Ford; Secretary, Department of Education, Employment and Workplace Relations and
[2008] AATA 323
•18 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 323
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4456
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
GREGORY FORD
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date18 April 2008
PlaceBrisbane
Decision The Tribunal:
§ varies the decision under review as it relates to the starting date of a 8 week non-payment period for a repeated failure, to provide that the period of non-payment starts in the next instalment period following 9 October 2006;
§ affirms the decision that Mr Ford had a reasonable excuse for not attending a job referral on 10 October 2006 and hence incurs no penalty; and
§ sets aside the decision under review that Mr Ford remained qualified for newstart allowance, and substitutes the decision that Mr Ford’s newstart allowance properly was cancelled in June 2007.
....................[sgd]..........................
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – newstart allowance – participation failure – starting date for non-payment period – reasonable excuse for participation failure – cancellation of newstart allowance.
Social Security Act 1991 (Cth) ss 624, 629, 630
REASONS FOR DECISION
18 April 2008 M J Carstairs, Senior Member 1. Gregory Ford receives newstart allowance, in addition to having casual and intermittent work in his trade as a carpenter and plasterer. In order to maintain his qualification for newstart allowance Mr Ford must comply with a range of requirements set out in the legislation.
2. The decisions which were reviewed by the Social Security Appeals Tribunal[1] (and in relation to which the Secretary now seeks further review), concern Mr Ford’s compliance with these requirements and the penalties that Centrelink imposed on him at different times during 2006 and 2007. Ultimately Centrelink cancelled Mr Ford’s newstart allowance for a brief period in 2007.
[1] T2.
3. The SSAT made three decisions:
§ in one decision, the SSAT agreed with Centrelink that Mr Ford ought to serve a particular 8 week non-payment period but varied the date at which it should commence;
§ in the second, the SSAT concluded that Mr Ford had a reasonable excuse for not commencing a job to which he was referred on 10 October 2006; and
§ in the third decision, the SSAT set aside Centrelink’s decision cancelling Mr Ford’s newstart allowance.
4. The Secretary considers the SSAT wrongly decided these three matters and seeks review accordingly. The hearing proceeded in Mr Ford’s absence. He was given the opportunity to attend by telephone, but declined.
5. I should observe here that the SSAT had also considered Centrelink’s rejection of a new claim for newstart allowance which Mr Ford made on 13 June 2007. The evidence now indicates that this Tribunal lacks jurisdiction with respect to that decision[2].
[2] Exhibit A1, Supplementary T-documents.
THE ISSUES
6. The issues before me therefore are:
§ the correct starting date of an 8 week non-payment period for a “repeated failure”;
§ whether Mr Ford had a reasonable excuse for not accepting a job referral on 10 October 2006; and
§ whether Mr Ford’s newstart allowance should have been cancelled in 2007.
BACKGROUND
7. The over-arching general qualification requirement for receiving newstart allowance is that the person must be actively seeking, and willing to undertake, paid work which is suitable for the person.
8. In addition, recipients are required to sign and comply with ‘Activity Agreements’. These Agreements ordinarily set out specific activities thought to be helpful in the person’s pursuit of employment, and are regularly updated. Recipients are expected to apply for advertised job vacancies. They will usually be provided with specialised assistance and referrals, and in Mr Ford’s case this was provided by The Salvation Army Employment Plus (“Employment Plus”).
9. Mr Ford had signed an Activity Agreement with respect to the period 2 August 2006 to 2 February 2007[3], the terms of which included the following activities Mr Ford was required to do in order to receive his newstart allowance:
“I will accept all referrals to suitable employment, as identified by Employment Plus…
…I will attend meetings as requested, and I will contact Employment Plus at least 48 hours before the interview if I am unable to attend…
Attend interviews with The Salvation Army Employment Plus…on 2/10/2006; 1/12/2006; 13/02/2007…
Undertake 4 job searches on the internet and in the newspapers weekly…
Attend F/N appointments with Employment Plus every second Friday at 10a.m.
