Hall and Secretary, Department of Education, Skills and Employment (Social services second review)

Hall and Secretary, Department of Education, Skills and Employment (Social services second review) [2020] AATA 4665 (18 November 2020)
Division:GENERAL DIVISION
File Number:2019/8426
Re:Simon Hall
APPLICANT

AndSecretary, Department of Education, Skills and Employment
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:18 November 2020
Place:Perth

The Reviewable Decision, being the decision of the Authorised Review Officer as affirmed by the AAT1 on 29 November 2019, is affirmed.
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – suspension and cancellation of Newstart Allowance – Employment Pathway Plan (Job Plan) – mutual obligation failure – reasonable excuse – whether Applicant had reasonable excuse for failing to sign Job Plan – whether Applicant advised of reconnection requirement – whether Applicant failed to meet reconnection requirement within the four week time-limit – whether Newstart Allowance correctly suspended and cancelled – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 593, 593(1), 601, 605, 605(2), 606(1)
Social Security (Administration) Act 1999 (Cth) – ss 42AC, 42AF(1), 42AL, 42AM, 42AM(2), 42AM(3), 63(2)(c)
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide – 3.11.14.30
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
18 November 2020
BACKGROUND TO THE APPLICATION

The Applicant has been receiving the Newstart Allowance (now called the Jobseeker Payment) since 22 March 2016 (T10/50).
On 18 June 2019, the Applicant signed an Employment Pathway Plan (Job Plan) with his employment services provider (the Provider) (T10/60 and ST1/29-33).
On 13 September 2019, the Applicant’s Newstart Allowance was suspended from

11 September 2019 because the Provider’s records showed that he did not enter into a Job Plan when he was asked to do so on 12 September 2019 (Suspension Decision). The letter further advised that the Applicant should contact the Provider as soon as possible to discuss the reasons he did not meet this requirement and to find out what he needed to do to have his payment restarted. The letter advised that if he did not contact the Provider and meet any requirements, his Newstart Allowance may be cancelled (T4/33).
In a letter dated 11 October 2019, the Applicant was advised that his Newstart Allowance had been cancelled (Cancellation Decision). The following reasons were given for the cancellation (T5/35):
You were asked to go to a new appointment or start doing an activity so you could meet the requirements for receiving your payment again.
As you have not done this, and it has been more than four weeks since you were asked to do this, it has been decided that you are not meeting the requirements of your payment. This means your Newstart Allowance has been cancelled from

