Dunn and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1880
•19 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION AATA [2007] 1880
ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION ) Re
No 2007/1340
Andrew Dunn
Applicant
And
Re
And
Secretary, Department of Employment and Workplace Relations
Respondent
No 2007/1692
Secretary, Department of Employment and Workplace Relations
Applicant
Andrew Dunn
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date19 October 2007
PlaceSydney
Decision The decisions under review are affirmed ....................[Sgd].....................
Ms N Bell
Senior Member
SOCIAL SECURITY – Newstart Allowance – Interviews and Activity Agreements – Failure to Attend leads to Cancellation or Non-Payment of Allowance – Was there a Reasonable Excuse for Failing to Attend the Appointment – Not Prepared to Enter into an Activity Agreement – Does Not Satisfy the Qualification Requirements - The decisions under Review are affirmed
Social Security Act 1991
Social Security (Administration) Act 1999
Acts Interpretation Act 1901
REASONS FOR DECISION
Ms N Bell, Senior Member 1. Mr Dunn has been receiving newstart allowance for over a decade. A number of conditions attach to the receipt of the allowance. One is to attend interviews when requested by Centrelink. Another is to enter into a newstart activity agreement when so required. Penalties of non payment or cancellation of the allowance result when these conditions are not met by an individual who receives the allowance. The applications under review concern Mr Dunn’s compliance with these conditions and the imposition of penalties by Centrelink after it formed the view that he had not complied as he was required to.
2. There are three decisions to be considered in the two applications before the Tribunal.
3. The first is a decision by Centrelink on 29 November 2006 to impose an eight week non payment period from 14 November 2006 to 8 January 2007 because Mr Dunn failed to attend an appointment on 13 November 2006. The Social Security Appeals Tribunal (SSAT) set this decision aside on the basis that Mr Dunn had a reasonable excuse for his failure to attend the appointment. The Secretary of the Department of Employment and Workplace Relations disagrees and seeks a review by this Tribunal. That application is 2007/1692.
4. The second decision is Centrelink’s decision of 24 January 2007 to impose a further eight week non payment period from 9 January 2007 to 5 March 2007 because Mr Dunn refused, on 4 January 2007, to sign an activity agreement. The SSAT affirmed this decision. Mr Dunn disagrees and seeks a review by this Tribunal. That application is 2007/1340.
5. The third decision, which is also the subject of application 2007/1340, is Centrelink’s decision of 23 January 2007 to cancel Mr Dunn’s newstart allowance because he refused to sign an activity agreement. The SSAT affirmed this decision and Mr Dunn disagrees and seeks review by this Tribunal.
6. I will deal with the last two decisions, the bases of Mr Dunn’s application for review, first.
mr dunn’s application
issues
7. In relation to the 24 January 2007 Centrelink decision, section 624(1)(a) of the Social Security Act 1991 (the Act) provides that a person commits a newstart participation failure if the person refuses to comply with a requirement that was notified to the person, the requirement was reasonable and it included a statement to the effect that failure to comply could constitute a participation failure. Such a failure attracts a non payment period of eight weeks if two or more failures of this kind have been committed in the preceding 12 months (s629(1)(a)).
8. The Secretary contends that a notice in the proper form was sent to Mr Dunn on 12 December 2006, advising him of a requirement to attend on 4 January 2007 to negotiate and sign an activity agreement. There is no dispute that Mr Dunn received that letter. There is also no dispute that Mr Dunn attended the Centrelink office on 4 January 2007 but he would not discuss or sign an activity agreement. Mr Dunn says that the notice he was sent was invalid.
9. The issue is whether the notice complied with section 624. If it did, then Mr Dunn’s refusal to engage in negotiation of an activity agreement, being a refusal to comply with a requirement, amounted to a newstart participation failure. However, if Mr Dunn had a reasonable excuse for failing to comply, then the failure will not amount to a participation failure (s624(2)).
