Dudinski and Secretary, Department of Social Services (Social services second review)

[2021] AATA 2438

Dudinski and Secretary, Department of Social Services (Social services second review) [2021] AATA 2438 (22 July 2021)

Division:GENERAL DIVISION

File Number:          2020/3341

Re:Yaroslav Dudinski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:22 July 2021

Place:Melbourne

The decision under review is affirmed.

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

Member R West

Catchwords

SOCIAL SECURITY –– Newstart Allowance ––failure to enter into a new job plan – cancellation ––  decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268

Roberts v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 273

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Member R West

22 July 2021

1. This matter concerns the review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 1 May 2020, affirming the decision of an authorised review officer (ARO) dated 6 November 2019 to cancel the Applicant’s Newstart Allowance (NSA) with effect from 14 September 2016.

   BACKGROUND

2. The relevant history of the matter is as follows:

   (a)The Applicant was granted the NSA from 22 June 1992.

   (b)The Applicant signed a Newstart Employment Pathway Plan (job plan) on 26 May 2015 which required him, among other things, to contact two potential employers each fortnight between 26 May 2015 and 4 September 2015.[1]

   (c)Between April and September 2016 the Respondent’s agent, Matchworks, attempted to get the Applicant to sign a new job plan, but the Applicant refused to sign a plan which required him to contact more than four prospective employers per month.

   (d)On September 2016, an ARO of the Respondent cancelled the Applicant’s NSA with effect from 14 September 2016, by reason of the Applicant’s failure to enter into a new job plan (Original Decision).

   (e)On 6 November 2019, an ARO affirmed the Original Decision (ARO Decision).[2]

   (f)A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) and a decision affirming the ARO Decision was handed down on 1 May 2020 (AAT1 Decision).

   (g)The Applicant applied for a Second Tier Review of the AAT1 Decision by the General Division of the Administrative Appeals Tribunal on 2 June 2020.

   [1] T3 at pp. 12-13.

   [2] T12 at p.76.

3. A hearing in relation to the Second Tier Review was held by telephone on 5 July 2021. The Applicant was self-represented. The Respondent was represented by Ms Peta Heffernan, a solicitor with the Australian Government Solicitor.

   CONSIDERATION OF THE ISSUES

4. In conducting the Second Tier Review, the Tribunal has had regard to:

   (a)  The relevant provisions of the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth);

   (b)  The relevant policy in the period from May to September 2016 as stated in the Guide to Social Security Law (Guide);[3]

   (c)   The documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (T Documents); and

   (d)  The written and oral submissions of the parties.

   [3] The Tribunal is required to have regard to such policy unless there are cogent reasons to depart from it per Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

5. In his written submission and oral submission, the Applicant made widespread allegations of dishonesty and incompetence against numerous persons involved in the assessment of his entitlement to the NSA. The Tribunal is not in a position in these proceedings to properly consider such allegations and it does not need to do so to complete the review. For the purpose of the Second Tier Review, the Tribunal has had regard to the salient facts as established from the formal documents contained in the T Documents.

6. The Respondent cancelled the Applicant’s NSA on 20 September 2016 (with effect from 14 September 2016) by reason of the Applicant’s failure to enter into a new job plan.

7. The Applicant did not dispute that he had failed to sign a new job plan when required to do so by the Respondents agent, Matchworks. He stated that he had two reasons for not signing the job plan:

   (a)  It imposed a requirement that he contact more than 4 prospective employers each month which was unreasonable given his age and personal circumstances; and

   (b)  The case officer had not signed the job plan first.

8. The Applicant did not advance any cogent reason why he was entitled to refuse to sign the job plan when it had not been first signed by the case officer. The Tribunal does not accept this as a legitimate reason for not signing.

9. The Applicant asserted in his submissions to the Tribunal at the hearing that he was not prepared to sign a job plan which provided for more than 4 contacts with prospective employers per month. He asserted that his previous plan had provided for 4 contacts per month but the proposed new plan provided for 20 contacts per month. He argued that any more than 4 contacts per month was unreasonable. He asserted that the job plan was required to take account of his personal circumstances and this included that he was over 60 years of age, had been long-term unemployed and was involved in a heritage rail project which he called the ‘Madhatter Project’. He claimed that the Project, which he intended to present to the Victorian Government, had the potential to secure him employment if implemented.