11 October 2019.
The Applicant requested a review of the Suspension Decision and the Cancellation Decision (T6/37). However, on 16 October 2019 an Authorised Review Officer (ARO) affirmed both of these decisions (ARO Decision) (T7/38-41).
The Applicant signed a new Job Plan on 22 October 2019 (ST1/35).
The Applicant lodged an application seeking review of the ARO Decision in the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal) (T2/8). However, on 29 November 2019, the AAT1 affirmed the ARO Decision (T2). The ARO Decision as affirmed by the AAT1 is the Reviewable Decision that is currently before the Tribunal.
On 19 December 2019, the Applicant sought review of the Reviewable Decision in the General Division of the Tribunal (AAT2) (T1).
ISSUES
The issue that requires determination by the Tribunal is whether the Applicant’s Newstart Allowance was correctly suspended and cancelled. More specifically, the Tribunal must determine:
(a)whether the Suspension Decision was correct because the Applicant committed a mutual obligation failure by failing to sign a Job Plan when he was asked to do so on 10 September 2019 without a reasonable excuse; and
(b)whether the Applicant’s Newstart Allowance was correctly cancelled because the Applicant failed to meet a reconnection requirement imposed on him within the four-week time limit.
LEGISLATIVE AND POLICY FRAMEWORK
The relevant legislative provisions are contained in the:
(a)Social Security Act 1991 (Cth) (Act); and
(b)Social Security (Administration) Act 1999 (Cth) (Administration Act).
To be qualified for the Newstart Allowance a person must be unemployed, must meet any activity test or participation requirements that apply to them (including entering into a Job Plan and complying with the requirements in the Job Plan), and must be prepared to enter into a new Job Plan if required (see ss 593, 601 and 605 of the Act).
Specifically, s 593(1) of the Act provides, in part, that:
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a jobseeker payment in respect of a period if:
…
(d)if subsection 605(1) or (2) applies to the person, at all times during the period when a Jobseeker Employment Pathway Plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan; and
(e)if the person is required by the Secretary to enter into a Jobseeker Employment Pathway Plan in relation to the period, the person enters into that plan; and…
Section 605(2) of the Act provides that the Secretary may require a person to enter into a new Job Plan:
(2) If a Jobseeker Employment Pathway Plan is in force in relation to a person, the Secretary may require the person to enter into another plan instead of the existing one.
Section 606(1) of the Act provides that the Job Plan will contain one or more requirements that are suitable for the person:
(1)Subject to sections 607 to 607B, a Jobseeker Employment Pathway Plan that is in force in relation to a person is to contain one or more terms (the requirements) that:
(a) the person is required to comply with; and
(b) the Secretary regards as suitable for the person.
The Secretary can require a person to attend an office of the Department or “a particular place for a particular purpose” (s 63(2)(c) of the Administration Act).
Section 42AC of the Administration Act sets out when a person will commit a “mutual obligation failure”. It provides:
(1)A person commits a mutual obligation failure if the person is receiving a participation payment and any of the following applies:
…
(b)the person fails to comply with a requirement, under section 501, 544A, 605 or 731L of the 1991 Act, to enter into an employment pathway plan;
…
(Original emphasis.)
Section 42AF(1) of the Administration Act provides that if a person commits a mutual obligation failure their payment must be suspended:
Compliance action for mutual obligation failures
Usual rule
(1)If a person commits a mutual obligation failure (the relevant failure), the Secretary must:
(a)determine that the person's participation payment is not payable to the person for a period (see section 42AL); and
(b) take action under subsection (2) (if applicable).
Section 42AL of the Administration Act sets out how the period of the suspension is calculated:
Payment suspension periods for mutual obligation failures and work refusal failures
(1)If the Secretary determines under section 42AF or 42AG that a participation payment is not payable to a person for a period, the participation payment is not payable for the period (the payment suspension period) worked out under this section.
(2) The payment suspension period begins at the start of:
(a)the instalment period in which the person commits the mutual obligation failure or the work refusal failure (unless paragraph (b) applies); or
(b)if the Secretary determines that a later instalment period is more appropriate--that later instalment period.
(3) The payment suspension period ends immediately before:
(a)the day the person complies with the reconnection requirement imposed under subsection 42AM(1) (unless paragraph (b) of this subsection applies); or
(b)if the Secretary determines that an earlier day is more appropriate--that earlier day.
…
Section 42AM of the Administration Act provides that the Secretary must impose a reconnection requirement if the Secretary has decided that a participation payment is not payable to a person for a period, including under s 42AF for committing a mutual obligation failure:
Reconnection requirements for mutual obligation failures and work refusal failures
(1)The Secretary must impose a requirement (the reconnection requirement) on a person if the Secretary determines under section 42AF or 42AG that a participation payment is not payable to the person for a period.
(2)The Secretary must notify the person, in any way the Secretary considers appropriate, of:
(a) the reconnection requirement; and
(b) the effect of not complying with the reconnection requirement.
(3)The Secretary must determine that the person's participation payment is cancelled if:
(a)the Secretary does not determine an earlier day for the purposes of ending the person's payment suspension period under paragraph 42AL(3)(b); and
(b)the person fails to comply with the reconnection requirement within 4 weeks after it is notified under subsection (2) of this section.
(4)If the Secretary makes a determination under subsection (3), the participation payment is cancelled at the end of the 4 weeks mentioned in paragraph (3)(b).
The Guides to Social Policy Law: Social Security Guide (the Guide) provides, at part [3.11.14.30], that a person will incur a connection failure if they fail to enter into a Job Plan without a reasonable excuse. It also explains that the person will be required to meet a reconnection requirement to reclaim their payment:
Connection failure for failing to enter into a Job Plan
(Note that a Job Plan is an EPP under social security law (3.11.2).)
