Fairweather and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 527
•25 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 527
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4704
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | THOMAS LOUISE FAIRWEATHER | ||
Applicant
| And | SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
Respondent
DECISION
| Tribunal | Ms G Ettinger, Senior Member |
Date25 June 2008
PlaceSydney
| Decision | The Tribunal sets aside the decision under review and decides that Mr Fairweather was “unemployed” pursuant to section 595(1) of the Act during the relevant period. He is undertaking work up to his capacity, and is taken to have satisfied the activity test while his incapacity remains unchanged. |
...............[sgd]...............................
Ms G Ettinger
Senior Member
CATCHWORDS
NEWSTART ALLOWANCE - Applicant partially permanently incapacitated due to work related accidents – claim of Newstart Allowance – whether “unemployed’ for purposes of claiming Newstart allowance – whether he is required to satisfy the activity test – decision under review set aside – Applicant exempted from undertaking the activity test.
Social Security Act 1991 ss 593, 595, 601, 603
Devriadisv Secretary, Department of Family & Community Services (2000) 62 ALD 145
McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284
Re McKenna and Director General of Social Services (1981) 3 ALD 219
Re Robson and Secretary, Department of Social Security [1992] AATA 157
Director General of Social Services v Thomson (1981) 38 ALR 624
Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26
Malaj and Secretary Department of Social Security, (1987) 15 ALD 333
Re Hine and Director-General of Social Services (1981) AATA 123
REASONS FOR DECISION
| 25 June 2008 | Ms G Ettinger, Senior Member |
Mr Thomas Fairweather has been employed by Australia Post since 1999. He has suffered work related injuries on two occasions, being 2000 and 2002. Mr Fairweather has consulted several doctors in relation to his injuries, and has undergone surgery four times. He works part time at Australia Post, and applied for Newstart Allowance on 23 March 2007. The claim was refused by the Secretary, Department of Education, Employment and Workplace Relations, (the Secretary), who was the Respondent in these proceedings. Mr Fairweather has exercised his right to appeal to this Tribunal.
I noted that compensation for his injuries has no longer been paid since the end of 2006 due to the fact Mr Fairweather did not participate in a rehabilitation plan as he was required to do. His appeal against that decision is the subject of another claim before the Tribunal.
In coming to a decision whether he could be paid Newstart, I had to decide if the Applicant was “unemployed” at the time of his application, and take into consideration the period 23 March 2007 to 5 April 2007. Other relevant considerations were whether Mr Fairweather was required to satisfy the Activity Test for Newstart Allowance, and whether he did in fact satisfy the test.
I considered the relevant sections of the Social Security Act 1991 (the Act), and was satisfied that Mr Fairweather is working to full capacity, and cannot be considered to be “unemployed” pursuant to section 593 of the Act. However, section 595(1) of the Act provides for discretion to treat a person who cannot be found to be “unemployed” pursuant to section 593, as “unemployed”, and the person can then qualify for Newstart Allowance. I have applied section 595(1) and exercised the discretion in Mr Fairweather’s favour. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
The issues to be decided were:
whether Mr Fairweather can be considered to be “unemployed”, and accordingly qualified for Newstart Allowance pursuant to section 593 of the Act; if not,
Whether the discretion in s595(1) of the Act should be applied so as to regard the Applicant as “unemployed”.
if I find Mr Fairweather is “unemployed” in terms of the legislation, I have to consider whether he was required to satisfy the Activity Test for Newstart Allowance, and whether he did in fact satisfy the test.
LEGISLATIVE CONTEXT
Section 593(1) of the Act provides the qualification for Newstart Allowance.
Pursuant to section 595(1), persons may be treated as unemployed where particular circumstances prevail. The amended subsection was enacted by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005, Act Number 154 of 2005 which replaced a similar provision, and came into operation on 1 July 2006. It accordingly applies to Mr Fairweather’s case.
Section 601 of the Act deals with the activity test.
“Section 601:
601 Activity test
601(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.
Note 1: For situations in which a person is taken to satisfy, or is not required to satisfy, the activity test see:
(a) section 603 (persons attending training camps or in remote areas);
(b) section 603A (special circumstances);
(c) section 603AA (persons 55 and over who are engaged in work);
(d) section 603AB (certain principal carers and people with partial capacity to work).
