Garry Worthington and Secretary, Department of Social Services

[2014] AATA 358

[2014] AATA 358 

Division

GENERAL ADMINISTRATIVE DIVISION

File Numbers

2012/5469

2013/5873

Re

Garry Worthington

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	6 June 2014
Place	Adelaide

1.In application 2012/5469, the decision under review is affirmed; and

2.In application 2013/5873, the decision under review is also affirmed.

............... [Sgd ....................................................

Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability services – Rehabilitation program – Decision to "exit" applicant from disability employment services program – Decision to issue notice requiring applicant to attend appointment with different provider – Whether appropriate to refer applicant to another provider – More intensive assistance required to address identified barriers to employment – Decisions under review affirmed.

LEGISLATION

Disability Services Act 1986, ss 21A and 26

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

REASONS FOR DECISION

Deputy President K Bean

6 June 2014

1. This matter involves the review of two separate decisions.  The first decision was made by the Social Security Appeals Tribunal (SSAT) on 15 November 2012 and the second decision was made by a decision-maker with delegated authority to make decisions under the Disability Services Act 1986 (the Disability Services Act) on 28 October 2013.

2. Before attempting to define with more precision the decisions and issues for consideration by the Tribunal, it is appropriate that I first set out the factual background to this matter.

   BACKGROUND

3. The applicant, Mr Worthington, is 58 years of age and was most recently granted Newstart Allowance (NSA) from 31 October 2006, which he continues to receive.  Prior to August 2012 he was participating in an employment services program conducted by CRS Australia (CRS), as part of the obligations associated with his receipt of NSA.  However, an Employment Services Assessment (ESAt) was conducted by Centrelink on 1 August 2012 and a report was prepared that day.  That report recommended that Mr Worthington be referred to a “Stream 4 Service” with a “mainstream” employment services provider.[1]  On the same day, Job Services Australia[2] also issued a notice to Mr Worthington to attend an interview with CareerSystems, a mainstream employment services provider, on 17 August 2012.

   [1] Exhibit 1, T6/35-39.

   [2] Job Services Australia assists job seekers to obtain employment and undertake skills development.  It is comprised of a number of organisations which are funded by the Australian Government to provide employment services and support to job seekers and employers.

4. On 17 August 2012, Disability Employment Services (DES)[3] wrote to Mr Worthington advising that they had “exited” him from the Disability Employment Services – Disability Management Services (DES-DMS) program conducted by CRS.

   [3] Disability Employment Services assists job seekers with a disability, injury, or health condition to obtain and maintain employment.

5. Mr Worthington duly attended the appointment on 17 August 2012 with CareerSystems, but also requested a review by an Authorised Review Officer (ARO).  On 25 September 2012 an ARO affirmed the decision to require Mr Worthington to attend the appointment with CareerSystems, and Mr Worthington subsequently sought review of that decision by the SSAT.

   PROCEDURAL HISTORY AND REVIEWABLE DECISIONS

   The first reviewable decision

6. The SSAT formed the view that Mr Worthington’s main grievance was the decision to refer him to a mainstream employment service provider and “exit” him from the program conducted by CRS, rather than the decision to require him to attend the interview on 17 August 2012.

7. However, the SSAT concluded, correctly in my view, that the only decision which it had jurisdiction to review was the decision made by Centrelink to give Mr Worthington the notice dated 1 August 2012 requiring him to attend the appointment with CareerSystems. The SSAT specifically noted that it did not have jurisdiction to review the decision to “exit” Mr Worthington from the DES-DMS program, which was made under the Disability Services Act.

8. Like the SSAT, I am satisfied that a notice of the kind given to Mr Worthington, requiring him to attend the interview with CareerSystems, is reviewable by the SSAT and the Tribunal.[4]  However, the SSAT concluded as follows:

   … [A]fter giving this issue and the arguments put on Mr Worthington’s behalf careful consideration, the Tribunal can see no practical purpose in doing any other than affirming this decision, and the Tribunal does affirm the decision.

   39.  The unavoidable fact is that, whatever steps or processes led up to Mr Worthington attending this appointment, on 17 August, Mr Worthington did attend the offices of Career Systems Salisbury at the appointed date and time.  There is … in the Tribunal’s view, no practical point in setting aside the notice, on the merits, even if the Tribunal could find good reason to do so.[5]

   [4] See ss 63, 142, 144, 179 and 181 of the Social Security (Administration) Act 1999.

   [5] Exhibit 1, T2/11-12.