A job seeker currently in receipt of an income support payment will incur a connection failure if they fail to enter into a Job Plan without a reasonable excuse. Payment will be restored once they agree to attend a reconnection appointment at which they will be given another chance to enter into a Job Plan. A second consecutive refusal to enter into a Job Plan may result in a loss of qualification and cancellation, rather than the application of a second failure, unless the instances are separate and relate to different Job Plans.
Where payment is cancelled, the job seeker will need to reclaim their payment and demonstrate their qualification before they can be paid again. Arrears for the period of cancellation are not payable due to the lack of qualification.
A failure for refusing to enter into a Job Plan cannot be applied if the terms of the Job Plan were unlawful or unreasonable for the job seeker, given their circumstances.
Later at part [3.11.14.30], under the heading, “Reconnection requirements & failures – general”, the Guide explains that if a person fails to meet their reconnection requirement by failing to enter into a Job Plan without a reasonable excuse, the person’s payment may be cancelled:
If a job seeker has incurred a connection failure for refusing to enter into a Job Plan and has been given a reconnection requirement to attend a further appointment to enter into a Job Plan, they may incur a reconnection failure for not attending the appointment. However, if they attend but refuse to enter into a Job Plan or, when discussing their failure to attend they indicate that they still do not want to enter into a Job Plan, the provider should report this to Services Australia and, if Services Australia finds they had no reasonable excuse, Services Australia should cancel the job seeker's payment.
Part [3.11.14.30] of the Guide further states, under the heading, “Further reconnection requirements – general”:
A job seeker who fails on a second consecutive occasion to meet a requirement to enter a Job Plan should have their payment cancelled so no further reconnection requirement needs to be given.
DID THE APPLICANT COMMIT A MUTUAL OBLIGATION FAILURE WITHOUT A REASONABLE EXCUSE?
The Secretary submitted that the Applicant committed a mutual obligation failure because he refused to sign his Job Plan when he attended an in-person meeting with his employment services provider on 10 September 2019.
At the AAT2 hearing the Applicant claimed that he “entered into a mutual obligation on the 10^th”. However, he provided the qualification that this “doesn’t mean I had to sign it on the 10^th” (transcript/17). When asked to clarify what he meant by his statement that he “entered into it [the Job Plan that comprised the mutual obligation] on the 10^th”, the Applicant confirmed that this meant he had a discussion about his Job Plan, but could not agree on the terms of it (transcript/17, 21). The Applicant further stated that he did not refuse to sign the Job Plan, and that what he had asked for was time to go over it (transcript/18). The Applicant claimed to have attended an appointment on 17 September 2019 where he signed the Job Plan (transcript/8-9, 19).
The records of the Provider show that the Applicant attended a face to face appointment at the office of the Provider on 10 September 2019 but did not sign his Job Plan (T7/40, ST1/5, ST1/67). The Applicant’s refusal to sign his Job Plan on 10 September was also confirmed in the following electronic file note made on 12 September 2019 (ST1/67) which stated:
RM [Regional Manager] called Simon to discuss him refusing to sign his job plan after 48 hours notice was given. Simon states that the wording on the job plan around suspending payments for not meeting mutual obligation requirements was against social security law as he gets 3 strikes before his payments were suspended and it was just us skirting the law. RM tried to explain the compliance framework to Simon, but he refused to listen, stating he knew the rules better than us. RM suggested the [sic] Simon discuss this with centrelink but he again refused as he knows the rule. Simon then stated for us to cut him off as he didn’t care he was going to talk to his lawyer.
The next electronic record shows that the Applicant next attended the office of the Provider on 18 September 2019 (ST1/66). It records that the Applicant was “refusing to sign his job plan” and that another appointment had been booked on 20 September 2019. This appointment was rescheduled due to a “conflicting medical appointment” (ST1/66).
The Applicant submitted a medical certificate and test results dated 19 September 2019, which confirm he was diagnosed with a hernia condition, and an admission form showing that he attended hospital for this condition on 21 September 2019 (In Exhibit A1). The hospital admission form was referred to in the next file note, which recorded the Applicant attending the Provider on 23 September 2019 and again refusing to sign his Job Plan (ST1/66):
Simon attended the office quite agitated and presented an admission to hospital form from his doctor dated last week. RM Nm suggested that he please attend hospital as he seemed to be in considerable pain.
RM NM discussed the requirement to sign and [sic] Job Plan and asked him that he could discuss with either Centrelink or the Department of Human Services, which he refused as he believed the contract is between two people and not them and he does not. RM NM explained that I was unable to re-engage him today until he signed the job plan, again Simon refused and said he would be taking it to court.
Simon discussed he believed this was a conspiracy and that we deliberately starved people out to get them to go to work and that he felt everyone in the industry were bad and evil. Simon on occasion raised his voice however managed to bring him back down to calm state on several instances however upon talking again, he would then escalate.
Simon left as NM explained again that [to] be re-engaged he was required to sign job plan and he left making comments loudly as he left the building.
The Tribunal finds that these contemporaneous records are the most reliable account of the Applicant’s interactions and communications with the Provider. They clearly show that the Applicant refused to sign his Job Plan on 10, 12, 18 and 23 September 2019. There is no record of the Applicant attending the office of the Provider on 17 September 2019. Although he attended on 18 September 2019, the records show that he was refusing to sign the Job Plan at that time.
The Applicant was required to enter into a new Job Plan when requested to do so by his Provider pursuant to s 605(2) of the Act. Section 42AC of the Administration Act provides that a person commits a mutual obligation failure if they fail to comply with a requirement under s 605. As the Applicant refused to enter into the new Job Plan in breach of s 605(2), the Tribunal finds that the Applicant committed a mutual obligation failure.
With respect to whether the Applicant had a reasonable excuse for not entering into the Job Plan, his health issues did not prevent him from attending the office of the Provider on

