – unsuccessful attempt to change providers ‑ rate reduction period – 16 per cent reduction imposed for 13 week period – decision affirmed

Social Security Act 1991 s 593, 601, 605, 644, 644B, 644H

Social Security (Administration) Act 1999 s 63

REASONS FOR DECISION

5 December 2006  Regina Perton, Member

1.      Cherie Doan, a recipient of newstart allowance (NSA), is in dispute with Centrelink, which administers NSA for the Department of Employment and Workplace Relations.  Ms Doan was not happy with the job network member she had been assigned by Centrelink and sought a change to another provider.  Ms Doan’s preferred provider did not agree to accept her as its client.  After two unsuccessful attempts to change to the alternative provider, Centrelink directed Ms Doan to attend an interview with the job network provider of its choice.  The purpose of the interview was to negotiate a Job Search Plan which would form part of her Newstart Activity Agreement.  Ms Doan did not attend the interview.   

2.      After initially suspending Ms Doan’s NSA payments due to her failure to attend the interview, Centrelink gave Ms Doan a further opportunity to change to her preferred provider.  Her preferred provider again refused to accept her as its client.  Centrelink restored Ms Doan’s NSA payments but imposed an administrative breach rate reduction of 16 per cent for a period of 13 weeks from 6 October 2005.  It is the imposition of that rate reduction which is the subject of this review. 

3.      The issue before the Tribunal is whether the sanction imposed on Ms Doan, namely a reduction in the rate of NSA for 13 weeks, for failing to attend the interview with the job network member, to establish an activity agreement, was correct.   

BACKGROUND

4.      Ms Doan resumed receipt of NSA payments on 1 March 2005.  On 28 April 2005, Ms Doan requested a transfer from her assigned job network member, AMES Employment (AMES) to IPA Personnel (IPA).  Both organisations have offices in the suburb in which Ms Doan lives.  For reasons it has refused to divulge, IPA has repeatedly refused to accept Ms Doan as a client.   

5. In light of Ms Doan’s inability to obtain a transfer to IPA, Centrelink scheduled an interview for her with AMES on 26 August 2005. Centrelink wrote to Ms Doan on 13 August 2005 to advise her of the details and purpose of the interview. That purpose was to negotiate a new Job Search Plan which would form part of an activity agreement set out in the Social Security Act 1991 (the Act).  Centrelink informed Ms Doan that if she did not attend the interview, her NSA may be stopped or reduced for a period of time. 

6.      On 24 August 2005, Ms Doan wrote to the person at AMES with whom she was to have the interview, stating:

…

By the law, it’s my choice to register with a Job Network member and it’s my choice to select a Job Network employment consultant.  Neither Centrelink nor Job Network could and can stop me to do this.  I confirm that I did not/do not register with… AMES Job Network…I emphasise that I registered/register with…IPA Network and I will select an employment consultant for me.

I am sorry that I do not want to take more time on this as I am very busy looking for work.  If you have got anything new, contact with me by mail or email. I will not response to any message from any Job Network… showing nothing new.  Please do not bother me while I am concentrating on looking for work…

7.      Ms Doan did not attend the interview.  On 6 September 2005, Centrelink advised Ms Doan that her NSA was stopped temporarily from 6 September 2005.  Following discussions with Centrelink staff on 14 September 2005, Ms Doan was given a further seven days to transfer from AMES to IPA or any other job network member.  She was informed that if the transfer did not take place within seven days, her …payment will be suspended & a breach will be imposed.  On 15 September 2005, Ms Doan wrote to IPA stating that Centrelink had advised her to contact IPA again for a transfer from AMES to IPA:

…Today I come to your office fro this transfer.  If you still do not accept me in your office, please give me a letter or a report clearly saying in details the reasons why you do not accept me (everything in writing is a formal way).  I cannot proceed with the next step until I receive the letter above.

By the law, it’s my choice to register with a Job Network member and it’s my choice to select a Job Network employment consultant.  Neither Centrelink nor Job Network could and can stop me to do this.

I am sorry that I do not want to take more time on this because I am very busy looking for work.  Please do not bother me while I am concentrating on looking for work.

8.      On 22 September 2005, Centrelink decided to apply an administrative breach rate reduction of 16 per cent for a period of 13 weeks if Ms Doan reapplied for NSA on or before 5 October 2006.  Ms Doan was informed by letter that day that the breach penalty could be stopped if she took up one of a number of options including undertaking a Work for the Dole program or if she complied with the original request to attend an interview.  Ms Doan discussed the matter with Centrelink on 30 September 2005, 5 October 2005 and 6 October 2005.  On 6 October 2005, Ms Doan’s NSA payments were restored. 

9.      On 10 January 2006, an authorised review officer (ARO) at Centrelink affirmed the decision to apply the breach penalty.  The Social Security Appeals Tribunal (SSAT) did likewise on 21 June 2006.  On 10 July 2006, Ms Doan sought review in this Tribunal. 

EVIDENCE

10.     Ms Doan told the Tribunal that she is entitled to choose her preferred job network member.  She provided the Tribunal with a Centrelink document given to her on 20 March 2006 which states, amongst other things, that:

…

Job Network is a free Australia-wide network of organisations dedicated to helping you get and keep a job.