10. In relation to the decision on 23 January 2007 to cancel Mr Dunn’s newstart allowance, s593(1) of the Act provides that it is a qualification requirement for receipt of newstart allowance that a person be prepared to enter into a newstart activity agreement. The Secretary contends that Mr Dunn was not so prepared. Mr Dunn says that, as he was already on an eight week non payment period, he was not obligated to do anything with Centrelink. The issue is whether, on 23 January 2007, Mr Dunn was prepared to enter into a newstart activity agreement.
did the 12 december 2006 notice comply with s.624?
11. Section 624(1)(a) of the Social Security Act 1991 provides:
624(1)(a) A person commits a newstart participation failure if the person:
(a) fails to comply with a requirement:
(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and
(ii) that was reasonable; and
(iii) the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure;
12. The letter of 12 December 2006 says, among other things:
“We have made an appointment for you to discuss your recent completion of a Centrelink Approved Activity or Program.”
Mr Dunn objects to these words because he had not in fact recently completed an Approved Activity or Program and says they are misleading and invalidate the notice.
13. However, the letter also says:
“During this appointment we will ask you to negotiate and sign an Activity Agreement.”
The letter also warns that if Mr Dunn fails to go to the appointment without a suitable reason his payments will stop for eight weeks.
14. The letter clearly notifies the requirement, including the date, time and place of the appointment; it is reasonable; and it makes clear what the effect of failing to comply will be. The letter, and the notice it constitutes, is not invalid.
did mr dunn have a reasonable excuse for not complying with the notice?
15. The only excuse offered by Mr Dunn for not complying with the requirement in the notice is his view that it was invalid. I have already concluded that the notice was not invalid and that it was clear as to the requirement it gave notice of. Mr Dunn did not have a reasonable excuse.
16. It follows that, because Mr Dunn had two previous newstart participation failures in the previous 12 months (27 January 2006 and 27 April 2006) his further participation failure on 4 January 2007 attracts a non payment period of eight weeks (s629(1)(a)). I affirm the decision to impose that non payment period in respect of Mr Dunn’s failure on 4 January 2007.
was mr dunn prepared to enter into an activity agreement on 23 january 2007?
17. Mr Dunn said that on 23 January 2007 he went to the Centrelink office because he wanted to use the direct line at the office to speak to the National Participation Team. He had earlier telephone discussions with officers who, he said, had advised him that an eight week non payment period had been imposed because of his failure to comply with a requirement on 4 January 2007. He said he already had an appointment on 23 January 2007 at 3.00 pm in any event. (This was an appointment he was required to attend in a notice dated 8 January 2007, in similar terms to the notice of 12 January 2007.) He said that when his name was called out for his appointment he told the Centrelink officer who called him that, as far as he was concerned, his payments had been stopped for eight weeks and so he was under no obligation to attend an interview until he had sorted it out with National Participation. He then left the office.
18. Centrelink computer records show that Mr Dunn’s eight week non payment period was not imposed until 24 January 2007. However, those records also show that Mr Dunn was advised by telephone on 22 January 2007 that his payments would stop because of the imposition of an eight week non payment period. The records do not indicate that he was told his payments had already stopped.
19. Mr Dunn said that, on 23 January 2007, he was not prepared to enter into an activity agreement because, as far as he was concerned, his payments had stopped and he was under no obligation. Later he said he is prepared to enter into an agreement if he is given an opportunity to negotiate its terms. He did not say what terms would be satisfactory to him.
20. Section 593(1) of the Act sets out the qualification requirements for newstart allowance. These include that a person is prepared to enter into a newstart activity agreement. On his own evidence, Mr Dunn was not prepared to enter into an agreement on 23 January 2007, on the mistaken belief that he was, at that time, not being paid. However, nor was he prepared to enter into an agreement on 4 January 2007 and he had similarly refused to do so on 27 January 2006 and 27 April 2006. A pattern emerges and it presents the inescapable conclusion that Mr Dunn does not want to enter into an agreement. He is not prepared to enter into an agreement, except on terms acceptable to him, whatever they may be.