Note 2: See subsections (2A) and (2B) on what paid work is unsuitable.”
Pursuant to section 603 of the Act, a person who is held to be unemployed pursuant to section 595(1) of the Act, may be relieved from undertaking the activity test.
CONSIDERATION OF THE FACTS AND THE LAW
whether mr fairweather can be considered to be “unemployed”; whether he qualifies for newstart allowance pursuant to section 593 of the act
Mr Fairweather who has a substantive permanent fulltime position at Australia Post, works part time, and applied for Newstart Allowance on 23 March 2007. He has applied for review to this Tribunal of the refusal by the Respondent at first instance, followed by a review of an Authorised Review Officer and the Social Security Appeals Tribunal (the SSAT), to grant him Newstart . The relevant period to be taken into consideration is the period 23 March 2007 to 5 April 2007. Mr Fairweather told me that he made the claim for Newstart to supplement his income because he is unable to work fulltime as a result of his compensable injuries, his compensation payments were stopped at the end of 2006, and he had medical expenses and needed to supplement his income.
I find from the evidence before me that Mr Fairweather generally works approximately three six hour days a week, being 18 hours a week, although that varies from time to time. The records indicate that from 6 April to 18 April 2007 Mr Fairweather worked 32 hours, and in the period 23 March 2007 to 5 April 2007, he was recorded as having worked 26 hours and 45 minutes (Exhibit R5).
I first had to decide if Mr Fairweather was “unemployed” pursuant to section 593 of the Act at the time of his application, and whether he qualified for Newstart on the date of application.
Section 593(1) of the Act provides the qualification for Newstart Allowance. As relevant it follows.
“593 Qualification for newstart allowance
593(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
(ii) the person is a CDEP Scheme participant in respect of the period; and
Note: For CDEP Scheme participant see section 1188B.
(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
…”
The legislation states that if the person, in this case, if Mr Fairweather, satisfies the Secretary, and therefore the Tribunal standing in the Secretary’s shoes, that he is unemployed throughout a given period, then he is qualified for Newstart if he satisfies the activity test (or in the alternative if he is not required to do so).
Now Mr Fairweather has been employed at Australia Post since 1999, earlier as a senior mail officer, but following his accidents in 2000 (injury to the left ankle), and 2002, (injury to the right foot), in administrative duties. He has undergone surgery four times in relation to his injuries.
Mr Fairweather has had several attempts at a graduated return to work. Mr Fairweather told me that he is currently able to work no more than three days a week because of chronic pain, inability to concentrate due to taking morphine for the pain, problems with sleep, and Post Traumatic Stress Syndrome (PTSD). He detailed the large amount of medication he takes which includes morphine, anti-depressants, and medication for nausea and constipation caused by the morphine.
Mr Fairweather told me that the SSAT had erred in paragraph 40 of its decision in noting that he was not willing to undertake further work. He said that he is unable to do so due to his injuries. He said that he had tried fulltime work in 2006/7, but had been unable to do it.
Mr Fairweather told me that he attends at Dr Kearney, a psychologist every two weeks, and attends at a psychiatrist, Dr R Resnik monthly. He also sees his general practitioner Dr R McFarlane, and says he should see his rehabilitation doctor, Dr Brookes once every three months.
Mr Fairweather has also attempted study at his own cost and in his own time. He enrolled in a bridging course for Sydney University which was six hours a week. Mr Fairweather said that he had to give that up half way through because of his PTSD.
Australia Post maintains that Mr Fairweather has a substantive full time position with it, and that he cannot therefore be categorised as unemployed.
Mr Fairweather however, submits in no uncertain terms that due to his medical problems, and on the advice of his doctors, he cannot work full time.
I heard oral evidence from Mr K Morgan, an occupational therapist who also prepared two Job Capacity Assessment Reports (Exhibits R2 and R3). Mr Morgan referred to Mr Fairweather’s state of health, his lower limb injuries, the PTSD which was diagnosed in 2002, and his mobility, which is the capacity to walk 500 metres at most, as well as his chronic pain, and the taking of medication with all its side effects including, amongst others, fatigue and problems with concentration.
