Fayez and Secretary, Department of Jobs and Small Business (Social services second review)

Fayez and Secretary, Department of Jobs and Small Business (Social services second review) [2019] AATA 710 (16 April 2019)
Division:GENERAL DIVISION
File Number: 2018/3326
Re:Mr Mamdouh Fayez
APPLICANT

AndSecretary, Department of Jobs and Small Business
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:16 April 2019
Place:Melbourne

The Tribunal affirms the decision under review.
...[sgd].....................................................................
Ms Anna Burke AO, 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 - decision under review is affirmed.
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991 (the Act)
Social Security (Administration) Act 1999 (the Administration Act)
Cases
Secondary Materials
Social Security (Reasonable Excuse — Participation Payment Obligations) (FaHCSIA) Determination 2009 (No. 1) (the Determination)
Social Security Guide
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION/BACKGROUND

Mr Fayez (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Jobs and Small Business (the Respondent) to impose a penalty payment for non-attendance at his employment service provider (MatchWorks).
On 19 March 2018 Centrelink advised Mr Fayez via letter that his Newstart Allowance had been stopped, as he had missed an appointment with his employment service provider. Centrelink advised a decision had been made that Mr Fayez did not have a reasonable excuse for his actions and had not met one of the conditions for his payment. He had therefore incurred a non-attendance failure, and a penalty had been applied to his payment for the period 14 March 2018 to 15 March 2018. Centrelink recorded Mr Fayez had reconnected on 16 March 2018 with his service provider.
On 26 March 2018 an Authorised Review Officer (ARO) affirmed the decision to cancel Mr Fayez’s Newstart Allowance for failure to attend an appointment with the service provider on 14 March 2018. The ARO records that:
Your explanation outlining the reason why you did not attend your activity requirements did not meet the legislative requirements to change the original decision (i.e. what is a “Reasonable Excuse”). In making this decision, I note you have provided evidence regarding your medical incapacity, but it does not cover the dates of the missed appointment and non-payment period. I note that you have also lodged medical evidence suggesting you are unable to attend morning appointments. While this may be taken as a reasonable excuse for nonattendance, you have not provided sufficient evidence verifying why you were unable to negotiate another appointment time with Matchworks prior to the scheduled appoint (sic) at any time after 9 March 2018. In order to have a reasonable excuse, you were required to contact your provider beforehand if you were unable to attend for any reason.
On 1 June 2018 Mr Fayez sought a review of the AAT Tier 1 decision by this division of the Tribunal. His reasons for seeking a review were that: I believe I did everything and every right that I can do at the time by calling MatchWork[s] “Many Times” in one day and making sure that my case manager get the message and never got back to me on that day because she was in a meeting and I rang more than 7-8 times.
This application was heard on 15 February 2019. Mr Fayez attended the hearing by telephone and was self-represented, Mr Tim de Uray, government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, appeared for the respondent. Mr Fayez gave evidence under affirmation and was cross-examined by Mr de Uray.
Mr Fayez is currently 50 years of age, single, and a long term recipient of Newstart Allowance from 1991. Mr Fayez signed a Job Plan on 24 April 2018 with his service provider MatchWorks St Albans, in which he agreed to attend job interviews and do other preparatory activates as directed by his service provider. He also understood that failure to do so may result in a suspension of his payment.
On 1 August 2017 Mr Fayez was diagnosed with depression/anxiety, insomnia and chronic cough by Dr Neil Boules, his general practitioner since 1999. Dr Boules certified on 15 February 2018 that Mr Fayez has a medical problem, he is unable to sleep at night; he is on medication and is unable to go for any morning appointment (sic). Only afternoon appointment (sic).
ISSUES IN CONTENTIONS
The issues in contentions are whether Mr Fayez:
·is subject to a non-attendance penalty;
·had a reasonable excuse for the non-attendance; and
·contacted MatchWorks prior to his scheduled appointment.
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
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 42SA 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:
…
(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) (DEEWR) Determination 2009 (No. 1) (the Determination) outlines matters to be taken into account in determining if a person had a reasonable excuse:
(1) For:
(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
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.
•the requirement to attend provider appointments,
•job search requirements, generally 20 per month,
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). Mr Fayez provided his mobile phone records on the morning of the hearing.
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 Fayez; 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
On Friday 9 March 2018 MatchWorks booked an appointment with Mr Fayez by telephone for 14 March 2018 at 10:45am and issued a compliance warning notice that stated:
This is a notice under Social Security Law. This means that you must attend the appointment on Wednesday, 14 March 2018 at 10:45 AM to keep getting your income support payments. If you don’t attend, and don’t accept a job plan if required, your payment may be stopped or you may lose money.
If you can’t attend for any reason, you need to contact us before the appointment start time on … to let us know the reason why you can’t attend. If you don’t call us before the appointment, your income support payment may still be stopped or you may lose money even if you think you have a good reason for not being able to attend.