10. The Respondent asserted that the job plan the Applicant refused to sign did not require 20 contacts per month but only 10 contacts per month in line with Instruction 3.2.9.30 of the Guide as applied after 1 July 2015, which contained a general expectation that a person over the age of 60 years would undertake 10 job searches per month.

11. The Tribunal is satisfied that, while the Applicant was initially required to accept a new job plan for 20 contacts per month, the plan which the Applicant refused to sign and which was the basis for the cancellation of his NSA required him to make 10 contacts with prospective employers per month and not 20 contacts as alleged by the Applicant. The Respondent’s online document recording archives record that the Applicant was advised on 6 July 2016 that the job search requirement of the job plan had been reduced from 20 per month to 10 per month. [4] This change was consistently stated in the Respondent’s participation reports,[5] and was recognised in the ARO’s decision of 12 October 2016.[6] It was also noted by the Tribunal in the AAT1 Decision,[7] and by Member Burke in a related decision.[8] The Applicant acknowledged in his written submission that on two occasions the job requirement was changed to 10 jobs per month,[9] but this made no difference to him as he was not prepared to sign a job plan for more than 4 contacts per month.

    [4] T14 at p.88 and also at p.90.

    [5] T16 at pp.120, 123 and 125.

    [6] T6 at p.33.

    [7] T2 [28] at p.8.

    [8] T10 at [17].

    [9] T9 at p.44.

12. The qualifications for the NSA are stated in s 593 of the Social Security Act 1991 (Cth) (Act). They include the requirement under ss. 593(1)(d) and (e), namely that at all times during the period when a person’s job plan is in force, the person is prepared to enter into another such plan instead of the existing plan, and if the person is required to enter into a plan in relation to a period, that the person enter into that plan. Where a plan is in place, s 605(2) of the Act empowers the Secretary to require the person to enter into another plan instead of the existing one.

13. The Guide states that where, after attending an appointment with the Department, a person refuses to enter into a job plan without good reason the Department may cancel their NSA.[10] The Respondent’s records indicate that the Applicant refused to enter into the job plan repeatedly over the period from July 2015 until his NSA was cancelled in September 2016.[11]

    [10] Instruction 3.2.11, formerly 3.2.8.30.

    [11] T16 at pp.133-4.

14. While there is scope for negotiation between the recipient and the Respondent over the content of a job plan it is ultimately a matter for the Respondent to determine the content of the plan. The Court noted in Kronen v Secretary, Department of Education, Employment and Workplace Relations that, ‘the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be agreement’.[12] Intransigence on the part of a recipient does not render a requirement to enter into a job plan unreasonable.[13]

    [12] [2009] FCA 1268 at [39].

    [13] Roberts v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 273 at [26].

15. The Applicant is correct to assert that the Respondent is required to consider his individual circumstances in determining the requirements of a job plan. The Guide set out a range of factors related to the recipient’s individual circumstances that must be considered in setting the terms of the job plan. The Applicant has not raised any specific factors that were listed in Instruction 3.2.8.50[14] which were not considered other than his age, the difficulty of people his age finding suitable employment and his involvement in the ‘Madhatter Project’. The sole condition of the job plan to which the Applicant objected was the requirement that he contact more than 4 prospective employers per month. The requirement ultimately included in the job plan presented to him was for 10 contacts per month which is consistent with the policy related to recipients over the age of 60 and was not so onerous that he could not continue to work on the Madhatter Project. The Tribunal is satisfied that this was not an unreasonable requirement.

    [14] Now Instruction 3.2.11.

16. Accordingly, the Tribunal is satisfied that the Respondent was entitled to require the Applicant to enter into the new job plan and given his repeated refusal to enter into it, the correct and preferable decision was to cancel the Applicant’s NSA on 20 September 2016 (with effect from 14 September 2016) under s 80(1) of the Social Security(Administration)Act.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding 17 (seven-teen) paragraphs are a true copy of the reasons for the decision herein of Member R West

............[Sgd]..................................................

Associate

Dated: 22 July 2021

Dates of hearing:	5 July 2021
Representative for the Applicant:	Self-Represented
Advocate for the Respondent:	P. Heffernan
Solicitors for the Respondent:	Australian Government Solicitor