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

Dudinski and Secretary, Department of Social Services (Social services second review) [2018] AATA 1843 (26 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0375
Re:Mr Yaroslav Dudinski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:26 June 2018
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – Newstart allowance –– failure to attend appointment with employment services provider – failure to advise of non-attendance prior to appointment – whether reasonable excuse for the failure – penalty payment imposed – whether committed a serious failure because of persistent non-compliance with newstart obligations – whether eight week serious failure period should be applied to newstart payment – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Secondary Materials
Social Security (Reasonable Excuse — Participation Payment Obligations) (FaHCSIA) Determination 2009 (No. 1)
Guide to Social Security Law
REASONS FOR DECISION

Ms Anna Burke, Member
26 June 2018
INTRODUCTION

Mr Dudinski (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to impose a penalty payment for non-attendance at his employment service provider (Matchworks), and an eight-week serious failure period applied to his newstart allowance for three connection failures.
On 29 July 2016 Centrelink advised Mr Dudinski via letter that his newstart allowance had been stopped, as he had missed an appointment with his employment service provider. Mr Dudinski was also told that he may incur a penalty for each day he did not attend an appointment with his provider, as required by the Social Security Act1991 (the Act). Centrelink is the service provider for the Department of Social Services.
On 20 April 2016, 16 June 2016, 23 August 2016 and 14 September 2016 Centrelink advised Mr Dudinski via letter that he may not have met one of the conditions for receiving his payment and if he did not have a reasonable excuse for his action he may lose his payment.
On 7 June 2016 Centrelink advised Mr Dudinski via letter that he had not entered into a Job Plan on 25 May 2016. He was advised that
After careful consideration, a decision has been made that you do not have a reasonable excuse for your actions and you have not met one of the conditions for receiving your payment.
…
If you have three or more failures applied over a six month period a serious failure may be imposed and your payment may stop for eight weeks.
In a further letter dated 22 June 2016 Centrelink advised Mr Dudinski that he had not entered into a Job Plan on 15 June 2016 and after careful consideration, a decision had been made that no failure had occurred.
On 13 October 2016 Centrelink advised Mr Dudinski via letter that:
This review has now been completed and the earlier decision that you have persistently failed to meet your participation requirements has not been changed. This means your payment will stop from 22 October 2016 to 16 December 2016.
This application was heard on 13 April 2018. Mr Dudinski was self-represented and Mr Tim de Uray, government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, appeared for the Respondent.
BACKGROUND
Mr Dudinski is currently 63 years of age, single, and resides in his own home. Mr Dudinski obtained his matriculation in 1972, completed a diploma of electrical engineering in 1979, and then worked at various companies, including V/line, in technical capacities. He was made redundant in 1987 and he has not had full-time work since. On 22 June 1992 Mr Dudinski started receiving newstart allowance.
Mr Dudinski describes himself as a rail (trains and trams) buff and an advocate of public transport who is interested in all aspects of railroading – track, signalling, locomotives and rolling stock design, buildings and architecture, train operations, safeworking, steam locomotives, trams preservation and history. Since 1995 he has been single-handedly working on a major project, “The combined rail heritage management plan and integrated heritage rail tourism industry for Victoria”, which he has titled the Madhatter Project. This project has required an enormous amount of Mr Dudinski’s time and personal resources. It involves a great deal of reading and research and he believes if the project is implemented, it would be of great benefit to Victorian tourism and would lead to employment opportunities for him and many others.
Missing an appointment with his employment service provider
On 21 July 2016 Matchworks notified Mr Dudinski by letter and telephone of an appointment at its Sunshine office for 29 July 2016, to discuss his ongoing job search requirements and activities or services to help him to find work.
On 29 July 2016 Matchworks advised Centrelink of Mr Dudinski’s failure to attend his scheduled appointment on that day. A Matchworks provider report notes that Mr Dudinski has missed his appointments in the past and provided the same reason on each occasion. Centrelink contacted Mr Dudinski on 29 July 2016 on his home phone seeking an explanation for his non-attendance. Centrelink recorded the following under the heading ‘Customer Explanation’:
Customer said he has a private matter on the day and not able to do this, he said he has the right not to want to tell them his private matter and rang to reschedule and was not allowed, he said he has a right to his privacy and does not which (sic) to advise the provider on what was happening on the day.
Centrelink recorded that Mr Dudinski had no barriers to attending his appointment and he had not provided a reasonable excuse for his non-attendance.
On 29 July 2016 Centrelink advised Mr Dudinski by mail that his newstart allowance had been stopped from 16 July 2016. Centrelink advised that his allowance had been stopped because their records showed that he had missed an appointment with his employment service provider on 29 July 2016 and he had not contacted them with a suitable reason for his non-attendance.
