Hamilton and Department of Family and Community Services - [2002] AATA 682

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 682

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/5

GENERAL ADMINISTRATIVE DIVISION       )
           Re      IAN ROBERT HAMILTON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date26 July 2002
PlaceAdelaide

Decision       For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – whether applicant failed to take reasonable steps to satisfy activity test – Jobseeker Diary – whether an activity test breach rate reduction period was properly applied
Social Security Act 1991 sections 593, 601, 624, 644AA, 644AB, 644AE, 771HA

ORAL REASONS FOR DECISION

26 July 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 30 November 2001, which affirmed the decision of an Authorised Review Officer of 25 October 2001, which in turn affirmed a decision to impose an activity test breach and penalty in relation to the applicant's Newstart Allowance, a rate reduction of 18% for 26 weeks from 15 June 2001 to 13 December 2001.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the respondent (the Department). The applicant appeared on his own behalf and gave oral evidence. Ms Odgers represented the Department.
The applicant is 55 years of age, and is a member of a couple. His wife was in employment when he applied for Newstart Allowance, which was granted with effect from 16 April 2001. He was issued with a Jobseeker Diary, which was to be filled out from 20 April 2001, the date of his first payment. A Departmental letter dated 20 April 2001 to the applicant reads, in part, as follows:
"…
You will be paid Newstart Allowance from 16 April 2001.
…
You were recently issued with a Jobseeker Diary.
You need to start filling it out as soon as your payments commence.
You should approach at least 10 employers each fortnight and record these in your Jobseeker Diary.
…"
Section 593 of the Social Security Act 1991 (the Act) contains the qualifications for Newstart Allowance. There is a requirement set out at paragraph (1)(b) that throughout the period, or for each period within the period, the person satisfy the activity test.
Section 601 of the Act, as far as is relevant for the purposes of this review, provides:
"601 (1A)The Secretary may notify a person (other than a person who is not required to satisfy the activity test) who is receiving a newstart allowance that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period specified in the notice.
601 (1B)If a person refuses or fails to comply with a notice issued under subsection (1A), the person fails to satisfy the activity test in respect of the period specified in the notice."
Section 624 of the Act provides:
"(1)Subject to subsection (2), if a person fails to satisfy the activity test (the failure), a newstart allowance is not payable to the person.
(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.
(2)A person is not subject to the activity test penalty period under subsection (1) at any time during which the person:
(a) is undertaking:
(i)formal vocational training in a labour market program approved by the Employment Secretary; or
(ia)an activity approved by the Employment Secretary under the CSP; or
(ii)a rehabilitation program approved by the Employment Secretary; and
(b)has been exempted from the application of that subsection by the Secretary.
Note: For "Employment Secretary" see section 23."
Section 644AA of the Act provides that the rate reduction period is 26 weeks, and section 644AE of the Act provides that the rate reduction amount is 18%. Section 644AB of the Act, as far as is relevant, provides:
"(1)subject to section 644AC, if an activity test breach rate reduction period applies to a person under this Part, the Secretary must give to the person a written notice informing the person of the commencement of the activity test breach rate reduction period applicable to the person.
(2)Subject to section 644AC, the activity test breach rate reduction period commences on the day on which the notice is given to the person.
(3)If, at the time of the commencement of an activity test breach rate reduction period under this Part, the person is already subject to an activity test breach rate reduction period (the pre-existing reduction period), the pre-existing reduction period is taken to end immediately before the commencement of the activity test breach rate reduction period under this Part.
(4)Subject to section 644AC, if, on or before the day on which the period referred to in subsection (1) would (apart from this subsection) have commenced, newstart allowance ceases to be payable to the person, the period commences on the day on which newstart allowance ceases to be payable to the person.
Note:For activity test breach rate reduction period see subsection 23(1)."
Section 771HA(3A) of the Act provides:
"If an activity test breach rate reduction period applies to a person Subdivision B of Division 5 of Part 2.11, Subdivision B of Division 5 of Part 2.11A or Subdivision AA of Division 4 of Part 2.12, the person is not qualified for partner allowance throughout the period."