To follow up on what is required to obtain BSA licence…”[3] T19.
An earlier signed agreement was in place for 13 January 2006 to 13 March 2006[4] in substantially similar terms.
[4] T7.
10. At s 629, the Social Security Act 1991 makes provision for “repeated or more serious” failures which result in newstart allowance not being payable for 8 weeks. The Centrelink decisions relating to failures of those kinds were:
§ Mr Ford had 3 “participation failures” within one year: s 629(1)(a); and
§ Centrelink had concluded, in addition, that on more than one occasion Mr Ford had failed to accept a suitable offer of employment: s 629(1)(d).
11. One 8 week period imposed for repeated failures related to the following “participation failures”[5]:
§ a failure on 3 March 2006 to attend an interview with Employment Plus;
§ a failure on 7 September 2006 to attend an similar interview ; and
§ a failure on 9 October 2006 to attend when Employment Plus referred Mr Ford to a job interview at a business called ADDECCO.
[5] Social Security Act 1991 (Cth), s 624.
12. The SSAT was satisfied that these were all failures for which Mr Ford had no reasonable excuse. I think that they were right in that conclusion, but I turn to the evidence in that regard:
§ Mr Ford did not attend appointment – 3 march 2006
With respect to this event Mr Ford told the SSAT that he agreed he did not have an excuse for not attending on a particular day and did not contest the penalty imposed with respect to not attending the interview[6]. This was a participation failure under s 624 of the Act.
§ Mr Ford did not attend appointment – 7 september 2006
The particular appointment in issue on 7 September was one that already had been rescheduled twice – 30 August 2006, and 6 September 2006. When asked then why he did not attend on 7 September, Mr Ford said that he had “forgotten”. Centrelink warned Mr Ford that this was a second participation failure and he could incur an eight week penalty[7]. Mr Ford subsequently proposed as his reasonable excuse, that he had been taking his mother to a medical appointment. However, checks with the doctor did not support Mr Ford. I do not accept that Mr Ford had a reasonable excuse for not attending and so conclude that this was a second participation failure within 12 months.
§ Mr Ford failed to attend a job referral – 9 october 2006
Employment Plus sent Mr Ford to the job interview with ADDECCO but Mr Ford told his case-worker Mr C Dawe that could not go because he was registering his motor vehicle.
Once again the facts became more uncertain as time went on. The SSAT noted the number of different explanations that Mr Ford proffered about not attending. In one statement Mr Ford said to be from a Mr G West, of “AAA Property Maintenance”, Mr Ford was said to have worked for Mr West on 9 and 10 October 2006. However, this statement, (not made until February 2007), was at odds with Mr Ford’s fortnightly payment form for that period which showed no work declared for 9 and 10 October.
In that payment form Mr Ford had declared work only with “A1 Interior Linings” on 12/13 October 2006[8]. When Centrelink checked with a sub-contractor with A1 Interior Linings, he said that although Mr Ford was expected to start, he had telephoned to say he would not be coming[9]. Another and different version of the evidence was provided to the SSAT[10]. Some of this confusion may have been engendered by the time that had elapsed between the relevant events and when Centrelink raised third participation failure. However, on balance and in view of the inconsistent evidence, I was satisfied that this was a third participation failure.
[6] T11.
[7] T21.
[8] T25.
[9] T32 at 157.
[10] T2 at [41].
13. It was undoubtedly true that, in accordance with the terms of his Agreement, Mr Ford was required to attend at any job interviews to which he was directed by Employment Plus. Mr Ford had no reasonable excuse not to attend. I was satisfied that this was Mr Ford’s third participation failure, and that all three had taken place within one year. Accordingly, the terms of s 629 and s 630 of the Act applied and imposed an 8 week non-payment period.
14. The question that the Secretary now raises is in relation to when the non-payment period commences.
FIRST ISSUE: WHAT DATE SHOULD BE SET FOR THE 8 WEEK NON-PAYMENT PERIOD?