9. At the hearing before me on 29 April 2014, Mr Worthington accepted that as he had in fact attended the appointment with CareerSystems on 17 August 2012, this was no longer an issue in substantive terms.  On that basis, I am satisfied that there would be little practical utility in the Tribunal setting aside or varying the decision to issue that notice, and I propose to affirm that decision.

   The second reviewable decision

10. Following Mr Worthington’s application to this Tribunal for review of the SSAT’s decision, a number of directions hearings were held in application number 2012/5469 to establish whether the Tribunal had jurisdiction to review the decision made under the Disability Services Act, to “exit” Mr Worthington from the DES-DMS program conducted by CRS.

11. Section 21A of the Disability Services Act relevantly provides as follows:

    How are rehabilitation programs ended?

    (1) Provision of a rehabilitation program to a person must end:

    ...

    (b) after the time determined by the Secretary under subsection (1A).

    ...

    (1A) The Secretary may determine that provision of a rehabilitation program must end after a specified time.

    (2) In making a determination under subsection (1A) the Secretary must comply with guidelines (if any) formulated under section 5 that relate to this section.[6]

    (3) The Secretary must cause a copy of the determination to be provided to the person within 14 days of the Secretary making the determination.

    [6] For completeness, I note that the Disability Services (Rehabilitation Services) Guidelines 2007 made under section 5 of the Disability Services Act do not relate to section 21A.

12. Although an initial decision had been made on 17 August 2012 pursuant to s 21A, and Mr Worthington had sought review of that decision under s 26 of the Disability Services Act, as he was entitled to do, I ultimately determined that a reviewable decision had not in fact been made by a person with the appropriate delegation pursuant to s 26, which provides as follows:

    Review of decisions under Part III

    (1) In this section, reviewable decision means a decision (within the meaning of the Administrative Appeals Tribunal Act 1975) of the Secretary, or a delegate of the Secretary, under this Part.

    (2) A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Secretary within 30 days after the day on which the decision first comes to the notice of the person, or within such further period as the Secretary allows, request the Secretary to reconsider the decision.

    (3) There shall be set out in the request the reasons for making the request.

    (4) Upon receipt of the request, the Secretary shall reconsider the decision and may affirm or revoke the decision or vary the decision in such manner as the Secretary thinks fit.

    (5) Where the Secretary affirms, revokes or varies a decision, the Secretary shall, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for affirming, revoking or varying the decision, as the case may be.

    ...

    (6) Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions that have been affirmed or varied under subsection (4).

13. Accordingly, the respondent’s representative, Mr Parker, referred the decision for reconsideration in accordance with the procedure set out above.  On 28 October 2013, the decision to exit Mr Worthington from the DES-DMS program with CRS was affirmed by a delegate of the Secretary,[7] giving rise to application number 2013/5873.  I am satisfied that it is that decision which is the subject of Mr Worthington’s concern, and that the Tribunal has jurisdiction to review that decision.

    [7] Exhibit 2.

14. In that decision, the decision-maker gave detailed reasons for affirming the original decision to exit Mr Worthington from the DES-DMS program.  Those reasons included the following:

    ·The DES-DMS program provides services to job seekers with a temporary or permanent disability, injury, or health condition who require the assistance of a disability employment program and who may require flexible ongoing support but are not expected to need regular, long-term support in the workplace;

    ·As the DES-DMS program is focused on short-term rehabilitative support, it is unusual for participants to be engaged in a DES-DMS program over an extended period of time;

    ·Mr Worthington had been engaged in both the Vocational Rehabilitation Program (the predecessor to DES-DMS) and the DES-DMS programs with CRS since 2003, being an unusually long time to be engaged in the DES-DMS program;

    ·On 30 June 2012, in anticipation of Mr Worthington reaching 78 weeks of employment assistance in his most recent DES-DMS program and consistently with a policy promulgated by the relevant Department, CRS initiated a Program Review process and completed a Program Summary, which noted that:

    -     CRS had not been able to successfully assist Mr Worthington to obtain employment or to improve his qualifications in the past two DES-DMS programs that he had completed;

    -     He was reluctant to accept assistance from CRS;

    -     Mr Worthington often refused CRS’s offers of intervention;

    -     Mr Worthington had suggested that he did not require disability management assistance; and

    -     As a result, the Program Summary concluded that it was unlikely that Mr Worthington would benefit from further participation in the DES-DMS program, and that he may benefit from the assistance of another employment program;

    ·The result of the Program Review was based on the outcome of an ESAt conducted by an independent assessor engaged by the Department of Human Services.  The ESAt conducted on 1 August 2012 recommended that Mr Worthington be referred to a Stream 4 program;

    ·As Mr Worthington decided not to provide the assessor with medical evidence that disclosed a medical condition or disability, the ESAt conducted on 1 August 2012 was a Non-Medical Condition ESAt; and

    ·Mr Worthington’s referral to and commencement with a Stream 4 program provider meant that he ceased to be eligible to participate in the DES-DMS program and as a consequence he was exited from that program.[8]

    [8] Exhibit 2.

