Ghazi and Department of Family and Community Services
[2001] AATA 382
•9 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V00/1386
GENERAL ADMINISTRATIVE DIVISION)
Re: KHODR GHAZI
Applicant
And: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 9 May 2001
Place: Melbourne
Decision:The decision under review is affirmed.
(sgd) H.E. Hallowes
Senior Member
SOCIAL SECURITY — newstart allowance — cancellation — whether two activity test non-payment periods apply — inaccurate declaration of earnings — failure to attend work for dole interview
Archives Act 1983
Social Security Act 1991 ss.605, 607, 625, 630AA(1), (2), 630A, 630B(3)
Social Security (Administration) Act 1999 s.63
REASONS FOR DECISION
9 May 2001 Mrs H.E. Hallowes, Senior Member
Mr Ghazi has been in receipt of newstart allowance ('NSA") under the Social Security Act 1991 ("the Act") on a number of occasions since 1996. At the date of hearing he was being paid NSA at a reduced rate due to Centrelink recovering an overpayment after he failed to accurately declare income from casual earnings during the period 28 March 2000 to 22 May 2000.
On 23 October 2000 the Social Security Appeals Tribunal ('the SSAT") affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services ("the Secretary") made on 28 August 2000. A letter was drafted on that day to Mr Ghazi as follows:
We have recently received details of your income from employment with {Belcher's Enamelling P/L}.
As you <provided Centrelink with incorrect or misleading> details of your income from this work you <have been overpaid and also> will be penalised for breaking your activity test agreement.
<This means that if you apply for {Newstart Allowance} within <8> weeks from {24 August 2000} <we will not be able to pay you until this penalty period ends. . . .Paragraph 630AA(1)(b) provides:
630AA(1) If a person:
(a). . .
(b)knowingly or recklessly provides false or misleading information in relation to the person's income from remunerative work (the provision of information);
when required to do so under a provision of this Act, a newstart allowance is not payable to the person.
The SSAT noted that, within the previous two years, Mr Ghazi had three activity test breaches and that paragraph 630AA(2)(b) provided:
630AA(2) If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:
(a). . .
(b)if the failure or the provision of information is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure or the provision of information — an activity test non-payment period applies to the person.
and section 630A provided under the same Part of the Act:
630A If an activity test non-payment period applies to a person under this Part, the period applicable to the person is 8 weeks.
Other relevant provisions of Part 2.12 Newstart allowance of the Act provide:
605(1) Subject to this section, if a person who has made a claim for, or who is in receipt of, a newstart allowance is not a party to a Newstart Activity Agreement, the Secretary may require the person to enter into such an agreement.
605(2) Subject to this section, the Secretary may require a person who has entered into a Newstart Activity Agreement to enter into another such agreement instead of the existing one.
. . .605(3) The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:
(a)the requirement; and
(b)the places and times at which the agreement is to be negotiated.
. . .
607(1) If:
(a)a person has been given notice under subsection 605(3) of a requirement to enter into a Newstart Activity Agreement; and
(b)because the person did not:
(i)attend the negotiation of the agreement; or
(ii)respond to correspondence about the agreement; or
(iii)agree to terms of the agreement proposed by the Secretary;
or for any other reason, the Secretary is satisfied that the person is unreasonably delaying entering into the agreement;
(c)the Secretary may give the person notice that the person is being taken to have failed to enter the agreement; and
(d)if the notice is given — the person is taken to have so failed.
Note: refusal to enter a Newstart Activity Agreement disqualifies a person for newstart allowance — see paragraph 593(e).
607(2) A notice under paragraph (1)(c) must:
(a)be in writing; and
(b)set out the reasons for the decision to give the notice; and
(c)include a statement describing the rights of the person to apply for the review of the decision.
. . .
625(1) Subject to subsection (2), if:
(a)a person is required to enter into a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and
(b)the person fails to enter into a Newstart Activity Agreement (the failure);
a newstart allowance is not payable to the person because of the failure.
