Glazebrook and Secretary, Department of Employment and Workplace Relations

[2006] AATA 539

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 539

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/123

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RICHARD ERNEST GLAZEBROOK

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date22  June 2006

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Senior Member

CATCHWORDS

Social Security - Newstart Allowance - Preparing for work agreement - participation agreement - Newstart Activity Agreement

Administrative Appeals Tribunal Act 1975 - s40(1)(b)

Social Security Act 1991 – ss593(1)(e), 605(1)(2)(3),607(1)(2)

Social Security (Administration Ac)t 1999 – s63(3)

Brady and Secretary to the Department of Social Security No N86/519 AAT No 3725

REASONS FOR DECISION

Miss Mary Imlach (Senior Member)         

1.      This is an application for review of a decision by Centrelink to cancel the applicant’s Newstart Allowance from 24 July 2004.

Non Appearance of Party

2.      Written notice of the hearing was sent by the Tribunal to the applicant on 27 March 2006.  This was confirmed by a further letter dated 21 April 2006.  The applicant attended the Tribunal in person on 24 April 2006 and indicated that he did not wish the hearing to proceed on the appointed date.  The applicant was advised in writing on the same date that if he wished to seek an adjournment of the hearing he would need to put his request in writing detailing the reasons why he was unable to attend the hearing.   No such written request for an adjournment was received by the Tribunal and neither the applicant nor any representative appeared at the hearing which took place on 1 May 2006.

3. Where an applicant fails to appear at the hearing of an application two courses of action are open to the Tribunal. It may proceed either under the provisions of section 40 (1)(b) of the Administrative Appeals TribunalAct 1975 which provides that:

“The Tribunal may

...

proceed in the absence of a party who has had reasonable notice of the proceeding”

The key requirement is “reasonable notice” and clearly the sending of written advice and its apparent receipt together with confirmation of its content during the attendance by the applicant at the Tribunal on 24 April 2006 clearly constitutes evidence of such “reasonable notice”.

4. The alternative procedure open to the Tribunal is to proceed under section 42A(2)(a) of the Administrative Appeals Tribunal Act 1975. Pursuant to this provision where an applicant or their representative fails to appear the application may be dismissed without proceeding to review the decision.

5.        The advocate for the Secretary argued that in view of the decision in Brady and Secretary to the Department of Social Security No N86/519 AAT No 3725 the matter should be heard pursuant to section 40(1)(b) so that the Secretary could produce evidence to the hearing and that a decision be handed down.

6. The Tribunal determined that this matter should be heard in the absence of the applicant pursuant to section 40(1)(b) of the Administrative Appeals Tribunal Act 1975 and that a decision be handed down so that both parties can be aware of their respective legal positions.

Facts

7. The documents prepared by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence. The documents revealed that the applicant has been in receipt of Newstart Allowance since 10 May 1996.

8.        On 11 March 2004 Centrelink sent a letter to the applicant advising him of an appointment with a Centrelink Personal Adviser on 25 March 2004 at 11.30 am.  The letter explained that he must attend the interview to negotiate a Participation Agreement.  It stated further that if he did not attend the interview with good reason his Newstart Allowance may be stopped.

9.        The applicant sent a letter dated 23 March 2004 to Centrelink stating he was unable to attend the appointment.  He gave no reason why he was unable to attend and requested Centrelink to “ensure that you provide fourteen days notice of an interview”.

10.      Centrelink sent the applicant three further letters in 2004 advising him that an interview had been scheduled for him to negotiate a Participation Agreement.   The relevant letters were:

Date of letter   Date of Interview             1 April 2004  29 April 2004  17 May 2004  9 June 2004  25 October 2004  4 November 2004

11.      The applicant did not attend any of these appointments.

12.      Centrelink wrote to the applicant on 14 July 2004 advising him that his Newstart Allowance had been stopped temporarily from 14 July 2004 because he had not responded to a request to contact Centrelink or to attend an interview that had been arranged for him.

13.      On 5 August 2004 the applicant delivered a letter to the Centrelink office at Rosny Park referring to the decision to stop his Newstart Allowance from 14 July 2004 and stating that he wished to appeal that decision.

14.      Centrelink advised the applicant by letter dated 13 December 2004 of the decision by an Authorised Review Officer not to allow his appeal.

15.      Based on all the evidence before it the Tribunal is satisfied that the applicant did not attend or arrange appointments for an interview with a Personal Adviser in 2004, nor attempt to notify Centrelink of his inability to attend appointments, with one exception in relation to the appointment on 29 April 2004.

The Law

16.      The law relevant to this matter is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). The Act sets out the eligibility requirements for Newstart Allowance. Section 593(1)(e) of the Act provides that a person is qualified for Newstart Allowance in a period:

“if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement”.

17.      A Participation Agreement is a Newstart Activity Agreement.  Section 605 gives Centrelink authority to require a person to enter into a Newstart Activity Agreement.

“S605(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.

S605(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”.

18.      Section 605(3) provides that:

“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”.

19.      The applicant was given notices which the Tribunal accepts as notices complying with section 605(3) requiring him to attend interviews for the express purpose of negotiating a Participation Agreement.

20.      S607(1) states:

“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 the reasonable 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;

then:

(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”.

21.      S607(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”.

22.      The evidence before the Tribunal shows the applicant failed to attend four appointments arranged for him to negotiate an agreement and that he failed twice to agree to the reasonable terms proposed by the Secretary in June 2004 that he make and appointment at a time suitable to himself.

23.      The applicant with one exception has offered Centrelink no cause for being unable to attend the appointments made for him and has identified no reason why he will not make an appointment at a time to suit himself.  The Tribunal concludes from the evidence that the applicant was unreasonably delaying entering into an agreement within the meaning of s607(1)(b).

24.      Section 607(1)(c) requires the Secretary to give the applicant notice that he is taken to have failed to enter into an agreement.  The applicant was not sent a notice explaining that he had failed to negotiate a Participation Agreement until 13 December 2004.  Previous notices advised him that his payments had been suspended as he had failed to attend an interview.  The date the applicant lost qualification for Newstart Allowance therefore was the date of the notice, 13 December 2004.

25.      The question remains whether the applicant should be paid Newstart Allowance for the period 24 July 2004 to 12 December 2004 since he did not lose qualification for Newstart until 13 December 2004.

26. Section 63(3) of the Administration Act provides that:

“If:

(a)       the Secretary requires a person under subsection (3) of a requirement;  and

(b)       the requirement is reasonable;  and

(c)       the person does not comply with the requirement; 

then:

(d)       Newstart Allowance or special benefit is not payable to the person”.

27. The Tribunal is satisfied that the Secretary has authority pursuant to section 604(1) of the Act to require the applicant to attend an interview for the purpose of negotiation of a Participation Agreement and the requirement therefore was reasonable. The interviews were all scheduled to give the applicant sufficient notice and time to organise his affairs so that he could attend the interviews and he was given the courtesy of an opportunity to nominate times convenient to himself.

28. The applicant’s Newstart Allowance was not payable for the period 24 July 2004 to 12 December 2004 because the Tribunal finds the requirement that the applicant attend the interviews was a reasonable requirement within the meaning of section 63(5) of the Administration Act and that the applicant failed repeatedly to attend the interviews without explanation.

29.      The decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  1 May 2004
Date of Decision  22 June 2006
Counsel for the Applicant         Applicant did not attend
Counsel for the Respondent     Ms M Baulch
Solicitor for the Respondent     Centrelink