The applicant returned the Jobseeker Diary on 15 June 2001, with only 17 of the required 50 contacts recorded. Six of these were not job contacts, but registrations with job network members. The delegate considered that the applicant had not satisfied the requirements; he had no reasonable excuse for failure to comply with the requirements imposed by the Diary; and that an activity test breach and penalty of Newstart Allowance rate reduction was applicable. This was the applicant's first breach, and an 18% rate reduction was imposed for 26 weeks from 15 June 2001 to 13 December 2001. On 28 July 2001, the applicant's Newstart Allowance was cancelled, as payment had been precluded for 3 months due to the applicant's wife's earnings. His wife retired from work at the age of 60, at the end of July 2001, and lodged a claim for Age Pension, which was granted. The applicant applied for Partner Allowance, which was granted in August 2001, but later cancelled, as the delegate determined that, in accordance with section 771HA(3A) of the Act, during the period that he was subject to an activity test breach rate reduction, he was not qualified for Partner Allowance.
The applicant received Newstart Allowance for a few days again from 6 October 2001 until his decision to withdraw. He has been in receipt of Partner Allowance since 13 December 2001.
The applicant said in evidence that he believes that in view of the fact that he received no job assistance or training offer, and little monetary payment while on Newstart Allowance, it is unfair that he should have been penalised for the breach of a regulation, and thus deprived of Partner Allowance for the period. He is very disillusioned by his dealings with Centrelink, and feels that he had been "conned".
The applicant argues that as he has always been in the workforce, he did not understand the Social Security system; that after looking for work for 8 months he went to Centrelink to help him get work, and in effect he was "conned" into applying for Newstart Allowance, because Centrelink said they could not help him unless he was a "customer". He received only 2 payments (as payments ceased because of his wife's income), and the Department did nothing to help him get a job. They told him he had to go to a job provider, and he maintains that he should not have been required to fill in the Jobseeker Diary because he was not in receipt of any money, he was not a recipient of Newstart Allowance, and should not have been penalised. He maintains also, that in accordance with section 644AB(4) of the Act, Newstart Allowance ceased to be payable to him on 4 May 2001 because of the level of his wife's income, and the date of commencement of the breach should be 4 May 200l, therefore, and not 15 June 2001.
The applicant submits, finally, that for the 2 payments he received, he would have been better off if he had never applied for Newstart Allowance, and had applied for Partner Allowance when his wife turned 60 in July 2001. He then would not have been subject to an activity test breach.
The Department argues that the applicant failed to apply for a particular number of advertised job vacancies specified in a notice, thereby failing to satisfy the activity test, and the imposition of the 18% rate reduction for 26 weeks from 15 June 2001 to 13 December 2001 was in accordance with legislative requirements. Section 771HA(3A) of the Act also applies as it states that if an activity test beach rate reduction period applies, the applicant was not qualified for Partner Allowance throughout the rate reduction period.
The applicant outlined in his evidence his view of the circumstances surrounding this matter. It is clear that he feels aggrieved and angry, and that he considers that Centrelink has failed him. It became very obvious in the course of his evidence that he neither read carefully the correspondence the Department forwarded to him, nor understood the obligations he undertook when he applied for Newstart Allowance, and when the allowance was granted. Subsequent to his wife's earnings precluding him from benefit in early May 2001, he continued to be qualified for Newstart Allowance, to receive correspondence from the Department covering the conditions for preparing his work agreement, such as, enrolling with a job network member. He seems to have failed to take these requirements as seriously as he should. In any event, although much of his evidence and complaints covered these peripheral areas, the central issue in this application is his breach of the activity test by his unsatisfactory work efforts as recorded in the Jobseeker Diary.
In my view, the applicant has not provided any satisfactory explanation of his failure to complete the Jobseeker Diary in accordance with the Department's instructions whilst he was a Newstart Allowance recipient. I am satisfied on the evidence, that he failed to satisfy the activity test, as he did not take reasonable steps to comply with the requirements of the Jobseeker Diary during the period specified. I do not accept his submission that the commencement of the breach should be 4 May 2001, when his wife's income precluded payment. He continued to be qualified for Newstart Allowance. The applicant lodged the Jobseeker Diary on 15 June 2001, and the delegate made the original decision on that date. I consider that the rate of reduction was properly imposed from 15 June 2001 to 13 December 2001.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  26 July 2002
Date of Decision  26 July 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms Odgers
Solicitor for the Respondent    Admin Law Team