625(1A) If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:
(a)if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure — an activity test breach rate reduction period applies to the person; or
(b)if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure — an activity test non-payment period applies to the person.
. . .
630B(3) If, at the time of the commencement of an activity test non-payment period under this Part, the person is already subject to an activity test non-payment period (the pre-existing non-payment period), the pre-existing non-payment period is taken to end immediately before the commencement of the activity test non-payment period under this Part.Mr Ghazi said that he was told by Neil, an officer of Centrelink, that he was to be breached "for the two", for not going to a work for the dole interview, at which he may also have been asked to enter into a newstart activity agreement, and also for not declaring his income from casual earnings. It appears that Mr Ghazi understood, from what Neil said, that these two breaches would only result in one activity test non-payment period. He had been breached on two earlier occasions and he said that he would "cop it sweet . . . for eight weeks", and be subject to a non-payment period from 18 May 2000 to 12 July 2000, but he objected to a further non-payment period being imposed from 24 August 2000 to 18 October 2000 for his failure to declare his income which, to him, arose out of the same set of circumstances as he was earning income at the time he was unable to attend interview.
At the hearing Mr Ghazi agreed that in 1998 he was employed by a firm called Adecco and that he then worked for an agency called Forstaff. He said that he had originally not known much about the system of NSA and he probably forgot to tell Centrelink about all of his earnings. He did know that earnings would affect the rate of NSA payable to him. Centrelink had shown him how to fill out NSA forms, some of which were before the Tribunal, together with the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") by Mr D. Perdon, an officer of Centrelink, who appeared for the Secretary at the hearing. The documents include material with respect to Mr Ghazi's activity test breaches since early 1999. The following year Mr Ghazi had a work trial with Laminating Express. He said the difficulty for him was that he did not know what he would be paid and he "estimated" his earnings when completing NSA forms.
Mr Ghazi's application for payment of NSA, due for lodging on 16 August 1999 was before the Tribunal. It asked the question, "Did you do any part-time, casual or temporary work in the period?". Mr Ghazi recorded an employer's name and dates worked, and the Tribunal is satisfied that, as Mr Ghazi agreed Centrelink had shown him how to complete the forms, he should have been in no doubt about what was required. When asked why he did not disclose his earnings from Laminating Express on the relevant form during the following year, he said:
Well, how you going to put it on next form if you got it work later, it's all gone, you know, the time past, how you going to, say, on this day, I earned.
yet he had disclosed some casual earnings on the form lodged on 16 August 1999. He knew the system.
Forstaff pay records with respect to Mr Ghazi for the period 27 August 1999 to 23 December 1999 disclose the following earnings:
03/10/1999 . . . 232.67
17/10/1999 . . . 378.72
24/10/1999 . . . 631.20
31/10/1999 . . . 71.54
Year-To-Date Total 1314.13
The Tribunal compared this advice with Mr Ghazi's NSA application form for the fortnight ending 11 October 1999 on which he advised that he was not undertaking any part-time, casual or temporary work. At the hearing Mr Ghazi told the Tribunal that he did declare earnings when employed by another employer Don Emelio's Bakehouse and that ". . . they didn't put it on". Although his rate of NSA did not change, he assumed ". . . they probably do something, take money out or something".
The documents disclose that Mr Ghazi was advised by letter dated 25 February 2000 to attend a work for the dole seminar on 17 March 2000. The letter went on to warn him:
If you don't attend, your Newstart Allowance may be reduced or cancelled. If you re-claim Newstart Allowance, your payment may be at a reduced rate.
If your payment is reduced due to a breach, you will get your full payment again when you start Work for the Dole.
If you can't attend the seminar, please phone Centrelink on 13 2850 as soon as possible before the seminar to arrange another time.
. . .
