Harding and Secretary, Department of Employment and Workplace Relations (Social services second review)

[2023] AATA 1984

Harding and Secretary, Department of Employment and Workplace Relations (Social services second review) [2023] AATA 1984 (7 July 2023)

Division:GENERAL DIVISION

File Number(s):      2022/3374

Re:Stephanie Harding

APPLICANT

AndSecretary, Department of Employment and Workplace Relations

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:7 July 2023

Place:Adelaide

The Tribunal:

·     Affirms the decision to set aside decisions made on 20 January 2021 to suspend and cancel Ms Harding’s jobseeker payment and substitute with a decision that Ms Harding continued to be qualified for jobseeker payment.

·     Affirms the decision to set aside the decision to grant jobseeker payment from 16 February 2021 and substitute with a decision that her application was taken not to be made.

·     Sets aside the decision made on 28 April 2021 to suspend and cancel Ms Harding’s jobseeker payment and substitutes with a decision that Ms Harding continued to be qualified for jobseeker payment.  The date of effect of this decision is 3 February 2022.

...............[sgnd].........................................................

Senior Member K Millar

Catchwords

SOCIAL SECURITY - Jobseeker payment – application to dismiss – considerations – application to dismiss refused cancellation of jobseeker payment – compliance failure – mutual obligation requirement – applicant complied with reconnection requirement - date of effect of the decisions - decisions under review are set aside.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act1999 (Cth)

Cases

General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69

VYZB v Child Support Registrar [2022] AATA 4069

Williams v Australian Electoral Commission and the Greens [1995] AATA 160

Secondary Materials

Social Security (Administration) (Secretary of the Department of Education, Skills and Employment) Delegation (No.1) 2020

Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022

REASONS FOR DECISION

Senior Member K Millar

7 July 2023

INTRODUCTION

1. Ms Harding’s jobseeker payment has been cancelled, granted again and cancelled for a second time by the Secretary.

2. In summary, this was because Ms Harding believes her Jobseeker Employment Pathway Plan, a mutual obligation requirement, should have been provided through Digital Services (“DS”) and not through Jobs Statewide. As Ms Harding wanted her provider to be DS, and believed the Secretary was required to allow her to have the plan through DS, she objected to signing a plan with Jobs Statewide.

3. Her objection was considered to be a failure to comply with the obligations she had to meet for jobseeker payment (a “mutual obligation failure”), and Centrelink wrote to her requiring her to contact Job Statewide (“the reconnection requirement”) on each occasion. 

4. A person who commits a mutual obligation failure has their payment suspended, and if they do not comply with the reconnection requirement within four weeks their payment is cancelled. 

5. This review is of three decisions. The first decision is the suspension of Ms Harding’s jobseeker payment on 20 January 2021 and the cancellation of this payment on 16 February 2021 (“the first decision”). This decision was affirmed by an authorised review officer (“ARO”) on 14 February 2022.  On first review by this Tribunal, this decision was set aside and substituted with a decision that Ms Harding continued to be qualified for jobseeker payment. The Secretary concedes this decision is correct, although for different reasons for those provided at first review.

6. The second decision resulted from Ms Harding lodging a new claim for jobseeker payment on 16 February 2021, after the cancellation of her payment by Centrelink. Her claim was initially granted from 16 January 2021, but on 14 February 2022 was varied by the ARO who found that her claim for jobseeker payment should be granted from the later date of 16 February 2021. On first review, this decision was set aside as it was taken not to have been made because Ms Harding continued to be qualified for jobseeker payment. The Secretary concedes this is correct. 

7. The third decision was to again suspend Ms Harding’s jobseeker payment from 3 April 2021 and cancel this payment on 28 April 2021. This decision was affirmed by an ARO on 13 July 2021 and was affirmed on first review by the Tribunal. The Secretary concedes that this decision should be set aside but submits the date of effect of this decision should be the date Ms Harding applied for review. It is submitted that as she was again receiving jobseeker payment by this date, a decision in her favour does not result in any back payment of jobseeker payment. The Secretary submits Ms Harding applied for review of this decision on 3 February 2022. Ms Harding disputes this date. 

   APPLICATION TO DISMISS

8. After her payment was cancelled in the third decision, and before she applied for a review of this decision, Ms Harding lodged a new claim for jobseeker payment. This claim was granted, and the jobseeker payment was again payable from 21 August 2021.    

