Golino and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 958

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 958

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1685

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANCO GOLINO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date28 October 2008

PlaceSydney

Decision The decision under review is affirmed  

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

Rear Admiral A R Horton AO
  Member

CATCHWORDS

SOCIAL SECURITY – NewStart Allowance – NewStart Activity Agreement – three participation failures in 12 months – Applicant properly informed of appointments – no reasonable excuse – decision under review affirmed.

Administrative Appeals Tribunal Act 1975 – s 37

Social Security Act 1991 – ss 593, 601, 605, 624, 629

Social Security (Administration Act) 1999 – s 63

Social Security (Reasonable Excuse) (DEWR) Determination 2006

Guide to Social Security Law – Parts 3.2.13.10 - 30 

REASONS FOR DECISION

28 October 2008 Rear Admiral A R Horton AO, Member   

1.      Born in Italy in 1953, and having migrated to Australia in 1967, Mr Franco Golino trained and worked as a jewellery manufacturer.   He has been in receipt of unemployment benefits since April 1993, and NewStart Allowance (“NSA”) since April 1994.   Mr Golino entered into an Activity Agreement with The Salvation Army Employment Plus (“TSAEP”) on 27 November 2006.  In 2007, he failed to attend three scheduled appointments.    Centrelink did not consider that he had reasonable excuses for not so doing, and accordingly imposed a participation failure, which resulted in imposition of an eight week non payment period of NSA.    Mr Golino was informed accordingly on 3 July 2007.

2.      An Authorised Review Officer affirmed that decision on 12 October 2007.  The decision was re-affirmed by the Social Security Appeals Tribunal (“SSAT”) on 12 March 2008.  Mr Golino has applied to the Tribunal for review of that decision.

3. At a hearing before me on 25 September 2008, Mr Golino was self represented. Ms Raewyn Harlock appeared for the Secretary of the Department of Education, Employment and Workplace Relations (“the Respondent”). Pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, documents T1 – T7 and ST 1 – ST22 were taken into evidence, as was a photocopy of a cheque on the account of Mr A A Privett (exhibit A1) and the Respondent’s Statement of Facts and Contentions (exhibit R1).

ISSUES   

4.      There is no dispute that Mr Golino did not attend the relevant appointments.  The issues in this matter are:

·Was Mr Golino properly informed of the scheduled appointments. 

·Were the reasons given by Mr Golino as to his non attendance reasonable pursuant to the criteria to be considered as defined in the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (“the Determination”).

LEGISLATION

qualifying for newstart allowance

5. Section 593 of the Social Security Act 1991 (“the Act”) defines the qualifications for NSA. Relevantly, to qualify for the allowance, the person must be unemployed for the period (of the allowance), must satisfy the activity test (unless not required to do so) and to enter into and comply with the terms of a Newstart Activity Agreement. Subsection 601(1) of the Act states that subject to subsection 601(5), the activity test will be satisfied if throughout the period, the person is actively seeking and prepared to undertake paid work. Subsection 601(5) states:

If a person fails to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).

6.      Subsection 605(2) provides for a person who has already entered into a Newstart Activity Agreement to enter into another agreement, and subsection 605(3) sets out the notification requirements for this to happen. 

participation failure

7. Section 624 of the Act refers to newstart participation failures and relevantly states:

(1)   A person commits a newstart participation failure if the person:

(a)fails to comply with a requirement:

(i)that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii)that was reasonable; and

(iii)the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or

(b)fails to satisfy the activity test; or

(c)fails to comply with a requirement to enter into a Newstart Activity Agreement; or

(d)fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; 

…

(2)Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

(2A)  The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing a newstart participation failure.

(2B)  To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing the newstart participation failure referred to in subsection (1).

8. Section 629 of the Act refers to repeated or more serious failure, and relevantly states:

(1)  A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

(a)commits a newstart participation failure (the repeated failure ), having  during the period of 12 months preceding that failure…

9. Section 630 confirms that non payment starts at the commencement of the next instalment period after (the Secretary) first becomes aware of the failure. Section 63 of the Social Security (Administration) Act 1999 (“the Admin Act”) is relevant in that the payment implications of failure to comply must have been included in an activity agreement.

10. Section 624(2A) of the Act must be read in conjunction with the Determination, which requires that account be taken of the accommodation of the person, the literacy and language skills of the person (or lack thereof), any illness or impairment including neurological and psychiatric illness, drug or alcohol dependency, family circumstances and imprisonment. Departmental policy is further explained in the Guide to Social Security Law (“the Guide”).

reasonable excuse

11.Part 3.2.13.30 of the Guide provides that:

The meaning of the term reasonable excuse is discretionary but the excuse must be one that would seem plausible to a member of the public. The refusal or failure must not simply be a deliberate act of non-compliance. It is important to consider whether or not the reason for the failure to meet the requirement was foreseeable or within the person's control. The legislation also requires that the requirement was reasonable and that the job seeker was notified correctly.

…

When determining if a recipient has a reasonable excuse for failing to meet a requirement, the recipient's personal circumstances must also be considered.