However, on 16 March he telephoned Centrelink to advise that he was working and that he could not attend the seminar. A new appointment was made for him on 19 April 2000. Mr Ghazi did not attend that appointment. On 4 April 2000 he advised that he had commenced casual employment with Belcher's Enamelling and he disclosed earnings of $247 for the fortnight 13 March 2000 to 27 March 2000. Mr Ghazi contended that he should not have to "work for the dole" unless he had been paid NSA continuously for one year. At that time Mr Ghazi was aged 24 years. In a written submission lodged with the Tribunal after the hearing, Mr Perdon advised:
While the scheme known as "Work for the Dole" has a legislative basis [Social Security Legislation Amendment (Work for the Dole Act 1997 (No 109 of 1997], the target groups at which it is aimed are contained in policy only (paragraph 3.2.8.80 of The Guide to the Act follows). Target groups include 18-24 years olds in receipt of NSA over 6 months and 25-34 year olds in receipt of NSA over 12 months. The applicant was born on 29/11/75.
The Guide to the Act provides:
3.2.8.80 Work for the Dole
Summary
Explanation: Work for the Dole provides opportunities for unemployed people to:· gain work experience;
· build networks;
· improve their self esteem, communication skills, and motivation; and
· contribute to projects that are of value to the community.
Target Groups
The target groups for Work for the Dole are:
18-19 years old, completed Year 12, and have been receiving YA as a job seeker for 3 months or more;
18-24 years old, and have been receiving YA or NSA for 6 months or more;
25-34 years old, and have been receiving YA or NSA for 12 months or more; and
customers who, under the Mutual Obligation Initiative, failed to commence their activity within 6 weeks.
These customers can be compulsorily referred to Work for the Dole if they fit the eligibility criteria below.
During the course of the hearing Mr Ghazi acknowledged that he had been paid NSA for three months in early 1998, for more than six months between August 1998 and April 1999 and again from May 1999 until May 2000.
Voluntary participation
To participate voluntarily in a Work for the Dole project, job seekers must be:
they are aged 18 years or older, AND
they fit the eligibility criteria below.
Eligibility Criteria
Job seekers must fit the below criteria to be referred to Work for the Dole regardless of whether or not they are voluntary participants:they are receiving the full rate of YA or NSA, AND
they are not undertaking an Approved Activity, AND
they are not undertaking activities to an extent that would satisfy Mutual Obligation Initiative requirements, AND
they are not exempt from the activity test, AND
they do not have a medical condition that would be aggravated by the work conditions, AND
they have the necessary skills and experience to perform the required tasks, AND
the work conditions do not constitute a risk to health and safety, or contravene a law of the Commonwealth, State or Territory relating to occupational health and safety.
Referrals
From 1 July 2000, an automated referral system will be in place to identify potential participants and place them in a priority order, Community Work Coordinators (CWCs) select customers from this list and negotiate Preparing for Work Agreements with them. They set the number of job contacts to 4 per fortnight. Centrelink then examines each customer's file to identify any special circumstances which may make it unreasonable for these people to be placed in Work for the Dole. If this is the case, these customers are called in or telephoned to discuss their situation with Centrelink, who make referrals to other programs or record exemptions as appropriate. If the customer has a Jobseeker Diary, Centrelink also applies regional benchmarks to the number of job contacts, and then approves the agreements.
Satisfying the activity test
All participants in Work for the Dole projects are required to sign a Preparing for Work Agreement and to take reasonable steps to comply with it. Activities in the agreement include:participation in Work for the Dole for a specified period; and
satisfactory attendance at their placement; and
satisfactory conduct while on their placement; and
accepting suitable job offers and referrals to potential employers; and
making a specified number of job search contacts each fortnight.
Length of Placements
The maximum hours per fortnight that customers can be required to participate in Work for the Dole are:24 hours for those aged 18 to 20, or
30 hours for those aged 21 or over.
Customers can be required to undertake Work for the Dole for a maximum of 26 weeks each year. If customers wish to continue their placement after their 26 weeks are over, they may continue for a maximum of 8 additional weeks, IF there are no other customers available for compulsory referral. These customers must not take up Work for the Dole places if there are compulsory participants who could fill them.