10 September and 18 September. There is no medical evidence to support a conclusion that the Applicant could not have entered into his Job Plan between 10 September 2019 and 12 September 2019. Indeed, the medical certificate covers a later period from 19 September 2019.
The 12 September 2019 file note also refers to the Applicant’s belief that some of the wording on the plan “around suspending payments for not meeting mutual obligation requirements was against social security law as he gets 3 strikes before his payments were suspended” (ST1/67). This appears to be a reference to the following statement which appears in the second paragraph of the first page of each of the Job Plans signed by the Applicant prior to 22 October 2019, including Job Plans dated 12 July 2018 (ST1/12),

23 November 2018 (ST1/19), 27 February 2019 (ST1/24), 18 June 2019 (ST1/29):
I understand that if I don’t comply with my mutual obligation requirements, including those as set out in the items marked as compulsory below, the income support payments will be suspended. If I persistently failed to comply with my requirements, I understand my income support payments may be reduced or cancelled.
However, this statement is correct and is consistent with the relevant provisions of the Social Security legislation. Additionally, the records from the Provider show that staff of the Provider attempted to explain the statutory requirements to enter into a Job Plan to the Applicant but that he did not accept what he was being told. The Tribunal notes that the Job Plan that the Applicant eventually entered into on 22 October 2019 (ST1/34-36) does not contain the statement reproduced above at paragraph [31], so perhaps the Applicant’s request was accommodated in that Job Plan after all. Nevertheless, the Tribunal finds that the Applicant’s incorrect views about the provisions of the Social Security legislation were not a reasonable excuse for failing to sign his Job Plan, especially as staff of the Provider attempted to explain the requirements to him, which were also included in previous Job Plans signed by the Applicant.
The Applicant also submitted at the hearing that he had not signed his Job Plan when he attended the Provider because his “responsible officer” was not available, and that the officer he spoke to was not his responsible officer (transcript/30-32). There is no reference to this concern being raised by the Applicant on any of the occasions outlined above when he refused to sign his Job Plan. At the AAT2 hearing the Applicant stated (transcript/35):
It stipulates under the Social Security Act that I sign a mutual obligation with a responsible officer. Now you here is trying to tell me that I am signing a mutual obligation with APM [the Provider]. I am not signing a mutual obligation with APM. APM mean nothing to me.