Mr Morgan told me that his assessment differed from that of Ms S Lalwani whose report is at T13/49. His assessment was that Mr Fairweather could work 15 – 22 hours a week, whereas Ms Lalwani considered Mr Fairweather could do 15 – 22 hours a week at the time of her assessment in April 2007 on a temporary basis. She also considered that he would be able to manage 30 hours a week from April 2008, and full hours within 24 months of her assessment.
Mr Morgan also referred to the reports of Drs Brooke, McFarlane and McGill, all of whom with the exception of Dr McGill considered that Mr Fairweather could only work 15 – 22 hours a week.
Mr Morgan considered that both Mr Fairweather’s PTSD and injuries to his lower limbs had been fully diagnosed, treated and stabilised and were permanent. Dr Brooke agreed.
Mr K Vaughan, a senior compensation delegate also gave evidence at the hearing. He prepared a Centrelink Employer Verification Report dated 21 May 2007 which was at T28. He had noted on the form that Mr Fairweather’s workers compensation had been suspended from 18 December 2006 due to non-compliance with his rehabilitation plan. Mr Vaughan had noted that Mr Fairweather was designated as having the capacity to work full hours, but that he attended approximately 18 hours a week, (with some variations). Mr Vaughan’s letter of 9 January 2008 indicated Mr Fairweather’s earnings for the relevant period (Exhibit R4).
Dr N McGill who is a consultant rheumatologist, prepared a report dated 1 February 2007 after examining and interviewing Mr Fairweather on behalf of Australia Post (Exhibit R5). In his summary of findings, Dr McGill opined as relevant that:
“In contrast to the symptoms he reported and the marked limp which he demonstrated when walking, the objective physical findings were unremarkable.… The extent and severity of pain which he reported were much worse than one would expect for the objective physical findings.
Factors other than physical disease are of great importance in regard to the perception of pain. Thus despite the inconsistency between the objective physical findings and his report of discomfort, for the following questions I have provided him with the benefit of doubt in regard to him continuing to experience substantial pain.
He is clearly capable of undertaking the upgrade program and to currently perform stage 2 of the program.
In light of the pattern of his symptoms, I do not think he will be able to return to pre-injury duties. … noting the marked discrepancy between his level of symptoms and the objective findings, I think, in practical terms, the aim should be to return him to indoor duties on full hours.
He is fit to work full hours.
When psychological/emotional factors are important in terms of symptoms experienced, I think sympathy and understanding are important. It should be appreciated however that it is not in his long term interest for him to be allowed to remain on much more restricted duties than are appropriate in light of his physical capacity.”
Dr K Brooke, rehabilitation physician, wrote to Australia Post on 5 April 2007 after considering Dr McGill’s report (T9). She opined in relation to the upgrading of Mr Fairweather’s hours that: “I do not believe Mr Fairweather is capable of upgrading his hours as per the proposed programme. … Extra medication for increased pain causes sedation and reduced capacity for work. … Mr Fairweather has had 2 work related injuries involving his feet. This has resulted in significant pain requiring narcotic analgesics regularly. He has also experienced a major depressive episode as a result of the injuries and remains on antidepressant and under the supervision of a psychiatrist. … In 2006 he attempted to upgrade his hours of work. In practice, he worked an average of three days per week whilst cleared to work 5 days, limited hours. I believe this represents a failed return to work plan…”
Dr Brooke wrote again on 9 July 2007 (T41) to Mr Fairweather’s lawyers, stating that she has been treating the Applicant since July 2006, and referring to his treatment by Drs M Horsley, J Negrine, D Lunz and M Sullivan, orthopaedic surgeons, psychologist Dr B Kearney (for chronic pain management), Dr R Reznik, psychiatrist for depression, and Dr S Faux, also a rehabilitation and pain physician. Dr Brooke also opined that Mr Fairweather had reached maximal medical improvement and was suitable for sedentary work.
In a report of Dr Steinbeck, a consultant physician, dated 5 July 2007 (T40), he stated: The above (Mr Fairweather), is limited because of the consequences of physical assault and requirements for pain relief, control. His work ability is limited accordingly to the order of three days.”