9. The Secretary submitted that the earliest date of effect of a decision to set aside the third decision to cancel her jobseeker payment is the date she lodged her application for review.  The Secretary contends Ms Harding lodged her application for review on 3 February 2022.  As she was already again receiving jobseeker payment by this date, and had been since 21 August 2021, the Secretary sought dismissal of the matter because a favourable outcome would not result in the payment of a Centrelink payment. 

10. The Secretary sought the dismissal of this matter under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), on the basis that the application is frivolous, in the sense that it would not serve any practical benefit to Ms Harding.

11. Section 42B of the AAT Act allows the Tribunal to dismiss an application for review of a decision at any stage if the Tribunal is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance, or has no reasonable prospect of success or is otherwise an abuse of process of the Tribunal.

12. Subsection 43(6) of the AAT Act provides that a decision that is varied by the Tribunal comes into effect on and from the day the decision under review had effect. This section is modified by s 147 of the Social Security (Administration) Act1999 (Cth) (“the Administration Act”) so that:

    ·The date of effect of an AAT1 decision is the day the person applies for a review by AAT1 if;

    othe person is given written notice of the decision; and

    othe person applies for review by AAT1 more than 13 weeks after the notice was given. 

13. While s 147 of the Administration Act has an exception for an employment pathway plan, this section was amended by the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022 (Cth) (“the Amending Act”). The Amending Act does not apply to the precursor Jobseeker Employment Pathway Plan.

14. The first and second decisions are not affected by s 147 of the Administration Act because they were reviewed by an ARO after Ms Harding lodged her application for first review.   

15. The Secretary submits that the third decision was reviewed by an ARO on 13 July 2021, that Ms Harding was provided written notice of the decision, and that she did not apply to AAT1 for a review of the decision within 13 weeks. As the earliest date of effect of a favourable decision is the date of application for review at AAT1, and Ms Harding was again receiving jobseeker payment by the time she applied for review, the Secretary submitted the application is frivolous and should be dismissed. 

16. The Secretary states Ms Harding lodged her application for first review on 3 February 2022. Ms Harding claims she lodged her application for first review on 9 December 2021. Little turns on the date for the present purposes as either date is more than 13 weeks after the date the Secretary states the ARO decision was made.

17. The Secretary submitted that as Ms Harding did not apply for first review until after she was again receiving jobseeker payment, a decision is of no utility, and is therefore frivolous, because the date of effect provisions mean that she will not be back paid jobseeker payment if her application is successful.

18. I do not agree. While for some people, the decision would be of no utility unless it resulted in the payment of a social security pension or benefit, for others this is not the sole purpose of applying for a review. 

19. In Williams and Australian Electoral Commission and the Greens (“Williams”),[1] the Tribunal was constituted by three Judges of the Federal Court. In this decision the Tribunal, citing General Steel Industries Inc. v Commissioner for Railways (NSW),[2] commenced its consideration of s 42B of the AAT Act with the observation that power for peremptory dismissal should be exercised cautiously and sparingly, and that the mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause.

    [1] [1995] AATA 160.

    [2] [1964] HCA 69.

20. In Williams, the applicant was found to fall within the provisions of s 42B of the AAT Act because of the futility of the proceedings, in that they made no difference to the current situation, and because they were being pursued for a collateral process, to change the electoral system of the Greens, which was also futile. It was found that while the proceedings were not instituted vexatiously, they had become vexatious.  The applicant was found to genuinely believe the proceedings could provide a legitimate means to challenge membership changes in the Greens. This was considered a fact that could well have been decisive in his favour, as “an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings is ordinarily entitled to ‘a day in court’”.[3]   It was not ultimately decisive in his favour because as a matter of law, no legitimate purpose could be achieved.  

    [3] Williams and Australian Electoral Commission and the Greens [1995] AATA 160 at [37].

21. That an applicant may not be successful in obtaining a payment, but nevertheless seeks to pursue the proceedings is not a reason of itself to consider that the matter is frivolous. If this were the case, important issues on the interpretation of social security law may never be the subject of consideration by the Tribunal, or amendable to an appeal to the Federal Court.  

22. In the Secretary concedes, that Ms Harding’s jobseeker payment was incorrectly cancelled.  As a matter of fact and law, Ms Harding can succeed in her application.  