On 15 September 2016 an Authorised Review Officer (ARO) affirmed the decision to cancel Mr Dudinski’s newstart allowance for failure to attend an appointment with the service provider on 29 July 2016. The ARO records that Mr Dudinski:
Requested a review because the job active providers are trying to bully you into looking for meaningless jobs and jobs that you are not interested in. You also object to having to give reasons for non-attendance as it’s his own business as to why you didn’t go as it’s a private matter. Now that this report has caused a reduction in payment you’re strongly objecting to the penalty being applied.
Persistent failure to meet participation requirements
On 14 April 2016 a participation compliance workflows report noted that Mr Dudinski failed to comply with jobseeker requirements in Job Plan. Mr Dudinski stated in the report:
Because he is over 60 he should not have to be searching for 20 jobs. He stated he used to only have to search for two jobs as previous job plan. He was not able to provide any evidence that his capacity to job search is reduced.
The report goes on to state that Mr Dudinski did not have a valid reason for not completing his required job searches and providing the evidence as per the Job Plan. The report states that his only argument is that he is over 60 and should have to only look for four jobs per month. There was no suggestion that he has reduced capacity other than due to his age.
A participation report dated 19 April 2016 about the 14 April 2016 incident stated:
Client is constantly in the office using the hub to look for jobs and apply for jobs. We have mentioned to him to use the Australian job search or write them down on a record sheet. Client refuses to cooperate and believes four jobs per month is sufficient. The jobseeker has used this excuse multiple times but I do not consider it valid, given their circumstances.
On 25 May 2016 a participation compliance workflows report note that Mr Dudinski failed to enter a Job Plan with his employment support provider. A participation report of 25 May 2016 about the incident stated:
As per the contract client has an obligation to look for minimum 10 jobs per month. Client continues to bring through an older job plan dated April 2015 (prior to the new contracts) which only had 2 job searches on here.
I have explained to the client due to the new contract he is required to search for minimum 10 jobs per month and he refuses to do so and sign into a new job plan for this new contract.
Since the new contract came into effect July 2015 client has refused to sign into a job plan.
Client has asked for contracts which have been handed to the client on a number of occasions stipulating this. Client has advised that he feels as though he should only look for two jobs as per his last job plan dated April 2015.
We have handed client copy of his job plan and have provided him with two days cooling off period. He still refuses to sign into this.
The Jobseeker’s requirements were discussed in detail with them to ensure they understood the requirements and possible consequences of not participating.
The jobseeker has used this excuse multiple times but I do not consider it valid, given their circumstances.
I have use discretion in the past for this jobseeker but have not been able to successfully re-engage them in their requirements.
I have issued other reminders to the jobseeker for this requirement.
On 14 June 2016 a participation compliance workflows report notes that Mr Dudinski again failed to enter a Job Plan with his employment support provider. A participation report of the 22 June 2016 about the incident of 14 June 2016 stated:
We have changed his job searches down to 10 and client refuses to sign into his job plan to participate, he believes he should be looking for four jobs per month (as per his old job plan signed on the 26 May 2015 – expired as of 4 September 2015) and doesn’t feel the need to provide us with any evidence of this.
We have a discussion with the client at every appointment he still refuses to provide us with evidence. He continually comes into the HUB to job search and we always ask evidence from the client who can’t and won’t provide us with any evidence of the position he applies for.
I have drafted a new job plan with new requirements based on job search requirements (10 job/month as per contract client is mature age is required to complete 10 job searches per month. I have considered his personal circumstances/barriers and believe this is not an unreasonable requirement for this client.
On 12 October the ARO affirmed the decision to apply an eight week non-payment period to Mr Dudinski’s newstart allowance. The ARO stated:
I am satisfied there were no barriers to your compliance and your failure to provide your job searches and sign a job plan was not due to factors outside of your control. I am satisfied that you have persistently failed to comply with your obligations in relation to your new start allowance. I have two sided therefore, that a serious failure applies to your new start allowance. An eight week non-payment period will be applied to new start allowance.
On 15 December 2016 the Social Security and Child Support Division of the Tribunal (AAT Tier 1) affirmed the decision of the ARO to deduct an amount of $644.30 from Mr Dudinski’s newstart allowance for the non-attendance failure for the period 8 August 2016 to 24 August 2016. The Tribunal found Mr Dudinski had persistently failed to comply with his obligations in relation to participation payment through his connection failures on 14 April 2016, 25 May 2016 and 14 June 2016 and had committed a serious failure.
On 20 January 2017 Mr Dudinski sought a review of the AAT Tier 1 decision by this division of the Tribunal. His reasons for seeking a review were that the previous Tribunal had:
·ignored his unblemished record since September 2015;
·ignored the sudden striking difference in the compliance record after September 2015;
·asked superficial questions not exploring the background;
·ignored the Matchworks unemployment agency staff’s history of constant bullying against him post September 2015;
·dismissed the bullying as his own opinion;
·ignored the facts dating from before September 2015 and rubberstamped the original, dishonest accusations
ISSUES IN CONTENTIONS
The issues in contentions are whether Mr Dudinski:
·is subject to a non-attendance penalty;
·had a reasonable excuse for the non-attendance;
·contacted Matchworks prior to his scheduled appointment;
·is subject to a serious failure period; and
·committed three connection failures in a six month period
RELEVANT LEGISLATION AND ISSUES
Section 593 of the Act outlines the criteria for qualification for newstart allowance:
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
…
(b) in the case of a person to whom subparagraph (a)(i) applies--throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test; and
(c) if subsection 605(1) applies to the person, at all times (if any) during the period when a Newstart Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan; and
(d) if subsection 605(1) or (2) applies to the person, at all times during the period when a Newstart Employment Pathway Plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan; and
(e) if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan; and
(f) while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan; and
Section 601 of the Act sets out the activity test required for Newstart recipients:
(1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
Section 603C of the Act outlines the criteria for an incapacitated person not required to satisfy the activity test:
(1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:
(a) throughout the period the person is incapacitated for work because of sickness or an accident; and
(b) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and
(c) the incapacity is, or is likely to be, of a temporary nature; and
Section 42SA of the Social Security Administration Act (1999) (the Administration Act) outlines the criteria for immediate non-payment of participation payments for certain failures:
(1) The Secretary may determine that a participation payment is not payable to a person if:
(a) the person fails to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person; or
(b) the person fails to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person; or
(ba) the person fails to attend an appointment that the person is required to attend by a notice under subsection 63(2); or
(c) the person fails to comply with a reconnection requirement or a further reconnection requirement.
Section 42SC of the Administration Act outlines non-attendance failures:
(1) The Secretary may determine that a person commits a non-attendance failure if the Secretary makes a determination under subsection 42SA(1) because of the person's failure referred to in paragraph 42SA(1)(b) or (ba).
(2) Despite subsection (1), the Secretary must not determine that a person commits a non-attendance failure if the person satisfies the Secretary that the person has a reasonable excuse for the person's failure referred to in paragraph 42SA(1)(b) or (ba).
Section 42U of the Administration Act outlines the Legislative instruments relating to reasonable excuse:
(1) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing:
(a) a no show no pay failure (see paragraph 42C(4)(a)); or
(b) a connection failure (see paragraph 42E(4)(a)); or
(c) a reconnection failure (see paragraph 42H(3)(a)); or
(d) a serious failure (see paragraph 42N(2)(a)); or
(e) a non-attendance failure (see subsection 42SC(2)).
(2) To avoid doubt, a determination under subsection (1) does not limit the matters that the Secretary may take into account in deciding whether the person has a reasonable excuse.
Section 42UA of the Administration Act outlines prior notification of excuse:
(1) This section applies in relation to the following failures of a person:
(a) a failure to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;
(b) a failure to comply with a serious failure requirement imposed on the person, where the requirement was to undertake an activity on a day or to attend an appointment, or contact a person, at a particular time;
(c) a failure to comply with a requirement notified to the person under subsection 63(2), where the requirement was to attend an office of the Department, to contact the Department or to attend a particular place for a particular purpose;
(d) a failure to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person;
(e) a failure to comply with a reconnection requirement or a further reconnection requirement, where the requirement was to undertake an activity on a day or to attend an appointment, or contact a person, at a particular time.
Section 5 of the Social Security (Reasonable Excuse — Participation Payment Obligations) (FaHCSIA) Determination 2009 (No. 1) (the Determination) outlines matters to be taken into account in determining if a person had a reasonable excuse:
(1) For:
(a)    subsections 550(2A), 550B(2A) and 576(2A) and 576A(2A) of the 1991 Act; and
(b)   subsection 42U(1) of the Administration Act;
the matters set out in subsection (2) are matters that the Secretary must take into account in determining whether a person has a reasonable excuse.
(2)   The matters are:
(a)    that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure; and
(b)    the literacy and language skills of the person; and
Example for paragraph (b)
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c)    an illness, impairment or condition of the person that requires frequent treatment, including an illness that is episodic or unpredictable in nature; and
(d)    a cognitive or neurological impairment of the person; and
(e)    a psychiatric or psychological impairment or mental illness of the person; and
(f)    a drug or alcohol dependency of the person; and
(g)    unforeseen family or caring responsibilities of the person; and
(h)    that the person was subjected to criminal violence (including domestic violence and sexual assault); and
(i)   that the person was adversely affected by the death of an immediate family member or close relative; and