I am mindful that all of the practitioners whose evidence I have dealt with in the paragraphs above, including the treating doctors, and with the exception of Dr McGill, considered that Mr Fairweather could only work 15 – 22 hours a week due to his injuries. I am mindful that Dr McGill only saw Mr Fairweather once, for medico legal purposes, and that he was the only practitioner whose evidence I have before me who considers that the Applicant can work fulltime.
The only other variation was that of Ms S Lalwani whose report is at T13/49, and who considered Mr Fairweather could do 15 – 22 hours a week at the time of her assessment in April 2007 on a temporary basis, but that he would be able to manage 30 hours a week from April 2008, and full hours within 24 months of her assessment.
I accept Mr Fairweather’s evidence that he suffers pain as a result of his injuries, and has side effects from the medication he takes which prevent him working more than approximately 18 hours a week. I prefer the assessment regarding working hours as given by Drs Brooke, Steinbeck and Mr Morgan, in particular the treating doctors, and accept that Mr Fairweather’s injuries are permanent, and that they have reached maximal medical improvement. I give more weight to the above stated opinions than to those of Dr McGill who only saw Mr Fairweather on one occasion and for a medico legal purpose, and who stated that Mr Fairweather could work fulltime. I am mindful that notwithstanding his opinion regarding work hours, Dr McGill acknowledged the Applicant as “continuing to experience substantial pain”. I further noted that Dr McGill also stated that “when psychological/emotional factors are important in terms of symptoms experienced, I think sympathy and understanding are important….”. Clearly even Dr McGill took into account psychological factors and the effects of pain.
In coming to a conclusion, I find that Mr Fairweather cannot be characterised as “unemployed” in terms of section 593(1)(a)(i) of the Act, because he is employed to his full capacity.
Therefore I have also considered section 16B of the Act which is reproduced below, and deals with partial incapacity.
Section 16B states:
“16B Partial capacity to work
16B(1) A person has a partial capacity to work if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the Secretary is satisfied that:
(i) the impairment of itself prevents the person from doing 30 hours per week of work independently of a program of support within the next 2 years; and
(ii) no training activity is likely (because of the impairment) to enable the person to do 30 hours per week of work independently of a program of support within the next 2 years.
…”
In considering whether Mr Fairweather has a partial incapacity to work, I was mindful of his evidence, and that of his doctors and the job capacity assessments as detailed above, (with the exception of Ms Lalwani and Dr McGill), which indicate he can only work approximately 15 – 22 hours per week. In that context, I am mindful that both Ms Lalwani and Dr McGill also commented on the effects of Mr Fairweather’s medication and his pain levels. I am satisfied he can only work 15 – 22 hours per week.
Accordingly, based on the medical evidence, and work assessments, and his own evidence, I find that Mr Fairweather satisfies the conditions in section 16B of the Act in that he has a partial capacity to work because he has a physical and psychiatric impairment which is permanent. He further satisfies the conditions in section 16B(1)(a) and (b) of the Act in that his impairments prevent him from doing 30 hours a week of work regardless of training and support which might be provided.
I then moved to consider whether the discretion in section 595(1) of the Act should be applied so as to regard Mr Fairweather as “unemployed” during the relevant period.
whether the discretion in section 595(1) of the act should be applied so as to regard mr fairweather as “unemployed”
Work is generally given its colloquial meaning, being paid work, so that a priori a person like Mr Fairweather who is doing paid work cannot be held to be unemployed.
In Devriadisv Secretary, Department of Family & Community Services (2000) 62 ALD 145, Mansfield J referred to McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284, and the concurrence of the Full Court in holding that:
“… the question whether the appellant was ‘unemployed’ during the whole or part of the period when benefit was paid was essentially a question of fact and degree to be decided having regard to the above principles.”
The principles espoused were also dealt with in Re McKenna and Director General of Social Services (1981) 3 ALD 219, and noted by Mansfield J in Devriadis.
However pursuant to section 595(1) of the Act, there is a discretion pursuant to which persons may be treated as unemployed where particular circumstances prevail. As already stated above, section 595(1) of the Act in its present version has been enacted, and has applied since 1 July 2006. It applies in Mr Fairweather’s case.