23. The Secretary’s application for dismissal rested on the matter being frivolous because it could not result in the payment of money to Ms Harding. Ms Harding indicated she wanted to proceed regardless of whether it resulted in a payment to her, and also contested that she had failed to apply within 13 weeks of a notice of the decision.

24. The Tribunal declined to dismiss the application.

    THE FIRST AND SECOND DECISION

25. The first and second decisions resulted from a finding by a delegate of the Secretary that Ms Harding did not sign a Jobseeker Employment Pathway Plan when requested by an employee of Jobs Statewide. 

26. To remain qualified for jobseeker payment, a person must meet the requirements set out in s 593 of the Act as it was at the time.[4] Where a person is required to satisfy an activity test, this includes that at all times (if any), when a Jobseeker Employment Pathway Plan is not in force, the person is willing to enter into such a plan,[5] and where a Jobseeker Employment Pathway Plan is in force in relation to the person, the person is willing to enter into another such plan instead of the existing plan.[6]

    [4] The Act was amended by the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022 (the Amending Act). Schedule 1 Subclause 152(6) of the Amending Act states that the amendments apply to determine if a person is qualified for jobseeker payment in respect of days occurring after the commencement. Schedule 1 commenced on 8 April 2022.

    [5] S 593(1)(c) of the Act

    [6] S 593(1)(d) of the Act. 

27. Under s 42AC(1)(b) of the Administration Act, as it was at the time Ms Harding’s payment was cancelled,[7] a person commits a mutual obligation failure if the person fails to comply with a requirement under s 605 of the Act to enter a Jobseeker Employment Pathway Plan. Under s 605(1) and (2) of the Act, these requirements include entering a Jobseeker Pathway Plan or if one is in force, entering another plan.

    [7] The Amending Act at cl. 158 states that a mutual obligation failure that occurred under s 42AC(1)(b) before the commencement of the Amending Act is taken to continue to be a mutual obligation failure after the commencement of the Amending Act

28. Employees of Jobs Statewide can require a person to enter a Jobseeker Employment Pathway Plan, or enter another plan if one exists, under s 605 of the Act.  This power was delegated to the employees by the Social Security (Administration) (Secretary of the Department of Education, Skills and Employment) Delegation (No.1) 2020.

29. In failing to enter a new plan when this was requested, Ms Harding committed a mutual obligation failure. A person who commits a mutual obligation failure must have a reconnection requirement imposed.[8] If the person does not comply with the reconnection requirement within four weeks, the person’s payment is cancelled.[9]

    [8] S 42AM of the Administration Act.

    [9] S 42AM(4) of the Administration Act.

30. On 21 January 2021, Ms Harding was advised her payment had been suspended and that she was required to call her employment services provider as soon as possible. A notice advising her of the cancellation of her payment was issued on 16 February 2021, less than the required four weeks after the notice suspending her payment had been issued. As it was less than four weeks, this cancellation decision was not made in accordance with s42AM(4) of the Administration Act. In addition, she did comply with the reconnection requirement by contacting her employment services provider on 22 January 2021. It follows the power to cancel her payment under s 42AM(4) of the Administration Act did not arise.

31. Ms Harding’s payment should only have been suspended in the period which ended on 21 January 2021, immediately before the day on which she contacted her job services provider.[10] It follows that under s 42AL(4) of the Administration Act, Ms Harding should have received back pay for some of the period in which her payment was suspended. It is unclear from the information before the Tribunal if this has occurred.

    [10] S 42AL(3) of the Administration Act.

32. The Secretary concedes Ms Harding complied with the reconnection requirements, and that her payment should not have been cancelled.   

33. The decision of AAT1 to set aside the first decision should be affirmed. The second decision, to grant jobseeker payment from 16 February 2021, was taken by AAT1 to have not been made and this is also affirmed. However, the Secretary should consider if a back payment should have been made for some of the period of suspension of Ms Harding’s payment as this period ended the day immediately before she contacted her job services provider. 

    THE THIRD DECISION

34. The third decision is the decision to cancel Ms Harding’s jobseeker payment from 28 April 2021. 

35. On 26 March 2021, Ms Harding was required to enter another Jobseeker Pathway Plan. She declined to do so as she considered she should be with DS and not with Jobs Statewide. On 6 April 2021, Ms Harding was sent a letter from Centrelink, stating her payment had been stopped from 3 April 2021, and that she was required to call her employment services provider as soon as possible. The requirement to call her employment services provider was the reconnection requirement. 