12.     Part 3.2.13.30 of the Guide also lists a number of factors that may be taken into account when determining whether there is a reasonable excuse, if that factor has a “significant effect on the job seeker’s capacity to comply with the specific requirement at the time the job seeker failed to comply”.  The nature of conflicting commitments that job seeker faces must also be considered. 

EVIDENCE

13.     The documentary evidence before me, both that generated within Centrelink and as put in oral evidence to the SSAT, reveals numerous variations in the explanations given by Mr Golino as to why he failed to keep appointments with TSAEP.   That same situation prevailed in the oral evidence to the Tribunal,  where the responses from Mr Golino to my questions and those from the Respondent led to some difficulty in following his answers and also being satisfied that his answers were relevant to the questions being asked of him. 

14.     Mr Golino lives in a rented property at Canton Beach on Lake Macquarie.  The Activity Agreement with TSAEP, located at Lake Haven near Wyong, was signed by Mr Golino on 27 November 2006 (ST1).  Aside from meeting job search and other requirements, the agreement relevantly required him to “commence, fully participate and complete Intensive Support Customised Assistance with TSAEP by 27/05/2007.  I will attend regular meetings as requested, and I will contact TSAEP at least 48 hours before the interview if I am unable to attend”.   The document  stated that Mr Golino could ask to have the terms of the agreement changed at any time.  It also stated that in the event of failure to undertake the stated activities, Centrelink payments “may be stopped” and drew attention to participation failure and particularly “If you have three or more participation failures in twelve months, your payment may be stopped for 8 weeks”. 

15.     Mr Golino left school at about 15 years of age and commenced a jewellery manufacturing apprenticeship with Wallace Bishop jewellers.  He recalled that he did not complete his apprenticeship, but came to Sydney in about 1971-72, and worked for some weeks with the Department of Main Roads before employment with Diamond Traders.  Thereafter, he had contract work with various companies – interspersed with a few years working in insurance – in the jewellery manufacturing industry.   He initially stated that about 8 years ago he realised he needed finance in order to be successful in the jewellery business, and that has dictated his actions ever since.  Further evidence was to the effect that this occurred in about 1993 when his financial return from contract work was insufficient, with unacceptable delays in receiving payment.  He bought machinery to establish his own manufacturing business, but could not get sufficient finance.   Suffice, that his evidence before me consistently revolved around his enthusiasm to provide a sound financial base in order to be able to establish a jewellery manufacturing business in the Newcastle area.  In his view this was more important than obtaining employment in an area outside his experience and expertise. 

16.     Mr Golino’s interest in starting a business is reflected in ST2 which is a record of meetings with Mr Golino prepared by TSAET Employment Counsellor (“EC”) for the period 27 November 2006 to 30 April 2007.  Of note are the references on a number of occasions to Mr Golino including:  

·     “construction business…nearly up” (27 November);

·     “waiting on the OK for the construction business”  (15 December);

·     “still waiting on some money to come through to start his business” (29 January);

·     “still not happy about attending due to trying to open business in Sydney” (1 March);

·     “going well and received a licence today to enable him to open business but is not earning any money yet” (27 March); and

·     “still no answer to his business plans…by attending appointments at Lake Haven he is missing out on his appointments with investors” (20 April).  

17.     Prior to the failure to attend the three appointments in 2007, Mr Golino had a good record as regards meting NSA legislative requirements.  Two minor breaches were recorded in 1994 and 1996 (ST18).  During the hearing, I sought further advice from the Respondent as to any other recorded incidents, the response being provided by facsimile later that day.  That shows one further “administrative breach” in April 2006, resulting in a rate reduction of 16% for a 3 month period.  Mr Golino has made no comment on this additional information.  Given that he has been in receipt of unemployment benefits for some 15 years, I place little weight on these earlier breaches.

18.     On 15 December 2006, Mr Golino was advised by TSAET of an appointment at 0930 on 2 January 2007 (ST2).   He did not attend, and gave evidence that he could not remember the reason, but assumed it was because he was too busy receiving calls about financing his jewellery business.  He also suggested that he thought the meeting was the following week.  An alternate reason is recorded in an unsigned note on a Participation Compliance Incident Investigation report (ST5), which states that he had advised that he was in Sydney looking for work.   When asked to clarify the reason for non attendance, Mr Golino said that he thought he had a business appointment with a possible buyer of opals and hence could not keep the appointment with TSAET.  Centrelink assessed his non attendance as a participation failure and advised Mr Golino accordingly in a letter of 29 January 2007 (ST6), also informing him that payment of NSA might be stopped in the event of three failures in a period of 12 months. 

19.     At a meeting with TSAET on 27 March 2007, Mr Golino was advised of an appointment at 0930 on 3 April 2007 (ST2).  (An earlier note dated 6 March 2007 states that Mr Golino failed to attend an arranged Assisted Job Search (“AJS”) session that day; no evidence in respect of that failure was before me).  As to the appointment of 3 April 2007, Mr Golino gave evidence that he had been in Sydney the previous day for business appointments including with a possible financier whose funds were tied up in Europe, and subsequently they dined at Chinatown after the meetings concluded at 2200.  Mr Golino believes that because of previous arrangements, some of the money tied up in Europe is his, and when available it will enable him to set up a gold refinery business.