Section 595 provides:
“595 Persons may be treated as unemployed
595(1) The Secretary may treat a person as being unemployed throughout a period if:
(a) during the period, the person undertakes:
(i) paid work that, in the Secretary’s opinion, is suitable for the person to undertake; or
(ii) any other activity;
as a result of which he or she would, but for this subsection, not be taken to be unemployed; and
(b) the Secretary is of the opinion that, taking into account:
(i) the nature of the work or other activity; and
(ii) the duration of the work or other activity; and
(iii) any remuneration received for the work or other activity; and
(iv) any other matters relating to the work or other activity, or to the person’s circumstances, that the Secretary considers relevant;
the activity should be disregarded.
Note: The person may, under subsection 603(3), also be treated as satisfying the activity test.
...”
The Secretary could have, and hence the Tribunal, may, treat Mr Fairweather as being “unemployed” at the relevant time if he has undertaken paid work that is in the opinion of the Tribunal suitable for the Applicant to undertake. In doing so, the Tribunal must take into account the nature and duration of the work, the remuneration Mr Fairweather receives, and any other matters the Tribunal considers relevant.
The rationale for section 595(1) of the Act is outlined in the Explanatory Memorandum to section 3, Schedule 7, Part 2 (15) of the amending Act as follows:
“Section 595 is concerned with the Secretary’s power to treat people as unemployed in certain circumstances. As a result of the Welfare to Work measures, some people who previously might have sought to claim either Parenting Payment or Disability Support Pension will now need to establish entitlement to other payments such as newstart allowance. One qualification criterion for newstart allowance is that the person must be unemployed. However, it is recognised that some people in the affected group will already be working to capacity or undertaking other appropriate activities, with the effect that they might not be correctly described as ‘unemployed’. Accordingly, new subsection 595(1) creates a power for the Secretary to treat a person as unemployed in the circumstances specified in proposed new subsection 595(1).”
Submissions made on behalf of Mr Fairweather were that pursuant to section 595(1) of the Act, he should be treated as being unemployed because he is working to full capacity, and cannot be held to be unemployed pursuant to section 593 of the Act. It was submitted that because he is employed to his full capacity, he need not look for work, and that he has therefore satisfied the activity test at the relevant time.
The Respondent referred to case law which has dealt with the concept of “unemployed”, which I have considered in the paragraphs below. Ms Gailbraith emphasised relevantly that determining whether an individual is unemployed at a particular time will depend on several factors, and referred to McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284.She also submitted, referring to 1.1.U.30 of the Guide to Social Security Law (the Guide) that compliance with activity test requirements will be an indicator of whether a person’s intended or actual engagement with the labour market is genuine and sufficient.
Ms Gailbraith also referred to earlier legislation and its application as mentioned in the case of Re Robson and Secretary Department of Social Security [1992] AATA 157 where, I note, a different scenario from that in this case was envisaged, that is with reference to short term periods of employment of unusual or sporadic character, and casual work for small earnings while a person was job seeking. I am satisfied that that does not apply in the Fairweather case where I have found that the Applicant is working to capacity, therefore not job seeking, and who has a partial incapacity which is permanent.
The case law I have been able to access has dealt with predecessors to section 595(1). However the principles apply. The term “unemployed” has not been defined except in the case law which has dealt with it on a case by case basis. In its broadest sense, an unemployed person is someone who does not have paid work, but has a present intention to access it. That is not in question here because Mr Fairweather has been undertaking paid work for many years, and says that he cannot look for work because he is working to capacity. I accept that on the basis of Mr Fairweather evidence, and the medical evidence.
In Director General of Social Services v Thomson (1981) 38 ALR 624 the Full Court of the Federal Court stated:
“… we prefer the view that the activities being pursued by an applicant for a benefit are to be considered with all other relevant factors in determining whether he or she is employed. One important matter for consideration is the applicant’s intention at the relevant time.”
The Respondent in its Statement of Facts and Contentions also referred to Re Robson and Secretary, Department of Social Security [1992] AATA 157 and Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26. In the former the Tribunal stated that in its view, “the primary purpose behind s 516 (predecessor to section 595), is to allow short-term periods of employment of a somewhat unusual or sporadic character to be disregarded for the purpose of calculating job search allowance.” The Respondent submitted that in Re Waller, the Tribunal thought the most common cases in which the discretion would be exercised would be where casual work is undertaken part time for small earnings while the person was searching for a full time position. The Respondent submitted that section 595 was therefore usually used to allow casual or part time employees access to unemployment benefits, subject to income test provisions, provided they also met the activity test requirements i.e. were actively seeking or being willing to undertake work.