Customers who obtain paid work for more than one fortnight that affects their rate of payment may choose to exit Work for the Dole if they wish. Otherwise, the CWC is required to provide a placement for the person that does not clash with their paid work responsibilities. If the paid work is only within one fortnight, the person is not exited, but they are taken to have participated in Work for the Dole for that fortnight.
Clean Slate Provisions
Customers who are serving breach penalty periods have these penalty periods waived under "clean slate provisions" when they commence Work for the Dole. This does not apply to situations where the customer stays on a placement after incurring a breach, or where the customer changes projects (but not CWCs) during their placement. Clean slating should, however, occur where a customer renegotiates their activity agreement with a different CWC.
Breaches
Customers may incur activity test breaches for failing to attend an interview (with Centrelink or the CWC) to negotiate a Preparing for Work Agreement, or for failing to sign the Preparing for Work Agreement.
Participants who fail to attend their placement for three days (consecutive or not) without a medical certificate may incur an activity test breach. If this occurs, the participant must stay on the project and complete their placement.
Participants whose conduct is unsatisfactory may incur an activity test breach. If this occurs, the participant is exited from Work from the Dole, and cannot be re-referred for six months.
If a customer incurs an eight week non-payment period while on Work for the Dole they must be exited. When their non-payment period is finished they may be re-referred to Work for the Dole to complete the remainder of their 26 weeks, but they must renegotiate their Preparing for Work Agreement first.
. . .
It is not possible for the Tribunal to confirm from the financial records before it whether Mr Ghazi fell within the "target groups" for "Work for the Dole" in February/March 2000, that is, whether he had been receiving NSA for six months or more, although at the hearing he conceded that was so. On 25 February 2000 an officer of Centrelink carried out an assessment and noted:
Customer eligibility for WFD [worked for the dole] checked today.
Both the IES and ISM system were interrogated
A/N [applicant] appears to have passed all WFD requirements.
A/N met the following eligibility Checks: Age, Service Reason, Activity type, Breach History, IES registration, Flex level.
. . .
WFD appt on 17 MAR 2000 at 11:00 AM . . .Mr Perdon advised the Tribunal at the hearing that the appointments made for Mr Ghazi in March and April 2000 had been for two purposes, negotiating an activity agreement and a work for the dole programme. Although the letter dated 25 February 2000 only referred to a work for the dole programme, the letter dated 29 March 2000 not only referred to a work for the dole programme but also advised Mr Ghazi that, during the interview, which was arranged for 19 April 2000, he "may be asked to sign an activity agreement". He received similar advice in the letter dated 27 April 2000. A further appointment was made for Mr Ghazi on 10 May 2000.
Mr Ghazi said that he had told Centrelink about working for Belcher's Enamelling, although he conceded that he had not disclosed all his earnings. When it was suggested to Mr Ghazi that he had been working on days in April and May 2000 when he should have been handing in his NSA continuation forms and ". . . that is why you couldn't hand them in until late", he replied "Yes, probably".
Mr Perdon contended that breach provisions under the Act extend not only to failure to attend interviews and to comply with activity test agreements, but also apply to under declaration of income (section 630AA of the Act). Mr Ghazi's first, second and third breaches were all with respect to providing false information in relation to his income and his first two breaches attracted rate reduction of NSA periods under sections 644AA and 644AAE of the Act. The third time he provided false information in relation to his income, his breach fell under sections 630A and 630B which provide for a non-payment period. The documents disclosed that Mr Ghazi worked for Adecco between September 1998 and December 1998, receiving nine payments totalling $3612. He worked for Forstaff between August 1998 and January 1999, receiving 11 payments totalling $2694. None of these payments had been disclosed to Centrelink. Between August 1999 and October 1999, Mr Ghazi worked with Laminating Express, Dixie Cumming, Don Emelio and Forstaff. He received only one payment from Laminating Express and one from Dixie Cumming. He worked for Don Emelio for the month of September 1999, being paid wages totalling $1199, and Forstaff for the month of October 1999, being paid $1314. None of these earnings were declared. Although the documents do not include some of the NSA continuation forms, which have been destroyed pursuant to the Archives Act 1983, Centrelink records disclose that Mr Ghazi was paid maximum rate NSA for the above periods.