15. A copy of the ESAt report is also before me.[9]  That report contains the following recommendation:

    Given that there is evidence to suggest that client has had no success in obtaining employment after 10 years in the DES-DMS (CRS) Program a referral to Stream 4 Services is recommended.  The client presents with barriers to employment and will need assistance from Stream 4 Services Provider to assist him with addressing his presenting barriers, provide with ongoing support and eventually prepare for employment.[10]

    [9] Exhibit 1, T6/35.

    [10] Exhibit 1, T6/38.

    MR WORTHINGTON’S CONTENTIONS

16. Mr Worthington nevertheless contends that he should not have been exited from the DES-DMS program, for reasons including the following:

    ·By placing him with CareerSystems, Centrelink ignored the fact that Mr Worthington had previously been exited from a mainstream provider because it was a “caustic environment” for him;[11]

    ·Mr Worthington was told by staff at CRS that he was “doing everything right and they wished they had more people like [him]”, and there was no apparent justification for terminating his involvement with CRS;[12]

    ·It was “illegal” for CRS staff to communicate with Centrelink on Mr Worthington’s behalf;

    ·It was wrong for CRS to send Mr Worthington to Centrelink for a review, and it could have acted more appropriately by recommending that his time with CRS be extended;[13] and

    ·Mr Worthington believes that CRS is the most appropriate agency to provide the support he needs to secure a job, and his recent experience with CareerSystems (now Maxima[14]) has been negative and unsupportive.[15]

    [11]  Exhibit 3.

    [12] Exhibits 4 and 7.

    [13] Exhibits 4 and 5.

    [14] Exhibit 9.

    [15] Exhibit 7.

    MR WORTHINGTON’S EVIDENCE

17. In the course of his oral evidence, Mr Worthington agreed that it was factually correct that he had not had any success in obtaining employment after approximately 8 years in the DES-DMS program with CRS, but added that he had been on the verge of potentially being able to obtain work on at least one occasion, in 2007, and had also advised CRS that he was determined to obtain employment by Christmas 2012.

18. Mr Worthington also said that he was “independent” during his time at CRS, and was fully committed to searching and applying for jobs on his own.  He confirmed that he was reluctant to accept CRS’s assistance “towards the end” because he “didn’t want to be pushed into something just so they could get me off the books”.  When asked whether he refused disability management assistance, Mr Worthington replied that he did not consider that he has a disability as such and confirmed under cross-examination that there was “nothing to manage”.  He gave evidence that whilst he did not provide the assessor with any medical evidence for the purposes of the ESAt, Centrelink did have information about an assessment conducted by a psychologist in 2003 which “got [him] into CRS”.[16]  He ultimately tendered a copy of this report, by Ms Annabelle Murray dated 6 December 2003, which did not indicate that he was suffering from any disability or medical condition.[17]

    [16] Exhibit 8.

    [17] Exhibit 8.

19. When asked whether there are any differences between CRS and Maxima which cause him to feel that CRS is more appropriate for him, Mr Worthington said that he is more comfortable with a government agency than with a private provider, and explained that CRS has a more personal business approach.  He expressed concern that private providers are not interested in him and only care about getting him a position.  He reiterated that he was happy with CRS, and that if he could not return there, he would like Centrelink to leave him to job search on his own.

20. Under cross-examination, Mr Worthington explained that he undertook a Certificate II and Certificate III in Information Technology while at CRS, but that he was unable to complete the courses because of the way they were presented, in the sense that he felt like he was “teaching [himself]”.  He said that he otherwise would have wanted to finish the training.

21. It was put to him by the respondent’s representative, Mr Parker, that he had no basis for not wanting to go to Maxima because he did not know what Maxima could do for him, or offer in the way of services.  Mr Worthington said that he had applied for hundreds of jobs through agencies like Maxima over the years, and had previously been with a Stream 4 provider which he found to be “horrific”. 