The Guide to Social Security Law (the Guide) at 3.1.13.90 defines ‘Reasonable Excuse’ as outlined in the legislation and determination:
General principles
The legislation requires that, before DHS imposes any penalty, the decision maker must establish whether the job seeker had a reasonable excuse for failing to meet their requirements.
However, if:
•the job seeker had a reasonable excuse on the day for failing to attend an appointment or activity,
•it was reasonable to expect the job seeker to have given prior notice of the reasonable excuse to the organisation which arranged the appointment or activity, and
•the job seeker failed to do so,
then the job seeker cannot be taken to have had a reasonable excuse.
Circumstances in which a job seeker cannot be expected to give prior notice of a reasonable excuse
The legislation provides that a reasonable excuse can only be considered a reasonable excuse if the job seeker gives prior notice of it. However, the legislation also provides that this does not apply if the decision maker is satisfied that, in the circumstances, it would not have been reasonable to expect a job seeker to give such prior notice. This provision gives decision makers the discretion to waive a job seeker's requirement to give prior notice of non-attendance in any circumstance where they believe it was unreasonable to expect the job seeker to have done so.
Even if the job seeker's reason for not attending an appointment or an activity was that they were engaged in another activity at the time which meant that they were fully meeting their requirements (e.g. working) or for which they would normally have been exempt from requirements (e.g. illness), their reason should not necessarily be taken to provide a reasonable excuse for their failure. The circumstances need to be considered on a case by case basis, with the crucial consideration being whether, regardless of the reason for missing the appointment or activity, the job seeker could reasonably have been expected to give prior notice that they would be unable to attend.
Meaning of reasonable excuse
Assuming that the job seeker gave prior notice when it was reasonable to expect them to have done so, the following considerations may lead the delegate to decide that the job seeker has a reasonable excuse and therefore that no failure should be applied.
The meaning of the term reasonable excuse is discretionary but the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. Mutual obligation requirements are designed to prepare job seekers for work and therefore a reasonable excuse should also be one that an employer would consider reasonable for an employee who missed work. The job seeker is also required to give prior notice of their inability to attend when it is reasonable to do so, as an employee is expected to.
The failure must not simply be a deliberate act of non-compliance. If the circumstance that prevented the job seeker from meeting their requirement was unforeseeable or outside the person's control, it provides a reasonable excuse. However, this does not necessarily mean that a circumstance that was foreseeable or was within the job seeker's control does not constitute a reasonable excuse.
It is also important to establish that the requirement that the job seeker was supposed to undertake was reasonable, was within their capacity and that the job seeker was notified correctly. If a requirement was not within a job seeker's capacity, they have a reasonable excuse for not meeting it. It should also be remembered that, because a job seeker's circumstances can change, a requirement that was reasonable at the time a job seeker entered into their Job Plan may no longer be reasonable at the time they failed to comply.
When determining if a recipient has a reasonable excuse for failing to meet a requirement, DHS must consider the recipient's personal circumstances. For example, a history of homelessness or an episodic mental illness could have been a factor in the recipient's failure to comply. Administrative tools such as the Vulnerability Indicator (placed on a job seeker's computer record) can be useful in alerting delegates to personal circumstances that could potentially explain a job seeker's non-compliance. The delegate should also be alert for any undisclosed personal issues, particularly mental health issues that could have explained the failure. It will not always be the case that, in a particular instance, such issues were a factor, but DHS must consider this possibility carefully in every case where such issues are evident.
Specific factors to consider
The factors that, as a minimum, the decision maker must take into account are listed in the Social Security (Reasonable Excuse - Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1). These are:
•that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure,
•the literacy and language skills of the person,
•an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature,
•a cognitive or neurological impairment of the person,
•a psychiatric or psychological impairment or mental illness of the person,
•a drug or alcohol dependency of the person,
•unforeseen family or caring responsibilities of the person,
•that the person was subjected to criminal violence,
•that the person was subjected to family violence,
•that the person was subjected to sexual assault,
•that the person was adversely affected by the death of an immediate family member or close relative,
•recent release from prison, where the job seeker has spent more than 14 days in prison within the past 28 days.
However, the above list is not exhaustive. When considering reasonable excuse, the decision maker should take into account all factors that may have affected the job seeker's ability to comply. Additional factors to consider could include:
•illness of the job seeker's child or someone for whom they have caring responsibilities,
•disabilities the person may have (including any requirements as a direct result of the disability such as the need for a carer or personal assistant),
•if the person was working at the time they were expected to meet their requirement,
•if the person had a job interview at the time they were expected to meet their requirement,
•lack of availability and affordability of transport,
•lack of availability of child care, and
•lack of awareness of the requirement (e.g. through non-receipt of correspondence).
In addition, the decision maker can interpret any factor included in the above list more broadly if the circumstances of the case warrant it. For example, although an immediate family member generally means a person's partner, father, mother, sister, brother or child, in some cases, it could include any person the decision maker believes should be treated as though they were an immediate family member, such as a member of the job seeker's adoptive or foster family (whether or not the fostering arrangement was formal).
On the other hand, any of the above factors may provide a reasonable excuse only if it had a significant effect on the job seeker's capacity to comply with the specific requirement at the time the job seeker failed to comply and the job seeker had given prior notice of the reasonable excuse to the organisation which arranged the appointment or activity if it was reasonable to do so.
Non-receipt of mail
The Acts Interpretation Act 1901 states that a letter correctly addressed and posted is deemed to have been given to the job seeker at the time at which it would normally be delivered by post. However, deemed delivery does not necessarily mean that the job seeker received the letter and the Acts Interpretation Act provisions do not override the reasonable excuse provisions of the SSAct.
Where the job seeker advises that they have not received the notification, the decision maker needs to assess the reasonable excuse before making a decision to apply a failure.
This should include consideration of all of the following:
•previous attendance and compliance history,
•the explanation of the job seeker,
•whether other documented contact attempts such as SMS messages, phone calls and face-to-face reminders were made,
•whether a recent change of address may have meant that the job seeker did not receive the notification,
Section 42B of the Administration Act outlines the objects of the relevant Division:
(1)The object of this division is to encourage people to participate in employment and engage with employment services. It is also the object of this Division to secure compliance with a person's obligations and requirements in relation to participation payments, and to ensure that those who do not comply are re-engaged with employment services as quickly as possible.
(2) However, this Division is not intended to punish a person who has a reasonable excuse for failing to comply with such obligations.
Section 42E of the Administration Act outlines the finding of connection failures:
(1) The Secretary may determine that a person commits a connection failure if:
(a) the person commits any of the failures mentioned in subsection (2); and
(b) the person receives an instalment of a participation payment for the instalment period in which the person commits the failure.
Note: A reconnection requirement may be imposed for a connection failure (see section 42G).
(2) For the purposes of subsection (1), the failures are the following:
(a) the person fails to comply with a requirement that was notified to the person under subsection 63(2) or (4);
(b) the person fails to comply with a requirement, under section 501, 544A, 605 or 731L of the 1991 Act, to enter into an employment pathway plan;
(c) the person fails to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person;
(d) the person is issued with a notice under subsection 42F(1) and fails to comply with it within the period specified in the notice;
(e) the person fails to comply with subsection 42F(2);
(f) the person fails to comply with a requirement included in an employment pathway plan that is in force in relation to the person to undertake a certain number of job searches per fortnight;
(g) the person fails to comply with a requirement included in an employment pathway plan that is in force in relation to the person:
(i) to keep a record of the person's job searches in a document referred to in the plan as a job seeker diary; and
(ii) to return the job seeker diary to the Department at the end of the period specified in the plan.
(3) The Secretary may determine that a person commits 2 or more connection failures on a day.
Limitations on determining connection failures
(4) Despite subsection (1), the Secretary must not determine that a person commits a connection failure if:
(a) the person satisfies the Secretary that the person has a reasonable excuse for the failure; or
Section 42M of the Administration Act outlines serious failure for persistent non-compliance:
(1) The Secretary may determine that a person commits a serious failure if:
(a) the Secretary is satisfied that the person has, up to the day the Secretary makes the determination, persistently failed to comply with his or her obligations in relation to a participation payment (including by committing no show no pay failures, connection failures or reconnection failures); and
(b) the person receives a participation payment for the instalment period in which the Secretary makes the determination.
Note 1: A participation payment is not payable for 8 weeks for a serious failure (see section 42P).
Note 2: For the day the Secretary makes the determination, see section 42Y.
(2) In determining whether a person commits a serious failure under subsection (1):
(a) the Secretary must not take into account failures that were outside the person's control; and
(b) the Secretary may only take into account any other failures that occurred intentionally, recklessly or negligently.
The Guide at 3.2.8.10 outlines the ‘Mutual Obligation Requirements’ for Newstart allowance:
Summary
Mutual obligation requirements are designed to ensure that unemployed people receiving activity-tested income support payments are actively looking for work and are participating activities that will help them into employment, unless DHS has granted the job seeker an exemption from these requirements.
Mutual obligation requirements for job seekers
A job seeker's mutual obligation requirements are generally determined by:
•their age,
•their assessed work capacity, and
•whether they have the primary responsibility for the care of a dependent child.
In return for activity-tested income support payments, job seekers must meet their mutual obligation requirements, which include:
•entering into a Job Plan,
•fully complying with the terms (requirements) in their Job Plan,
•demonstrating that they are actively looking for suitable paid work,
•accepting offers of suitable paid work,
•attending appointments with their employment services provider,
•attending all job interviews,
•attending approved education or training courses or programs designed to address any barriers that a job seeker may have to entering the workforce, and
•never leaving a job, training course, program or other required activity without a valid reason.
The Guide at 3.2.8.30 deals with ‘What Is a Job Plan?’:
Overview
A Job Plan is an 'employment pathway plan' for the purposes of social security law. The Job Plan underpins the provision of services to a job seeker.
For job seeker's with mutual obligation requirements the Job Plan will record all the items that the job seeker must undertake to satisfy those requirements under social security law.
The Job Plan must take into account the job seeker's individual circumstances, in particular their assessed work capacity (where relevant), their capacity to comply with requirements and their personal needs.
All job seekers without an exemption from their mutual obligation requirements (3.2.11) will need to have a Job Plan created when they claim payment. A person is not qualified for payment if they are not prepared to enter into and comply with the compulsory terms of a Job Plan. Whenever a job seeker's circumstances change, they need to participate in a new activity or their mutual obligation requirements change, their Job Plan should be reviewed and updated as required.