Not all Job Network members are the same so it is important that you choose a Job Network member that suits you…

…

If you are not receiving financial assistance and just wish to register to find a job you can approach the Job Network member of your choice directly.  Otherwise, your local Centrelink can refer you to a Job Network member of your choice.

…

How to use Job Network

√Choose with Job Network member is best for you.  This will usually be done when you register with Centrelink.

√Attend the appointment which has been booked for you.

√Keep in contact with your chosen Job Network member by visiting their office or phoning them…

11.     Ms Doan said that she had not chosen AMES as her job network member.  She had chosen IPA.  That was why she did not attend the interviews scheduled for her at AMES.  She sent a letter to AMES explaining why she was not going to the interview.  Ms Doan said that she had not attended subsequent scheduled interviews at AMES as she was still awaiting a written response to her request to IPA for the reasons they had not accepted her as their client.

12.     Centrelink provided copies of correspondence in which Ms Doan was directed to attend interviews at a time and place selected by Centrelink.

CONSIDERATION OF THE ISSUES

13.     There have been significant amendments to the Act since this dispute arose.  However, in this matter, it is the law as in force between August and October 2005 that is being applied. 

14. Section 593 of the Act, in force at the time of this dispute, set out the qualifications for NSA. One of the requirements was that a recipient must satisfy the NSA activity test (s 601). Section 605(1) of the Act said that a person who is receiving NSA may be required to enter into an NSA activity agreement, except in certain limited circumstances that do not apply to Ms Doan. Section 605(3) directs that a person is to be given notice of the requirement to enter into an NSA activity agreement and notice of the places and times at which the agreement is to be negotiated. The Tribunal is satisfied that notice was given to Ms Doan on 13 August 2005 advising her to attend at AMES on 26 August 2005.

15. Section 63(3) of the Social Security (Administration) Act 1999 (the Administration Act) states that a person who is on NSA may be given notice to:

(a)attend an office of the Department; or

(b)contact the Department; or

(c)attend a particular place for a particular purpose; or

(d)give information to the Secretary;

…

16. Section 63(5) of the Administration Act allows for the imposition of an administrative breach rate reduction period if there is a failure to comply with a notice given under s 63(3) of the Administration Act.

17. The pertinent rate reductions at the time of the breach were set out in s 644B of the Act. The period of rate reduction was 13 weeks (s 644B(1)). There are circumstances where the breach rate could be reduced to 8 weeks or not applied at all (ss 644B(1A), (1B) and (2)).

18. Section 644B(1A) of the Act, which shortens the period to 8 weeks, does not apply to Ms Doan, as this requires, amongst other things, for the person to have undertaken the activity about which they had been given notice within 8 weeks after the start of the breach period. Ms Doan did not attend for an interview at AMES within 8 weeks of 6 October 2005. This reduction in the period is therefore not available to her.

19. Section 644B(1B) of the Act applies to a failure to comply because of reasons outside the person’s control. In this instance, Ms Doan deliberately refused to attend the interview so this reduction to 8 weeks is not available to her. The Tribunal notes that Ms Doan has attempted to have IPA provide written reasons to her for its refusal to accept her as a client. She has submitted that IPA’s failure to provide reasons is a factor outside her control. However, the Tribunal is not satisfied that this was a sufficient reason for Ms Doan to refuse to attend the interview. The Tribunal is of the view that Ms Doan could have attended the interview.

20. Section 644B(2) allowed for a failure to comply where the person was at least 50 years of age at the time of the administrative breach and within 13 weeks the person either attended as originally required to do or complied with an alternative requirement. Ms Doan was 50 years of age at the relevant date; but did not meet the requirement imposed by Centrelink. Hence she is unable to access this provision.

21.     Ms Doan decided that she does not want AMES to be her job network member.  However, if IPA were not prepared to accept her as a client, she is unable to insist that they do so.  The Tribunal is satisfied that Centrelink was entitled to direct Ms Doan to attend at AMES.  She failed to do so.  It was her deliberate choice to disregard the direction.  She was warned of the consequences. 

22. Section 644H(2) of the Act indicates that the administrative breach rate to be imposed is16 per cent. The Tribunal finds that the breach rate reduction was appropriately imposed.

23.     The Tribunal notes that Ms Doan at all times conscientiously kept in touch with Centrelink and AMES and advised them of her reasons for failing to attend her scheduled interview.  She has been consistent in arguing that she is unable to resolve her situation until IPA provides her with reasons for not accepting her as a client.  She has also applied for many positions and appears motivated to work at whatever might be available. 

24. It is regrettable that IPA’s management has not taken the time to write a short letter to Ms Doan explaining its reasons. Had IPA done so when Ms Doan first asked the organisation to do so, Ms Doan may not have found herself in this predicament. However, IPA’s failure does not provide a justification for Ms Doan to refuse to attend the interview with AMES as directed by Centrelink. Finally, regardless of what any Centrelink document may say, a direction under s 63 of the Administration Act overrides Centrelink’s policy of allowing a person to attend a job network member of her choice.

DECISION

25.     The Tribunal affirms the decision under review.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

signed:     Olympia Sarrinikolaou

Clerk

Date of hearing:  23 November 2006

Date of decision:  5 December 2006
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr T. Noonan, Centrelink Legal Services