15. Section 630(1) of the Act provides that the start-date takes as its reference the point of time when the Secretary became aware of the repeated failure. Ms M Brennan of counsel, who appeared for the Secretary, submitted that this date was 9 October 2006 because the Secretary was aware almost immediately of the third participation failure. I agree that the evidence shows this[11]. I accept the submission that the start date under s 630 is the instalment period following 9 October 2006. I vary the SSAT decision accordingly.
[11] T32 and T43 at 189.
SECOND ISSUE: DID MR FORD HAVE A REASONABLE EXCUSE NOT TO ACCEPT A JOB REFERRAL ON 10 OCTOBER 2006?
16. The SSAT looked at a further penalty imposed on Mr Ford in relation to a job he was told to commence in on 10 October 2006 – that is the day after the events on 9 October (the “repeated failure” above).
17. It can fairly be stated that the events of 9 October 2006 spilled over to 10 October 2006, and have an unusual quality about them. Employment Plus having noted Mr Ford had not attended at ADDECCO, then produced a specific job vacancy and directed Mr Ford to it without any notice.
18. The somewhat frenetic activity on the part of Employment Plus went as follows: Employment Plus telephoned Mr Ford to see if he had attended at ADDECCO. Mr Ford used the excuse that he was registering his vehicle. Mr Dawe then telephoned Mr Ford at 3:30pm and advised that he would be reporting Mr Ford to Centrelink for not attending the ADDECCO interview. In the same conversation, Mr Dawe then directed Mr Ford to start the next morning in a full-time position (identified as Job ID 138217550)[12]. The computer record of this contact was:
“I advised him I expected him to comply, that I regarded my offer as an offer to commence employment and would again report the matter to Centrelink if he failed to attend.”
[12] T37 at 171.
19. I regard as odd the circumstances surrounding this peremptory direction by Mr Dawe. It takes on an oppressive tone, when made in the context of telling Mr Ford that he was already reported to Centrelink. Of course, I must take into account that I did not hear oral evidence from anyone from Employment Plus, who might be able to explain the basis of their actions; but equally, I did not have the advantage of hearing from Mr Ford. However, I take into account Mr Ford’s evidence to the SSAT that at the time he had the prospect of another job. This appears to be true, as Centrelink paid him additional money to assist him taking up that job. I agree with the SSAT that these are relevant matters which support a conclusion that Mr Ford had a reasonable excuse for not doing as Mr Dawe directed at such unreasonably short notice. Accordingly I find that Mr Ford had a reasonable excuse and that no penalty should attach to his not attending to start work on 10 October 2006.
SHOULD MR FORD’S NEWSTART ALLOWANCE HAVE BEEN CANCELLED IN JUNE 2007?
20. Ms Brennan referred to the Act’s general requirement that a newstart allowee must be actively seeking, and willing to undertake, suitable paid work. She submitted that Mr Ford showed, over a sustained period, marked unwillingness with respect to those requirements.
21. The documentary materials reveal an extended history of non-compliance. The participation failures referred to in this review are by no means isolated occurrences: a number of penalties have been imposed on Mr Ford that pre-date these, including an 8 week non-payment period applied when Mr Ford refused employment offered to him on 4 October 2006[13].
[13] Administrative Appeals Tribunal Matter 2007/0957
22. Not only did Mr Ford not attend when he was referred for actual jobs or job interviews, Mr Ford demonstrated by his uncooperative and obstructive behaviour in dealing with Employment Plus that he was not prepared to comply with the Activity Test. I note that the authorised review officer referred to Mr Ford having attended only 19 of 59 appointments between 1 January 2006 and 1 June 2007.
23. It was clear from documented notes that Employment Plus suspected that Mr Ford was working in the cash economy. The SSAT refer to this as speculation; however the state of the evidence now suggests that suspicion may have been well founded. The evidence is far from conclusive, but Centrelink enquiries reveal important discrepancies. Some relate to the address of employers. One named employer was “AAA Property Maintenance”. The letterhead of this business gave its address as 37 Korong St Southport, but Mr Ford had previously told Centrelink that it was Shoe St Molindar, which Centrelink had ascertained was a fictitious address. Of rather more significance were enquiries revealing that AAA Property Maintenance’s mobile telephone service was a service taken out in Mr Ford’s name[14].