36. The Secretary accepts Ms Harding complied with the requirement as she contacted Jobs Statewide, her employment services provider, on 22 and 23 April 2021 and attended an appointment with Jobs Statewide on 23 April 2021. 

37. As she had met the reconnection requirement, the power to cancel her jobseeker payment under s 42AM(4) of the Administration Act does not arise. The period of suspension should have ended under s 42AL(3) of the Administration Act and backpay should be provided under s42AL(4) of the Administration Act.

38. It follows that the decision to cancel Ms Harding’s jobseeker payment from 28 April 2021 must be set aside.

    DATE OF EFFECT

39. As explained above, s 147 of the Administration Act modifies the operation of the AAT Act so that if the person applies for first review more than 13 weeks after being given written notice of the ARO decision, the date of effect of a favourable decision is the date the person applies for review.

40. The first decision to “not pay” Ms Harding from 9 January 2021, was affirmed by an ARO on 14 February 2022. This formulation of the decision encompasses the decision to suspend her payment under s 42AL of the Administration Act from 9 January 2021, as well as the decision to cancel her jobseeker payment on 20 January 2021. Ms Harding has applied for review within 13 weeks. The date of effect of the first and second decisions is governed by s 42 of the AAT Act and is the day on which those decisions had effect.

41. As the decision not to pay includes the suspension of Ms Harding’s jobseeker payment, it may be that some arrears are due to her from the time her payment should have been reinstated to the date it was again suspended (albeit incorrectly). 

42. The second decision to grant the jobseeker payment from 16 February 2021,[11] was affirmed by an ARO on 14 February 2022. As the first decision has been set aside, this decision is taken not to have been made.   

    [11] The second decision.

43. The third decision was affirmed by an ARO on 13 July 2021. 

44. Ms Harding claimed there was an error in the appeal number which resulted in the first and second decisions being reviewed on 13 July 2021, and that the third decision has not been reviewed by an authorised review officer. 

45. The decision identified by the authorised review officer in the body of the decision dated 13 July 2021 is the “decision made on 28 April 2021 to cancel your JobSeeker Payment”.[12]  This is the third decision, and the Tribunal finds Ms Harding was notified of this decision in the letter dated 13 July 2021.        

    [12] T3, 43.

46. Ms Harding says she applied for a first review on 9 December 2021. She says she called the Tribunal, her details were taken and she was told it would be a while before she would receive a reply due to the Christmas and New Year period. Ms Harding said she waited but did not hear anything about her application, so she rang again and on the second occasion her application was taken. The first and second decisions had not been reviewed in December 2021, and the only decision capable of review at this time was the third decision. 

47. Ms Harding says she lodged an application for review on 9 December 2021 and the Secretary submits she applied on 3 February 2022.  Both are more than 13 weeks after Ms Harding is taken to have received the decision of the authorised review officer.[13] Both are also after the date she was again granted, and was again receiving, jobseeker payment.

    [13] As Ms Harding was notified by post, the correct dates for calculating when she is taken to have received notification is set out in VYZB v Child Support Registrar [2022] AATA 4069.

48. The Tribunal considers the letters acknowledging her application show a date of lodgement of 3 February 2022 and finds this was the date she applied for review. The date of effect of the third decision is 3 February 2022.

    DECISION

1. The Tribunal:

   ·     Affirms the decision to set aside the decisions made on 20 January 2021 to suspend and cancel Ms Harding’s jobseeker payment and substitute with a decision that Ms Harding continued to be qualified for jobseeker payment.

   ·     Affirms the decision to set aside the decision to grant jobseeker payment from 16 February 2021 and substitutes with a decision that this application was taken not to have been made.

   ·     Sets aside the decision made on 28 April 2021 to suspend and cancel Ms Harding’s jobseeker payment and substitutes with a decision that Ms Harding continued to be qualified for jobseeker payment. The date of effect of this decision is 3 February 2022.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

.................[sgnd].........................

Associate 

Dated:   7 July 2023 

Date of hearing:	24 May 2023
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Mr Alex Chan Sparke Helmore Lawyers