Can you confirm that you understand the requirement to attend this appointment and the possible consequences of non-attendance?
I am booking this appointment directly with the job seeker. They have indicated the time is suitable and their ability/intent to attend.
On 14 March 2018 MatchWorks advised Centrelink of Mr Fayez’s failure to attend his scheduled appointment on that day. The report clearly states that Mr Fayez had provided prior notice that he wasn’t able to attend, but he had been advised that the reason given for a non-attendance was not valid, and that he was still expected to attend. The report states:
Mamdouh stated that he did not want to attend the appointment because it was in the morning. I have advised I am happy to make afternoon appointments for him, however he didn’t attend his afternoon appointment on Friday, 9/3/18 so therefore I had to fit him in when I had an appointment time. Afternoon appointments go quickly and I had no free appointment times for him.
Mamdouh stated that he knows how to work the system and that he knows what to tell Centrelink to get his payment restored or he will just turn up at the Matchworks office and we HAVE to restore his payments” (sic). Mamdouh advised that he knows “How to work it.”
The report notes that Mr Fayez had missed numerous appointments in the past and used the same excuse for non-attendance on multiple occasions, but it was not considered valid given his circumstances. Additionally, the report states that discretion and payment suspension have been used in the past as a lever with Mr Fayez to encourage his attendance, but without success.
MatchWorks recorded on 19 March 2018 that Mr Fayez had explained why he was unable to attend his appointment stating:
… due to being on heavy night medication, he always requests for afternoon appts (sic). He said he was unable to attend the appt on 14/03/2018 as it was in the morning. He said made (sic) several contacts with Match[W]orks but was unable to speak with his EC to discuss his non-attendance.
The respondent argued that Mr Fayez had provided no reasonable excuse for why he did not attend his scheduled appointment. The respondent noted that Mr Fayez had been able to attend the Tribunal hearings in the morning.
Mr Fayez advised the Tribunal he has difficulty sleeping and takes strong medication to assist with his insomnia. He stated that he is unable to function properly in the morning, and would consider it dangerous to attempt to drive to MatchWorks to attend a morning appointment. He said he could conduct matters in the morning if it was over the phone in his home. He advised the Tribunal that he was in his bedroom on his phone during the hearing.
Mr Fayez has consistently argued he had called MatchWorks numerous times before his appointment to discuss his inability to attend on 14 March 2018. On the morning of the hearing Mr Fayez provided his telephone records which corroborated his assertion he had called MatchWorks on numerous times on 9, 13 and 14 March 2018, to seek to reschedule his appointment. He told the hearing he had rung to contact his manager Lisa but was advised she was unavailable, and he asked the receptionist to leave her messages. As he had not been able to contact Lisa he asked to speak to the manager, he spoke to the manager whom he believed to be called Qua, to explain that he needed to reschedule his appointment. He said the manager told him not to worry, that the appointment would be changed, and he would send an email to Lisa to reschedule the appointment. Mr Fayez advised he later found out Lisa had been away on annual leave with a broken leg.
The Respondent queried why Mr Fayez had taken until the hearing to produce the phone records. The Respondent reiterated that MatchWorks had not recorded any conversations with Mr Fayez in respect of his inability to attend the appointment, and therefore the phone records did not conclusively demonstrate he had attempted to notify prior to his appointment that he was unable to attend. However, even if it was accepted the calls were made, Mr Fayez still needed to provide a reasonable excuse for his non-attendance, and to date, the respondent was not satisfied that Mr Fayez had a reasonable excuse.
The Tribunal was satisfied that Mr Fayez had attempted to reschedule his appointment for 14 March 2018 prior to the appointment, an appointment made in the morning as he had not attended his scheduled appointment on 9 March 2018. MatchWorks noted they had not accepted Mr Fayez’s excuse for non-attendance as reasonable, and that is why they notified Centrelink of a breach for non-attendance.
The Tribunal has discretion in respect of the meaning of reasonable excuse, and appreciates that Mr Fayez was taking medication for his sleep issues which impacted his ability to undertake morning appointments. Any 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, given Mr Fayez’s long history of non-compliance with MatchWorks, his ability on occasions to make morning appointments, and his service provider’s determination on the day of the non-attendance to reject his excuse for non-attendance.
In addition, the Tribunal noted Mr Fayez’s failure to attend an afternoon appointment on 9 March resulted in the rescheduling of his appointment to the morning of 14 March, to which he had agreed he was able to attend, which indicated Mr Fayez had no reasonable excuse not to attend his agree appointment time on 14 March.
The Tribunal finds Mr Fayez did not have the reasonable excuse in the circumstances for non-attendance at his appointment, and is therefore subject to a non-attendance penalty of $109.62.
DECISION
The Tribunal affirms the decision under review.

33. I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke AO, Member

...[sgd]....................................................................
Associate
Dated: 16 April 2019

Date of hearing 15 February 2019

Applicant Self-represented

Advocate for the Respondent

Solicitors for the Respondent

Mr Tim de Uray

Department of Human Services,
Freedom of Information & Litigation Branch

[2019] AATA 710

16 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Judicial Review

Procedural Fairness

Penalty

Statutory Construction