The Respondent argued that applying the existing case law, and the facts of this case, the discretion to find Mr Fairweather unemployed pursuant to section 595(1) of the Act should not apply as he is not willing to look for work, and he is working regularly for approximately 18 hours a week for Australia Post.
Each of these cases is decided on an individual basis, taking into account matters of fact and degree, and that is what I must do here, noting the application of new section 595(1) and the thoughts expressed in the Explanatory Memorandum.
In considering Mr Fairweather’s situation, and the application of section 595(1) of the Act, I have accepted that his work is the administrative work he can now do given his injuries, that it is ongoing, and neither sporadic nor intermittent in the sense discussed in Re Robson and Secretary, Department of Social and Re Waller and Secretary, Department of Social Security. I consider it relevant that Mr Fairweather’s condition has been diagnosed, treated and stabilised, and that it is permanent. I rely on the reports of the doctors who have treated and examined Mr Fairweather, and the report of Mr Morgan to find that he can only work 15 – 22 hours a week, and that his income is accordingly necessarily restricted. I note that Mr Fairweather cannot presently access a disability support pension or compensation because his case is still before the Tribunal. He is being paid only for the hours he works, (approximately 18 per week), and has no present entitlement to sick leave or compensation, the latter suspended due to his non-compliance with a rehabilitation program. There is no argument that Mr Fairweather is being remunerated at or above award rates for the work he does. However he is seeking to receive Newstart to supplement his income and pay his medical expenses. I am mindful that in Malaj and Secretary Department of Social Security, (1987) 15 ALD 333, with reference to Re Hine and Director-General of Social Services (1981) AATA 123, it was held that “unemployment benefit is not a support scheme for inadequately remunerated employment.” That however is not the case here as Mr Fairweather is paid at award or above award rates.
I have found in the paragraphs above that partial capacity for work is defined in section 16B of the Act, and that Mr Fairweather meets the tests for section 16B.
I have considered all the circumstances anticipated in section 595(1)(b)(i) – (iv), which are that Mr Fairweather is working to his capacity and has been doing so for some time, that he is only paid for the hours he works at award or above award rates. In fairness I find that it is reasonable in the circumstances he should be found to be “unemployed”, and I exercise the discretion to find that Mr Fairweather is “unemployed” in the terms of section 595(1) of the Act.
whether mr fairweather has to satisfy the activity tests for newstart and whether he did in fact satisfy the test
Ms Finlay submitted on behalf of Mr Fairweather that he was not looking for work because pursuant to section 593(1)(b)(i), he satisfied the activity test at the relevant time. She submitted that the Applicant relied also on the policy referred to in the Social Security Guide, in particular at 3.2.7.10 under the heading NSA/YA Activity Testing – Overview which states relevantly that:
“The activity test is designed to ensure that people in receipt of income support payment for unemployed people are actively looking for work and/or doing everything they can to become ready for work in the future. The activity test is designed to allow for individual tailoring to a person’s needs…
….
Job seekers who are not able to work full-time or are restricted to a limited range of duties because of incapacity are expected to look for work to their capacity. If a person in this situation is undertaking work up to their capacity they are taken to have satisfied the activity test while their incapacity remains unchanged…”
I noted further that pursuant to paragraph 3.2.2.10 of the Guide “Sufficient Work”, which states in its introduction that: “A person can be considered to be unemployed for NSA purposes even if they are doing sufficient work (1.1.S.403) to fully meet their participation requirement and consequently have no job search requirement.”
Paragraph 1.1.S.403 contains the definition of sufficient work test as follows:
“The sufficient work test is a guideline to assist delegates in deciding whether work that is being undertaken or that is proposed to be undertaken:
·Satisfies, or can count toward satisfying activity test requirements, and
·Is able to be disregarded under section 595 of the Social Security Act 199, so that the person may still be regarded as unemployed.