20.     Dinner concluded at 0200.  Mr Golino had no return ticket to Wyong, and no money to purchase one.  After walking for some hours, he travelled by train to St Leonards and stayed with a friend at Cammeray, failing to wake up in time to catch a train to Wyong for his 0930 appointment.    This evidence broadly accords with the reasons given in the note by the EC in ST2, wherein it notes that he contacted TSAET Lake Haven at 1530 that afternoon. 

21.     On 27 April 2007, Mr Golino missed a third appointment, this leading to the imposition of the eight week NSA penalty.   TSAET wrote to Mr Golino on 20 April 2007 requiring his attendance at a meeting at Lake Haven at 0930 on 27 April to enter into a new Activity Agreement; and in the event that he could not attend, he was to call the EC at least 24 hours beforehand (ST10) .  Mr Golino did not attend this appointment, his evidence being that he was in Sydney and dealing with other issues.  His evidence was confusing in that he expressed uncertainty as to whether the explanation as to his movements in Sydney, as detailed in paragraphs 19 and 20 above, referred to this missed appointment, or the appointment of 3 April.  A Centrelink record (ST12) shows that Mr Golino advised TSAET by telephone at 0930 on the morning of the scheduled appointment that he was in Sydney and unable to attend.  In evidence, Mr Golino stated that he did not ring and advise non attendance the previous day, as he “thought he could make it”.  

22.     As had been the situation previously when asked by Centrelink and the SSAT as to who he had been seeing or meeting in Sydney and what evidence he had of such meetings, Mr Golino initially told me that he could not reveal his contacts as he did not want them to know he was unemployed.   When pressed, he revealed an unprocessed cheque dated 8 March 2007, made out in his name and signed by Mr A A Privett, which he submitted was given to him in good faith as confirmation that funds would be forthcoming when they became available from Europe.  

23.     Mr Golino describes himself as being extremely busy and that letters from various businessmen – which he has not been able to produce to the Tribunal – would provide confirmation.  He has been waiting four years for the money needed to lease premises and install his machinery, and to buy gold and set up a manufacturing business.  A bad credit rating for a period prior to 2002 did not help. 

24.     Mr Golino is divorced and lives alone, paying $250 per week in rent.  His four children live in the general area; his eldest son drives him to and from Wyong as necessary.  Mr Golino now has a car, but has no licence resulting from failure to pay a fine for speeding.  He describes his health as good, and he has no family caring responsibilities.   He stated that should the decision be to affirm the 8 weeks loss of NSA due to participation failure – observing that such action has yet to be taken – he could not afford his rent, would have nowhere to store his furniture, and could have problems with his mother and children.  The latter problems were not defined.  When asked whether he could be accommodated by friends, he said “possibly”.

DECISION

25.     Mr Golino does not dispute that he failed to attend appointments at TSAET on 2 January 2007, 3 April 2007 and 27 April 2007.   TSAET notes at ST2 confirm, and those notes have not been challenged, that proper and reasonable notice of appointments was given in each case in accordance with subsections 63(2) and 63(7) of the Administration Act.  Mr Golino had been advised of the requirement to attend regular meetings vide the Activity Agreement dated 27 November 2006, as indeed he had been informed of, and accepted, the possible penalties for failing to meet the conditions of the Agreement.   Thus I find that the first issue is met, that is, Mr Golino was properly informed of the scheduled appointments.

26.     The second issue is whether Mr Golino had reasonable excuses for his non attendance at the scheduled appointments.  In the absence of any evidence to the contrary, I accept that Mr Golino was in Sydney on the day/evening prior to each of the appointments.  That was of his own choosing, he being fully aware of the requirement to be at Lake Haven early the following morning.   The matter of how and when he should return from Sydney was again his responsibility.  I find it unacceptable as an excuse that having failed to attend on the first occasion (2 January), Mr Golino failed to do so on the subsequent two occasions, seemingly for the same reason. 

27. I find that the circumstances of Mr Golino do not meet any of the criteria laid down in the Determination. He has suitable accommodation, his language skills are most adequate, he believes his health is good and there is no suggestion of dependency. From his evidence, he chose to concentrate his thoughts and efforts on reaching a position whereby he could set up a business; whatever the circumstances of his claimed meetings with investors in Sydney and the likelihood of achieving financial independence, the notes of his discussions in the TSAET document at ST2 seem to show a failure to come to grips with reality.

28.     Whilst I take into account the evidence of Mr Golino as to the effects of losing 8 weeks NSA payments, I nonetheless find that he has no reasonable excuse for the three participation failures and hence, the decision to apply an eight week non payment period is affirmed.             

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member

Signed:         .................[Sgd].........................
  Ms Radhika Prasad, Associate

Date of Hearing  25 September 2008
Date of Decision  28 October 2008
Appearance for the Applicant        Self-represented

Appearance for the Respondent    Ms Raewyn Harlock, Centrelink legal services