21. As long as Mr Dunn is not prepared to enter into an agreement he does not satisfy the qualification requirements for the allowance and so may not receive it. I affirm the decision to cancel his newstart allowance.
the secretary’s application
issues
22. The central issue in this application is whether Mr Dunn had a reasonable excuse for failing to attend an appointment at 11.30 am on 13 November 2006. The Secretary says a notice was sent to Mr Dunn requiring him to attend the appointment to negotiate and sign an agreement. Mr Dunn says he did not receive the notice. The issues are whether Mr Dunn received the notice and whether he has a reasonable excuse for failing to attend the appointment.
did mr dunn receive the notice?
23. Section 29(1) of the Acts Interpretation Act 1901 provides:
29 Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
24. Section 23(12) of the Social Security Act 1991 provides:
23(12) If:
(a) section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b) sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Section 237 of the Social Security (Administration) Act 1999 is in similar terms to section 29(1) of the Acts Interpretation Act.
25. There is, by the operation of these provisions, a very strong presumption that service of the notice was effected. For me to conclude that Mr Dunn did not receive the notice, Mr Dunn must have strong evidence that he did not receive it.
26. Mr Dunn’s evidence was that he had been given a “Notice to Occupier” to vacate his unit by 7 November 2006. He had lived there for 10 years. He said his unit was in chaos with half packed boxes everywhere. He pointed out that he was so stressed by this disruption at the time that he obtained an adjournment of a hearing he had at the Tribunal. His usual method of keeping mail on a clipboard on his computer desk in the spare room could not work because he had packed up most of his furniture and stored it for removal. Instead, he placed his mail for safe keeping on the kitchen bench but he has no recollection of receiving a notice for attendance at Centrelink on 13 November 2006.
27. Mr Dunn also said that his mail has gone missing in the past, with him receiving his neighbours’ mail and his neighbours receiving his mail. He said he has a secure padlocked mailbox and has asked Post Office staff to place his mail all the way into the box but this request has been ignored. He invited a check of his street to see all the mail sticking out of mailboxes. He also said he has had utilities bills go missing in the past, but not very often, and said a Telstra bill went missing, at the time he moved from his unit and received an overdue notice instead.
28. When asked whether he thought the notice had gone missing or whether he had simply lost it in the chaos of moving, he said he could not be sure. He noted he would normally keep an appointment and has never been breached for just not turning up.
29. Mr Dunn did attend Centrelink on 13 November 2006, but later at 1.45 pm – to hand in his continuation form. The staff told him he had had an interview scheduled for that morning and he responded that he knew nothing of it. An officer asked him to stay for an immediate interview and Mr Dunn said he had to go to the city and catch a train that came at 2.00 pm so he could hand in a job resume. Mr Dunn said he asked if he could have the appointment the following Friday. Then, when another officer said he should have his appointment immediately, he repeated his reason for being unable to do so and left to catch his train.
30. It is difficult to reach a firm conclusion on whether the notice was delivered to Mr Dunn. The presumption that it was served on him is strong, given the terms of section 29(1) of the Acts Interpretation Act 1901 and section 23(12) of the Social Security Act 1991. Mr Dunn’s suggestion that it was not delivered to him is somewhat undermined by his description of the chaotic circumstances of his unit after he was notified that he must move. On balance, I must conclude that service of the notice was effected.
31. However, I am satisfied that, whether the notice was in fact delivered to him, or just deemed to have been delivered to him, he did not have the opportunity to read it. I base this finding on Mr Dunn’s description of the very organised way in which he generally dealt with Centrelink correspondence and his usual response to that correspondence. His usual approach to matters concerning Centrelink is to confront rather than to evade or ignore. I also note that he did attend the Centrelink office on that day, for another purpose, and was inherently unlikely to do so if he had been trying to avoid an interview. I find that Mr Dunn had no knowledge of the interview.
did mr dunn have a reasonable excuse?
32. Having already concluded that Mr Dunn did not, or did not have the opportunity to read the notice and had no knowledge of the interview, I further conclude that this, arising from the circumstances of his chaotic household and his move from his unit, constitutes a reasonable excuse for failing to attend.
Decisions
33. The decisions under review are affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ........[Sanjiv Shah]..........
AssociateDate of Hearing 17 July 2007
Date of Decision 19 October 2007Solicitor for the Respondent Gary Richardson
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