The test involves establishing whether the combination of hours worked and remuneration paid is appropriate for the circumstances for the individual case.”
The Respondent submitted that to satisfy the activity test pursuant to section 601 of the Act, a person must actively be seeking and willing to undertake paid work. The Respondent relied upon the assessment made by Dr McGill who considered the Applicant could work full time, and by Ms S Lalwani (T13/49), who considered that Mr Fairweather could do 15 – 22 hours a week at the time of her assessment in April 2007 on a temporary basis, but that he would be able to manage 30 hours a week from April 2008, and full hours within 24 months of her assessment.
Ms Gailbraith submitted that Mr Fairweather worked 26 hours and 45 minutes in the period 22 March to 4 April 2007, which was not to his full capacity, and that he was capable of full time work, and should have been undertaking job seeking. Ms Gailbraith submitted that the Respondent relies on sections 601 and 603 of the Act, and that Mr Fairweather must comply in regard to the activity test.
In coming to a decision whether Mr Fairweather has already satisfied the activity test for Newstart, or whether he has to satisfy the activity test for Newstart, I have taken into account the evidence, the legislation, the Guide and the case law, noting that there are situations where exemptions apply. I have found in the paragraphs above that I am satisfied the discretion in section 595(1) of the Act should be exercised to find that Mr Fairweather that “unemployed”.
I am mindful that section 601 sets out the activity test.
I am mindful also that pursuant to section 595(1) of the Act, Mr Fairweather may, under subsection 603(3), also be treated as satisfying the activity test.
“Section 603 states:
603 Relief from activity test—general
…
603(3) If:
(a) a person is treated as being unemployed because of subsection 595(1); and
(b) the Secretary is satisfied that it is appropriate for this subsection to apply;
the person is taken to satisfy the activity test during the period starting when the person made a claim, or is to be taken to have made a claim, for newstart allowance and ending:
(c) if the person has been required to enter into a Newstart Activity Agreement but has failed to enter that agreement—when the person so failed; or
(d) in any other case—when the person has entered into such an agreement.
…”
The Respondent has argued that Mr Fairweather can work full time, that he is accordingly not employed to his full capacity. The Respondent submitted that it would accordingly not be appropriate for section 603(3) to be applied in his case because Mr Fairweather is capable of seeking and undertaking further work.
I have however exercised the discretion to find that Mr Fairweather is unemployed pursuant to section 595(1) of the Act, and am satisfied that pursuant to section 603(3), and taking into account the intent expressed in the Guide, that he is taken to have satisfied the activity test on the basis that he is working to his full capacity.
The Respondent has also raised section 603C. I noted that section 603C enables a person who is suffering partial incapacity for work on a temporary basis to not be required to satisfy the activity test. I accept this situation does not apply to Mr Fairweather as the medical evidence indicates his conditions are permanent.
I noted also that Mr Fairweather stated when giving his evidence that paragraph 40 of the SSAT decision did not correctly reflect his situation in noting that he was not willing to undertake further work. He said that he is unable to do so due to his injuries, having attempted fulltime work in 2006/7, and been unable to do it.
I am satisfied that Mr Fairweather can be taken to have satisfied the activity test because he is working to his full capacity.
CONCLUSION
I find from the evidence of Mr Fairweather, that of Mr Morgan and the medical evidence before me that the Applicant is partially incapacitated (section 16B) due to his injuries. Relying on the Applicant’s evidence and the medical evidence, I am satisfied for the reasons given above that his injuries have been fully diagnosed, treated and stabilised, and are permanent. I exercise the discretion to find he is “unemployed” within the terms of section 595(1) of the Act, and find that he can be taken to have satisfied the activity test pursuant to section 603(3) of the Act.
DECISION
The Tribunal sets aside the decision under review and decides that Mr Fairweather was “unemployed” pursuant to section 595(1) of the Act during the relevant period. He is undertaking work up to his capacity, and is taken to have satisfied the activity test while his incapacity remains unchanged.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ..............[sgd]..................................................................
Associate
Date of Hearing 16 April 2008
Date of Decision 25 June 2008
Solicitor for the Applicant Ms J Finlay, Welfare Rights Centre
Solicitor for the Respondent Ms J Gailbraith, Centrelink
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