A Job Plan must be in a form approved by the Secretary of the Department of Jobs and Small Business. This is a legal requirement under social security law.
Contents of a Job Plan
The Job Plan records items for the job seeker to undertake or participate in such as, job search requirements, the requirement to attend provider appointments, the requirement to attend job interviews with prospective employers and to act on any referrals from employment services providers to specific job opportunities. It also can include, an annual activity requirement (where relevant), the requirement to participate in any other suitable activity that will enable a job seeker to improve their employment prospects and to satisfy their mutual obligation requirements under social security law. Most job seekers will need to undertake a range of approved activities in order to meet their mutual obligation requirements. This will depend on their circumstances, whether they have part-time or full-time mutual obligation requirements, their capacity to comply and whether they have an annual activity requirement.
Job seekers without mutual obligation requirements can undertake the same activities as job seekers with mutual obligation requirements, however these activities must be recorded as voluntary items in a Voluntary Job Plan and take into account the job seeker's circumstances.
Contents of the Job Plan should focus on achieving sustainable paid employment, including looking for a particular number of jobs each month. However, for early school leavers, the primary focus must be the undertaking of an approved course of education, training or other approved activities that on completion, will improve their employment prospects. The courses, training and activities should be vocationally orientated and designed to improve the job seeker's capacity and skills to enable them to secure and undertake suitable paid work.
All contents of a Job Plan must be determined within the parameters set out in the relevant provisions of social security law. A Job Plan must meet the needs of an individual job seeker and not place unreasonable demands on the job seeker, having regard to the job seeker's individual circumstances. Care should be taken when determining the contents of a Job Plan for job seekers with part-time or reduced mutual obligation requirements, for example due to health issues or family/caring responsibilities, to ensure that the job seeker not only has the capacity to meet the individual item (activity), but the sum total of the contents of the Job Plan.
Job seekers are encouraged and should consult with their employment services providers to identify appropriate activities they are interested in, or may prefer to undertake, to meet their mutual obligation requirements. While employment services providers will take these things into account, wherever possible, employment services providers (as delegates of the Secretary of the Department of Jobs and Small Business) have the final decision on what should be included in a job seeker's Job Plan.
Once the Job Plan is approved, a job seeker who fails to meet a compulsory item, or multiple compulsory items in their Job Plan, may be subject to action under the job seeker compliance framework.
Failure to enter into a Job Plan
If the job seeker refuses to enter into a Job Plan without good reason, the employment services provider will report this to DHS. The job seeker will be required to attend a further appointment to enter into a Job Plan. If the job seeker then attends but fails to enter into the Job Plan without good reason their payment may be cancelled by DHS until they do enter into a Job Plan.
Types of items that can be included in a Job Plan
Each item specified in a Job Plan must be:
•quantifiable and specific,
•measurable (i.e. it is clear when an item has been completed or not).
Example: A delegate may consider any of the following items for inclusion in a Job Plan:
•the requirement to attend provider appointments,
•job search requirements, generally 20 per month,
The Guide at 3.2.9.30 outlines job search requirements in general:
What is job search?
A job search is an instance where a job seeker actively contacts a potential employer to apply for a paid job. A job search may include contact by phone, in person, by submitting a written or online application or by attending a job interview.
Setting monthly job search requirements
The legislation does not specify the number of jobs a person is required to search for each month.
As delegates of the Secretary of the Department of Jobs and Small Business, employment services providers will determine the appropriate number of job searches a job seeker is required to undertake per month and specify this in the job seeker's Job Plan.
In setting the number of job searches required, employment services providers must do so in accordance with the social security law. The number of job searches generally expected to be undertaken by job seekers (including principal carer parents, and those with a partial capacity to work (15-29 hours per week) is:
•for job seekers in jobactive: ◦stream A and B job seekers - 20 job searches per month,
◦stream C job seekers and job seekers aged 60 years and over - job search is dependent on their capacity. In general they will be expected to undertake 10 job searches per month.
•for job seekers in DES: ◦job search is dependent on their capacity.
•for job seekers in the CDP: ◦it is at the provider's discretion to determine the number of job searches a job seeker should undertake based on the availability of jobs in the area, seasonal employment, transport and the job seeker's personal circumstances.
Reasons for a job seeker's job search requirements to be reduced
There are some prescribed circumstances in which employment services providers can reduce the number of job searches a job seeker is required to undertake. These include:
•physical, intellectual or psychiatric impairment, where this reasonably impedes job search,
•alcohol or drug abuse where this is likely to impede job search,
•substantially elevated level of family and caring responsibilities, where this is likely to impede job search,
•accommodation situation where this is likely to impede job search,
•education or skill level where this is likely to substantially limit job opportunities,
•current employment status (part-time or casual work),
For jobactive job seekers in stream C & job seekers aged 60 years & over
In setting an appropriate number of job searches for this cohort of job seekers, in addition to the considerations outlined above, employment services providers may also give consideration to the extent to which:
•other non-vocational issues or vocational issues are being or have been addressed,
•if the job seeker has undertaken re-skilling or re-training.
Note: Employment services providers should not reduce the number of job searches a job seeker is required to undertake simply because the job seeker is undertaking other activities (e.g. during the WFD phase for those in jobactive
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal

The evidence before the Tribunal included documents provided under s 37 of the AAT Act (the T documents). Additional reports (including the extensive draft of the Madhatter Project) and statements were provided by Mr Dudinski.
Missing an appointment with his employment service provider
The Guide clearly outlines the legislative requirement that before Centrelink imposes any penalty, such as that incurred by Mr Dudinski, the decision maker must establish whether the job seeker had a reasonable excuse for failing to meet their requirements.
However, if:
·the job seeker had a reasonable excuse on the day for failing to attend an appointment or activity,
·it was reasonable to expect the job seeker to have given prior notice of the reasonable excuse to the organisation which arranged the appointment or activity, and
·the job seeker failed to do so, then the job seeker cannot be taken to have had a reasonable excuse.
Reasonable Excuse
Mr Dudinski advised the Tribunal in both his written statement and oral testimony that he had consistently asked Matchworks to avoid scheduling appointments on Fridays as he reserves Fridays for various private matters, thus leaving the rest of the week available for job search activities. Mr Dudinski reiterated that he had been attending to family and private matters on 29 July 2016 and should not have to explain his private business to anybody. He wrote:
If the MWS staff have been honest and sensible they would have simply rescheduled the meeting taking about 30 seconds, as was done several times previously before their campaign of bullying against me, instead of deliberately making an inflated issue out of the situation to discredit.
The Respondent argued that Mr Dudinski had provided no reasonable excuse for why he did not attend his scheduled appointment on 29 July 2016 and had refused to elaborate on why he had not attended.
While the Tribunal has discretion in respect of the meaning of reasonable excuse and could appreciate that Mr Dudinski had personal matters to attend on Fridays, the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. The Tribunal found that this was not the case. Mr Dudinski is entitled to his privacy and to attend to private matters, but this must constitute a reasonable excuse as outlined in section 42SC(2) of the Administration Act for it to be a valid reason for non-attendance at a pre-scheduled appointment with his service provider.
Additionally, the Tribunal explored whether Mr Dudinski was affected by any of the following permissible reasons to miss an appointment:
•that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure,
•the literacy and language skills of the person,
•an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature,
•a cognitive or neurological impairment of the person,
•a psychiatric or psychological impairment or mental illness of the person,
•a drug or alcohol dependency of the person,
•unforeseen family or caring responsibilities of the person,
•that the person was subjected to criminal violence,
•that the person was subjected to family violence,
•that the person was subjected to sexual assault,
•that the person was adversely affected by the death of an immediate family member or close relative,
•recent release from prison, where the job seeker has spent more than 14 days in prison within the past 28 days.
•illness of the job seeker's child or someone for whom they have caring responsibilities,
•disabilities the person may have (including any requirements as a direct result of the disability such as the need for a carer or personal assistant),
•if the person was working at the time they were expected to meet their requirement,
•if the person had a job interview at the time they were expected to meet their requirement,
•lack of availability and affordability of transport,
•lack of availability of child care, and
•lack of awareness of the requirement (e.g. through non-receipt of correspondence).
Having found Mr Dudinski was not impacted by any of the issues outlined above the Tribunal was further satisfied he had no reasonable excuse as envisaged by the Act to miss an appointment with his service provider.
Prior notice of non-attendance
Mr Dudinski advised the Tribunal in his written statement and oral testimony that he had provided written notification two days prior to his appointment that the date was unsuitable. He argued:
I have never missed appointments and this was the first time I needed a meeting rescheduled after the bullying started and requests for reschedule meetings during the time of my previous case officer were accepted without question.
He advised he did not telephone Matchworks after the event to reschedule the appointment as he has never telephoned Matchworks on any occasion. All contact was in person to save on telephone bills, as he is in Sunshine two to three times every week and so there was no need for telephone calls. He provided additional information in writing to protect himself from dishonest accusations, which he noted obviously proved to be insufficient in this case.
Mr Dudinski advised the Tribunal that he had written on the notification letter about the appointment and had handed this into reception at Matchworks, expecting the date to be rescheduled. Mr Dudinski attached an appointment notice for 26 May 2017 with his documentation for the hearing, in which he has handwritten
Why this meeting when I saw you only a few days ago? And you were warned on numerous dates to avoid Fridays.
The Respondent argued that Mr Dudinski had provided no evidence that he had given prior notice of a reasonable excuse for any of his connection failures.
The Tribunal is not satisfied that Mr Dudinski had provided prior notice of his inability to attend his scheduled appointment on 29 July 2016. No corroborating evidence was provided to the Tribunal to verify this action. The Tribunal accepts that Mr Dudinski had previously sought and rescheduled appointments, particularly if they were scheduled on a Friday, but that this did not give him license to seek to reschedule all and every appointment without a reasonable excuse.
Persistent failure to meet participation requirements
Mr Dudinski advised the Tribunal in both his written statement and testimony that he had not failed to meet any of his participation requirements and at all times had complied with reasonable and honest requests. In his written statement he contends that MWS staff claimed:
·the job requirement rules had changed after 1 July 2015,
·that it was not permissible to change the job requirements,
·I wilfully refused to sign job requirement contracts,
·I wilfully failed to attend an appointment without prior notification, and
·I wilfully refused to submit job search forms.
Mr Dudinski refutes these claims and says the facts are:
·the relevant job requirements for over 60s had not changed after 1 July 2015,
·the four JPM was legitimate, correct, legal and appropriate,
·he had not refused to sign job requirements contracts
·he could not sign dishonest contracts that were inappropriate and did not apply to his circumstances or age group,
·he did not miss any meetings,
·he returned job search forms when they were issued to him and requested, and
·MWS refused to accept two forms when offered.
Mr Dudinski was adamant that he had complied with all reasonable requests of his job service provider. Mr Dudinski argued that he could not sign dishonest contracts which requested he search for 20 jobs per month when the guidelines explicitly state that job seekers aged 60 years and over, dependent on their capacity, in general will be expected to undertake 10 searches per month. Mr Dudinski also argued that his previous Job Plan, which required him to search for four jobs per month, was completely valid, recognised his specific skills and allowed him to pursue his personal project which he argued would lead to valid employment. He also argued that it was fundamentally ridiculous for him to apply for any more than four jobs per month as it would be simply form filling. He would not be able to find 10 or 20 jobs a month for which he was qualified, or for which any reasonable employer would consider him.
The Respondent argued that Mr Dudinski had persistently refused to enter into a Job Plan and that it was entirely within the discretion of Matchworks to determine the number of job searches required to be undertaken by Mr Dudinski. The Respondent also argued that Mr Dudinski’s view that he should be only required to undertake four job searches per month was unreasonable and that Mr Dudinski did not have any incapacity which would act as a barrier to him undertaking job searches.
The Tribunal provided Mr Dudinski with additional time to furnish any additional material he believed to be relevant to his contention that he was not in breach of any of his obligations to receive newstart allowance. Mr Dudinski furnished the Tribunal with a large volume of excerpts from the Madhatter Project notes, which he asserted were:
To help illustrate the work that goes into such a project and the need to concentrate my efforts on it. Various changes in the economy, government, policy, public transport realties, etc., necessitate constant revisions and updates (in progress).
One highlighted section of the documents is an extract from the Advisory Committee’s report on No. 2 Goods Shed (according to Wikipedia, No. 2 Goods Shed is a large railway freight shed in the former Spencer Street rail yards off Flinders Street Extension, Melbourne), for which Mr Dudinski had made a submission. The report states:
Mr Dudinski’s submissions principal value is in demonstrating an idea which, in itself, provides a very imaginative concept of an integrated approach to preserving the rail/tram heritage of this state, using expert volunteer support and with board tourism potential. As the concept has not been tested for cost or other feasibility, it remains embryonic. Nevertheless, it demonstrates potential ideas which do not yet appear to have been explored, but which offer considerable potential for making a reasonable use of the No. 2 Goods Shed, supporting the conservation of other heritage rail items promoting tourism, with its economic benefits for the state.
The Tribunal is impressed by the comprehensive work Mr Dudinski had undertaken in developing this innovative concept, but this project could not be considered a substitute for Mr Dudinski undertaking reasonable job searches in pursuit of employment, and did not form part of his Job Plan.
The Tribunal appreciates the frustration experienced by Mr Dudinski with his service providers and their insistence on him meeting a 20-job search target a month, when the guide states that 10 is the general requirement for those over 60. However, there is no strict rule about the number of jobs Mr Dudinski could be required to apply for. His job provider was able to request he look for as many as 20 jobs a month unless he had any incapacities that acted as barriers, and Mr Dudinski advised the Tribunal that he suffered from no incapacities.
The Tribunal finds Mr Dudinski’s insistence that he should be required to apply for only four jobs per month based on his previous plan (which was not sighted by the Tribunal) and his unwillingness to reach any compromise with his service provider, resulted in his persistent failure to enter into a Job Plan. The Tribunal did not accept Mr Dudinski’s view that he could not sign the Job Plans because they were dishonest, inappropriate, and did not apply to his circumstances or age group.
The Tribunal finds Mr Dudinski persistently failed to meet his participation requirements and committed three connection failures in six months. Mr Dudinski is therefore subject to a serious failure period. A serious failure period of eight weeks should therefore be applied to his newstart allowance for the relevant period.
CONCLUSION
The Tribunal has some sympathy for Mr Dudinski’s rationale for not applying for 20 jobs a month. The Tribunal finds that the system has failed Mr Dudinski, as he is now classified as a long-term unemployed, having been unemployed for 26 years. Mr Dudinski advised the Tribunal that he had not secured a single job interview in that time. The quality and presentation of Mr Dudinski’s resume indicated that his various job service providers had not greatly assisted him in job searching, preparing, or submitting applications. The Tribunal concurrs with Mr Dudinski that merely applying for jobs for the sake of meeting a target would now seem both fruitless and demoralising.
Mr Dudinski argued that his age was a barrier to him gaining access to the labour market and whilst the Tribunal accepts this is the case in 2018, it has not been the case over his 26 years of unemployment.
Mr Dudinski advised the Tribunal his Newstart allowance and Health Care Card had been suspended since he applied to the AAT for a review in October 2015. He advised the Tribunal he had been living on his savings since that time and no effort had been made to reconnect him to the system. Mr Dudinski advised the Tribunal he was seeking help to have his Newstart re-instated and the Tribunal wishes him luck with this pursuit. The Tribunal considers a penalty, not a cancellation, should have been applied to Mr Dudinski’s newstart allowance and accordingly his Newstart allowance should be reinstated.
DECISION
The Tribunal affirms the decision under review, finding Mr Dudinski:
·had a non-attendance failure for missing an appointment with his service provider without prior notice or a reasonable excuse, resulting in a penalty period from 8 August 2016 to 24 August 2016
·had committed a serious failure because of persistent non-compliance with his obligations on three occasions over a six week month period, resulting in a serious failure penalty of eight weeks applied to his Newstart allowance.

62. I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, Member

[sgd].......................................................................
Associate
Dated: 26 June 2018

Date of hearing 13 April 2018

Applicant Self-represented

Advocate for the Respondent

Solicitors for the Respondent

Mr Tim de Uray

Department of Human Services,
Freedom of Information & Litigation Branch

[2018] AATA 1843

26 June 2018

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