Mr Perdon contended that Mr Ghazi had unreasonably delayed entering into a NSA activity agreement under section 607 of the Act through his failure to attend an interview to discuss work for the dole, and reach an activity test agreement on 16 March, 19 April, 4 May and 10 May 2000 and he was therefore subject to an activity test non-payment period under section 625 of the Act. Because it was his third breach within a two-year period, he was subject to an eight-week non-payment period. Mr Ghazi did not dispute that.
In the alternative, Mr Perdon drew attention to subsections 63(3), (5) and (9) of the Social Security (Administration) Act 1999 ("the Administration Act"), which commenced on 20 March 2000 and which provide that, if a person fails to attend an interview without reasonable excuse, they are subject to an administrative breach. Subsections 63(3), (5) and (9) provide:
63(3) If the Secretary is of the opinion that a person who is receiving, or has made a claim for, a newstart allowance should:
(a)attend an office of the Department; or
(b)contact the Department; or
(c)attend a particular place for a particular purpose; or
(d)give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to:
(e)attend that office; or
(f)contact the Department; or
(g)attend that place for that purpose; or
(h)give that information;
as the case may be.
. . .(5) If:
(a)a person is receiving, or has made a claim for, a newstart allowance; and
(b)the Secretary notifies the person under subsection (3); and
(c)the requirement of the notification is reasonable; and
(d)the person does not comply with the requirement;
a newstart allowance is not payable, and if, at a later time, a newstart allowance becomes payable to the person, an administrative breach rate reduction period applies to the person.
. . .(9) The Secretary may determine:
(a)that a social security payment that was not payable because of paragraph (4)(f) or subsection (5) is payable to a person; or
(b)that an administrative breach rate reduction period does not apply to a person under paragraph (4)(e) or subsection (5);
if the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement under subsection (2) or (3), as the case may be.
He went on to say:
So the Tribunal in respect of the third breach has to look at two issues, whether there should be a non-payment period for unreasonably delaying the activity agreement and, if not, whether there was an unreasonable failure to attend an interview in which case an administrative breach will apply. The Tribunal should also note that if it varies the breach in respect of the third breach then that also has repercussions for the second breach which was a rate reduction period because those periods overlap and the Act provides that a non-payment period over-rides a reduction period and a reduction period over-rides an administrative breach.
Mr Perdon contended that there had been a fourth breach in respect of Mr Ghazi under-declaring his earnings from Belcher's Enamelling. It was brought to light by a data match and it was nothing to do with Mr Ghazi's failure to attend his interview. The evidence before the Tribunal satisfies it that that is so and that the legislation provides that Mr Ghazi must serve his further eight week non-payment period which was to last from 24 August 2000 to 18 October 2000, but which the Tribunal understands has not been served in light of Mr Ghazi's application for review before tribunals.
The Tribunal finds that, on both 19 and 27 April 2000, Mr Ghazi was given notice under section 605 of the Act and that he unreasonably delayed entering into a newstart activity agreement under section 607. If he was working, the Tribunal does not understand why he was applying for NSA but, as he was, it was appropriate that he be required to enter into such an agreement. It was his third activity test breach in two years. A non-payment period applied. Mr Ghazi does not quarrel with that. He was advised of that breach by letter dated 11 May 2000. The Tribunal further finds that the under declaration by Mr Ghazi of his earnings with Belcher's Enamelling was a fourth activity test breach attracting a further activity test non-payment period. He recklessly provided false information with respect to his income from remunerative work. The Tribunal does not need to consider Mr Perdon's alternative contentions under the Administration Act.
It is for these reasons that the decision will be affirmed.
I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 21.03.01
Date of Decision: 09.05.01
Solicitor for the Applicant: NIL — IN PERSON
Solicitor for the Respondent: Mr D. Perdon, Advocate of Centrelink
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