[14] T58 at 238.
24. In 2007, Mr Ford cited AAA Property Maintenance as his employer on 9 and 10 October 2006. But Mr Ford had not declared that employer (or any employment) at the relevant time. Another employer, Gregory Stewart, (named with respect to earnings in 2007), curiously had the same address as Mr Ford had earlier given as that of AAA Property Maintenance.
25. The new information that Centrelink has gathered suggests that that Mr Ford was fabricating evidence, and it appears he may have been working in property maintenance on his own account. There might be some simple explanation for all this, but Mr Ford has not provided it. In the context of his long history of failing to turn up to appointments, I regard Centrelink’s suspicions of him as justified. The evidence lends support to Employment Plus’ suggestion that Mr Ford was working and that this was the real reason he did not turn up for appointments with them. Clearly these are serious matters, but I would not – in the absence of rather better investigation than was undertaken – see this, on its own, as the grounds for cancellation at the time the decision was made. It may well have provided grounds for suspension of payments while the matters of concern were investigated.
26. However, in Mr Ford’s case there was such a clear pattern of obstructive behaviour and non-compliance over such a long period that I was satisfied these were circumstances justifying cancellation. Computer records show Mr Ford’s obstructive behaviour escalating in 2006 and continuing in the first half of 2007[15]. Mr Ford told Mr Dawe at one interview[16] that he would go to job interviews “when he felt like it”. Employment Plus case workers justifiably were irritated by Mr Ford’s intractable behaviour.
[15] T37.
[16] T43 at 187 – entry for 16 January 2007.
27. Against this should be balanced the evidence indicating that Mr Ford appears to have felt that too many demands were being placed on him. There is some force to this perception, if one looks at the rather frenzied demands made upon him by Employment Plus in the first weeks of October 2006. No less than 3 serious breach recommendations originate in that short period. It was also evident from the computer notes from Employment Plus that Mr Ford “upset and angry” on occasions, and on more than one occasion asked to be transferred to another service provider[17]. For reasons that are nowhere explained, his request was not met.
[17] T43.
28. The consequences of cancellation of a person’s social security payments are serious. The step to cancel such a payment should not be taken except after the most careful consideration. Often it will be preferable to first suspend a payment, so that a person is put on some notice of the consequences to follow.
29. However I was satisfied that on a number of occasions Mr Ford was firmly put on notice of the consequences of his repeated failure to cooperate.
30. On the state of the evidence before me, I am satisfied that the decision to cancel was the correct one. I take into account the evidence that suggests that Mr Ford was working in the cash economy[18]. I also take into account Mr Ford’s ongoing obstructive behaviour with Employment Plus and the inconsistent evidence concerning when and for whom he was working. Mr Ford continued to be evasive about providing employer details with reference to casual employment as late as June 2007[19].
[18] See for instance T15 at 62.
[19] T43 at 185 – entry for 1 June 2007.
31. For these reasons I would set aside the SSAT decision and reinstate the decision cancelling Mr Ford’s newstart allowance with effect from 1 June 2007.
DECISION
32. The Tribunal:
§ varies the decision under review as it relates to the starting date of a 8 week non-payment period for a repeated failure, to provide that the period of non-payment starts in the next instalment period following 9 October 2006;
§ affirms the decision that Mr Ford had a reasonable excuse for not attending a job referral on 10 October 2006 and hence incurs no penalty; and
§ sets aside the decision under review that Mr Ford remained qualified for newstart allowance, and substitutes the decision that Mr Ford’s newstart allowance properly was cancelled in June 2007.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed ………………[sgd]….…………………………
Joan Torbey, AssociateDates of Hearing 23 January 2008 and 18 February 2008
Date of Decision 18 April 2008
Counsel for the Applicant Ms M Brennan
Solicitors for the Applicant Australian Government Solicitor
The Respondent was unrepresented
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