    CONSIDERATION

22. The relevant Policy Advice, No. 63, provides that the purpose of an ESAt is to ensure that job seekers are referred to the most appropriate employment service assistance, based on an assessment of the impact of identified barriers on their capacity to participate in employment.[18]  The “Guide to Determining Eligibility and Suitability for Referral to Employment Services” in Attachment A sets out the eligibility requirements for Streams 1-3 and Stream 4.  That document also helpfully sets out the considerations to be taken into account in the course of a Disability Employment Services Program Review[19], namely:

    ·Whether the job seeker has made reasonable progress against the activities listed in the Employment Pathways Plan or towards gaining employment or participating in education or training;

    ·Whether the job seeker has undertaken a recent period of employment, education or training;

    ·Whether the job seeker has successfully completed a period of work experience;

    ·Whether any remaining non-vocational barriers would be likely to affect the job seeker’s participation in employment assistance or an employment, training, or education placement over the next six months.  If so, the assessor should consider whether a referral to another employment service may better address their needs; and

    ·Whether the job seeker is willing to participate in extended employment assistance.[20]

    [18] Respondent’s further material filed on 2 May 2014, Policy Advice No. 63, p 1.

    [19] This was issued by the then Department of Education, Employment and Workplace Relations.

    [20] Respondent’s further material, above n 18, p 24.

23. I am satisfied that it was appropriate for CRS to initiate a Program Review process and complete a Program Summary in anticipation of Mr Worthington reaching 78 weeks of employment assistance in his most recent DES-DMS program.  I understand that the proper procedure was followed when CRS referred Mr Worthington for an ESAt, because he was not participating in significant education, training or employment at that time.[21]  The Program Summary prepared by CRS was then considered by the assessor for the purposes of the ESAt. 

    [21] Respondent’s further material, above n 18, p 23.

24. I also accept that the DES-DMS program is focused on short-term rehabilitative support, and it is unusual for participants to be engaged in a DES-DMS program over an extended period of time.  However, I nevertheless need to consider whether the decision to refer Mr Worthington to a Stream 4 Service was correct having regard to the evidence before me, and the information about Stream 1 - 4 Services filed and served by the respondent after the conclusion of the hearing.[22]

    [22] Respondent’s further material, above n 18.

25. On the basis of the material before me, it appears that Stream 4 Services differ from Streams 1-3 in that they focus on addressing the barriers which prevent job seekers from obtaining employment or undertaking skills development.  The Employment Services Assessor identified five barriers in Mr Worthington’s case: confidence, anger, limited work skills, social interaction, and limited job seeking skills.  I did not understand Mr Worthington to dispute the accuracy of those findings.

26. It is significant that Mr Worthington has been participating in the DES-DMS program since 2003, and has not been able to secure employment in that time.  Having said that, I accept what he says about having been on the verge of obtaining employment on at least one, and potentially other, occasions in that period.  It is also relevant that Mr Worthington considers himself to be independent in the context of his job seeking activities, and admits that he was reluctant to accept assistance from CRS.

27. With respect to Mr Worthington’s concerns about being referred to a “mainstream” provider, Maxima, I accept what Mr Worthington says about having had negative experiences with mainstream providers in the past.  However, I have also had regard to the fact that Mr Worthington does not appear to have discussed with Maxima what services it may be able to offer to him, including, for example, access to a computer and telephone, which he used relatively independently at CRS.

1. On balance, having regard to the evidence and the considerations outlined in paragraph 22 above, I have concluded that it was appropriate to refer Mr Worthington to a Stream 4 Service, in the expectation that he would receive more intensive assistance to overcome the barriers identified by the Employment Services Assessor, and eventually obtain employment.  In reaching that conclusion, I have also taken into account the fact that I do not consider that continued assistance by CRS would have been likely to lead to Mr Worthington obtaining an employment placement within six months of the primary decision being made in August 2012. 

2. I acknowledge that Mr Worthington has expressed an extremely strong preference to remain with CRS, and explained the reasons for this.  Ultimately however, my role is to make the correct or preferable decision on the material before me, paying appropriate regard to any applicable government policy.[23]  Whilst I accept that Mr Worthington would much prefer to remain with CRS, having considered all of the material before me, I have concluded that, given his history with CRS and the outcome of the ESAt, the decision to “exit” Mr Worthington from the CRS program and refer him to a Stream 4 provider for more intensive job seeking assistance was appropriate.  I have therefore decided to affirm that decision.

   [23] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

3. For completeness and for the reasons explained at paragraph 9 above, I have also decided to affirm the decision requiring Mr Worthington to attend the appointment with CareerSystems on 17 August 2012, which was the subject of application 2012/5469.

   DECISION

4. The decisions under review are affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

......... [Sgd] .......................................

Associate

Dated 6 June 2014

Date of hearing	29 April 2014
Date final submissions received	19 May 2014
Applicant	In person
Advocate for the Respondent	Mr A Parker
Solicitors for the Respondent	Program Litigation and Review Branch Department of Human Services