The Tribunal does not accept that this was a reasonable excuse for the Applicant failing to sign his Job Plan between 10 September 2019 and 12 September 2019, particularly in light of the Applicant having previously entered into four Job Plans that were all signed under the name of the Provider (see paragraph [31] above).
The Tribunal has found that the Applicant committed a mutual obligation failure and that he did not have a reasonable excuse. This means that it was correct to suspend the Applicant’s payment, pursuant to 42AF(1) of the Administration Act.
Section 42AL of the Administration Act effectively provides that the suspension period begins at the start of the instalment period in which the person commits the mutual obligation failure and ends immediately before the person suspended meets the reconnection requirement. The Applicant refused to enter into the Job Plan on 10 September 2019, and so his payment was suspended from that date, meaning that the instalment period was correctly calculated to start on 11 September 2019.
DID THE APPLICANT FAIL TO MEET A RECONNECTION REQUIREMENT WITHIN THE FOUR-WEEK TIME LIMIT?
Section 42AM(2) of the Administration Act provides that if a person’s payments have been suspended, the Secretary must give the person notice of the reconnection requirement.
In the letter dated 13 September 2019 which advised the Applicant that his Newstart Allowance was suspended from 11 September 2019, the Applicant was advised of the reconnection requirement and the consequences of not meeting that requirement. Specifically (T4/33):
What you need to do
if you have not already done so, you need to call your Employment Services Provider as soon as possible on [phone number omitted] (call charges may apply) to:
· discuss the reasons you did not meet this requirement, and
· if required, receive more information on what you need to do to have your payment restarted.
If you do not do this
If you do not call your provider and meet the requirement they have given you, your payment may be cancelled. If this happens, you will need to make a new claim if you wish to receive a payment again.
At the AAT2 hearing the Applicant stated that he did not receive the 13 September 2019 letter until October (transcript/26-27).
However, on 13 September 2019, the Applicant was sent the following text message at 7.01am (ST2/77):
Your payment has been suspended for not agreeing to your Job Plan. To restore payment you need to agree to your Job Plan. You can agree to your Job Plan on-line or contact [phone number omitted].
The Applicant also filed a copy of this text message in the Tribunal (contained in Exhibit A1), and acknowledged at the hearing that he received and understood it as the following exchange indicates (transcript/26):
MR BURGESS:         Yes. So, on Friday the 13th, at 7.01, you were aware that your payment had been suspended because you hadn’t agreed to the job plan? It’s not a trick question?
APPLICANT:              Yes.
MR BURGESS:         Yes? And you were aware that to restore your payment you needed to agree to the job plan, didn’t you?
APPLICANT:              Yes.
On 14 September 2019, the Applicant was sent another text message at 12.10pm (ST3/78). This message stated:
Your payment is still suspended. To restore your payment you will need to re-en-gage. To discuss, contact your provider on [phone number omitted].
A copy of this text message was also filed by the Applicant in Exhibit A1. At the AAT2 hearing the Applicant acknowledged that he had received this message (transcript/27-28).
Additionally, as noted above at paragraph [27], it was explained to the Applicant when he attended the office of the Provider on 23 September 2019 that the Provider “was unable to re-engage him today until he signed the job plan”, but the Applicant refused to do so.
In summary, even if the Tribunal accepts that the Applicant did not receive the

13 September 2019 letter until October (and there is no evidence to suggest that was the case), he was nevertheless given adequate notice of the reconnection requirement and the effect of not complying with the requirement, in the text messages on 13 and 14 September 2019, and at the office of the Provider on 23 September 2019.
The Applicant was required to comply with the reconnection requirement four weeks from 11 September 2019, being 11 October 2019. As the Applicant did not sign a Job Plan until 22 October 2019 (ST1/35), he did not meet this reconnection requirement. Consequently, his payment was correctly cancelled on 11 October 2019 under s 42AM(3) of the Administration Act.
CONCLUSION
In summary, the Tribunal has found that:
(a)the Applicant committed a mutual obligation failure by refusing to sign his Job Plan on 10 September 2019 without a reasonable excuse and therefore his Newstart Allowance was correctly suspended from 11 September 2019; and
(b)the Applicant did not meet the reconnection requirement within the four-week time limit (by 11 October 2019) and therefore his Newstart Allowance was correctly cancelled on 11 October 2019.
Fortunately for the Applicant, after signing his Job Plan on 22 October 2019, the Applicant was able to receive the Newstart Allowance payment again (transcript/10).
DECISION
The correct and preferable decision is that the Reviewable Decision, being the decision of the Authorised Review Officer as affirmed by the AAT1 on 29 November 2019, is affirmed.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.....[Sgd].................................................................
Associate
Dated: 18 November 2020

Date of hearing: 23 September 2020

Applicant: Self-represented

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 4665

18 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Standing

Date of hearing:	23 September 2020
Applicant:	Self-represented
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers