Dugan and Department of Family and Community Services
[2001] AATA 219
•6 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 219
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/28
GENERAL ADMINISTRATIVE DIVISION )
Re KENNETH DUGAN
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date6 March 2001
PlaceBrisbane
Decision The Tribunal varies the decision under review and in substitution thereto decides that Mr. Dugan be subject to an activity rate reduction for one breach only. The activity rate reduction period commences on 5 September 2000. This means Mr. Dugan's application for review is partly successful.
...............(Signed)...............................
DR E K CHRISTIE
MEMBER
CATCHWORDS
SOCIAL SECURITY – breach of Newstart Allowance activity agreement – whether reasonable steps taken to comply with Newstart Allowance activity agreement
Social Security Act 1991: s 626
Rohrmoser v Registrar of Trade Marks (1987) 70 ALR 613
Secretary, Department of Employment, Education, Training & Youth Affairs v Ferguson (1997) 147 ALR 295
ORAL REASONS FOR DECISION
6 March 2001 Dr E K Christie, Member
Mr. Dugan sought a review of the following decisions of the Social Security Appeals Tribunal ("the SSAT") made on 22 December 2000:
To apply an activity test breach reduction of 18% for failing to fully attend a training course; and
To apply an activity test breach reduction of 24% for failing to attend an interview.
The breaches were separate breaches of his Newstart Allowance activity agreement occurring at different times after Mr. Dugan entered into the activity agreement. The SSAT decision affirmed the decision of a Centrelink Review Officer made on 22 November 2000.
The Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 – the "T" documents (Exhibit 1).
Mr. Dugan represented himself at the hearing. The respondent was represented by Mr. S. Letch, a Departmental Advocate.
FACTSOn the basis of the evidence before it, the SSAT made the following findings:
"(i)Mr Dugan was in recept of newstart allowance when on 8 March 2000 he signed a Newstart Activity Agreement incorporating a requirement for him to attend two training courses on 7 & 8 August 2000 and 9/10/11 August 2000.
(ii)Mr Dugan did not attend the last day of the second course.
(iii)On 25 August 2000 Mr Dugan was sent a notice requiring him to attend an interview on 12 September 2000.
(iv)Mr Dugan did not attend this interview." (T2, Folio 10)
CONTENTIONS AND SUBMISSIONS OF THE PARTIES
In response to the SSAT findings Mr. Dugan stated:
That he had attended both days of the first training course. He had also attended the first and second days of the second training course but not the last day. The last day of the course was a three hour session only;
That the quality of the training programmes did not provide him with employment skills that he was not already aware of and so the course did not provide him with the employment direction he sought;
There was an absence of "hands on work" available in the training course eg. to prepare a resume´ on the computer;
That there were lengthy sessions of "free-time" with the trainer in each training course which he found did not facilitate his learning of employment skills;
That the morning session he did not attend (11 August 2000) was one that focussed on "free time" activities; and
That Mr. Dugan felt antagonised (and embarrassed) by comments that the trainer made to him when he queried the content of the course.
Mr. Dugan told the Tribunal that he had actively sought work as a cleaner or in gardening/mowing with potential employers as well as regularly attending sessions at Centrelink offices.
In terms of failing to attend two separate interviews, Mr. Dugan said that in relation to the first interview (12 September 2000) that he did not receive the Centrelink advice letter (T5, 25 August 2000). His explanation for this was that he shared a house with two other people. Both of these people were on Disability Support Pension and collection of mail and its distribution within the household was sometimes erratic and unreliable.
However, in terms of the interview set down for 21 August 2000, which was a term of the Newstart Allowance agreement that he had entered into, Mr. Dugan said he was aware of the terms of his activity agreement (T9, Folio 36) ie he accepted that he had to contact his job provider every two weeks from 21 August 2000. However, although having this knowledge, Mr. Dugan acknowledged that he did not attend the interview on 21 August 2000.
Mr. Letch, Advocate for the Department of Family and Community Services, submitted that the training courses Mr Dugan attended were not a "waste of time". The courses were designed to assist Mr. Dugan to find full-time work. Consequently, attendance at the course was in Mr. Dugan's control. Mr. Dugan's failure to attend the last day of the course was unreasonable in all of the circumstances.
In terms of the breach for failing to attend an interview, Mr. Letch submitted that Mr. Dugan could have been breached for his failure to attend either one of two separate interviews. However, Centrelink chose only to breach him for his failure to attend the interview on 12 September 2000. Mr. Letch submitted that it was open for the Tribunal to find that the Centrelink advice letter (T5) was received as Mr. Dugan's evidence was that he had no problems receiving other Centrelink mail delivered to the house he shared with others.
Mr. Letch further submitted that Mr. Dugan accepted that he was aware he had to attend the interview on 21 August 2000 as part of the terms of his activity agreement (T9). However, he did not attend this interview.
Mr. Letch concluded that a breach for failing to attend an interview could have been applied to either situation. In particular, that it was unreasonable for Mr. Dugan to fail to attend either interview.
CONSIDERATION OF THE ISSUESThe object of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Social Security Act 1991 ("the Act").
Section 626 of the Act deals with the situation where a person fails to comply with a Newstart Allowance activity agreement:
"Activity test penalties for failure to comply with Newstart Activity Agreement
626. (1) Subject to subsection (2), if:(a)a person is required to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and
(b)the person fails to take reasonable steps to comply with the terms of the Newstart Activity Agreement (the failure);
a newstart allowance is not payable to the person because of the failure.
626.(1A) If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:
(a)if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure – an activity test breach rate reduction period applies to the person; or
(b)if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure – an activity test non-payment period applies to the person."
The meaning of taking "reasonable steps" has been considered by the Federal Court in relation to a case management activity agreement and the provisions of the Act and the Employment Services Act 1994: Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1997) 147 ALR 295. In his decision, Mansfield J stated:
"…. The wider question as to the conduct of the recipient of Newstart allowance in relation to the agreement, …. does not simply look to the particular failure to comply with the terms of the agreement….. [whether] that person had not been taking reasonable steps to comply with the terms of the agreement …. would depend on other respects upon the person's attitude to performance of the terms of the agreement, attendances on other occasions, attempts to seek work and the range of information", and
"…. If he has failed to comply with the terms of the agreement, he is still to be taken as taking reasonable steps to comply with the agreement if:
(a) the main reason for that failure involved a matter that was within his control, or
(b) the circumstances that prevented his compliance were not reasonably foreseeable by him… (Tribunal emphasis)"
The Tribunal has considered whether Mr. Dugan has taken reasonable steps to attend the training course, as well as the interviews, against the meaning of taking "reasonable steps" given in Ferguson's case.
BREACH 1: Failure to attend the last day (morning) of the training course (11 August 2000)
The Tribunal concludes that Mr. Dugan took reasonable steps to comply with his Newstart Allowance Activity Agreement as his evidence (paragraph 6) indicates circumstances, in relation to the structure and content of the course, that were not reasonably foreseeable by him and which prevented compliance on the last morning of the course.
Furthermore, applying the reasoning in Ferguson's case, the Tribunal finds that Mr. Dugan's conduct was a significant factor for the Tribunal to consider in reaching this conclusion. Mr. Dugan had attended the first four days of the course and he had made regular attempts to seek work (paragraph 7).
This finding by the Tribunal means that Mr. Dugan should not have been breached for failing to attend the training course and, as a consequence, to be subject to an activity breach rate reduction of 18%. This means that this part of the SSAT decision should be set aside.
BREACH 2: Failure to attend specified interviews
Mr. Dugan failed to attend two separate interviews. The question whether Mr. Dugan actually received the Centrelink advice letter (T5) advising him of the interview on 12 September 2000 is uncertain. However, Mr. Dugan accepts that he was aware of the terms of his activity agreement (T9, Folio 36) and that he had to contact his job provider every two weeks from 21 August 2000. However, Mr. Dugan also acknowledges that he did not attend this interview.
In all of these circumstances (paragraph 21) the Tribunal has no option other than to find that Mr. Dugan, in failing to attend the interview on 21 August 2000, was not taking reasonable steps to comply with his activity agreement. The circumstances that prevented his compliance were within his control, as, having knowledge of this interview date, he could have prevented the occurrence: see Rohrmoser v Registrar of Trade Marks (1987) 70 ALR 613.
This finding means that an activity test breach has occurred because of Mr. Dugan's failure to attend the interview on 21 August 2000.
In making its findings, the Tribunal also makes the following observations.
The Tribunal found Mr. Dugan to be a forthright witness who answered questions openly, including questions relating to his knowledge of the terms of his activity agreement and interviews with his job provider (paragraph 9).
Concerns were raised during the hearing before the Tribunal relating to an out-sourced training course that Mr. Dugan attended as part of his agreement. Presumably, such courses are subject to some form of external, independent assessment by Centrelink to monitor quality control.
Based on all of the above findings, the Tribunal varies the decision of the SSAT and in substitution thereto decides:
(a)That only one activity breach has occurred in all of Mr. Dugan's circumstances. This is for a breach for failing to attend an interview on 21 August 2000;
(b)That an activity breach reduction rate of 18% applies; and
(c)That the activity breach reduction rate applies for a period of 26 weeks commencing 5 September 2000.
This means Mr. Dugan's application for review is partly successful.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: .....................................................................................
B. Hitchcock, SecretaryDate/s of Hearing 6 March 2001
Date of Decision 6 March 2001
Applicant Mr. Dugan, himself
Respondent Mr. S. Letch, Departmental Advocate
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