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

[2008] AATA 1007

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1007

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3004

GENERAL ADMINISTRATIVE DIVISION		)
Re		TROY HARDWICK

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date7 November 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............Signed...................

Deputy President

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – Newstart participation failures – eight week non-payment period enforced – applicant failed to comply with a notice given under subsection 64(2) of the Social Security Administration Act 1999 – applicant did not have a reasonable excuse – decision under review affirmed

Social Security Act 1991 (Cth) – ss 605, 624(1), 624(2) 629(1)

Social Security Administration Act 1999 (Cth) – s 64(2)

REASONS FOR DECISION

7 November 2008   Deputy President P E Hack SC    

Introduction

1.In late 2007 the applicant, Mr Troy Hardwick, was receiving Newstart Allowance. On 14 December 2007 Centrelink, having concluded that Mr Hardwick had committed “Newstart participation failures” on 1 October 2007, 5 November 2007 and 26 November 2007, determined that Newstart Allowance was not payable to him for a period of eight weeks.

2.That decision was affirmed on internal review and by the Social Security Appeals Tribunal on 12 June 2008. Mr Hardwick seeks a review by this Tribunal of the decision.

Legislation

3.By virtue of s 629(1) of the Social Security Act 1991 (Cth) (the Act) Newstart Allowance is not payable to a person for a period of eight weeks if the person, amongst other things:

“(a) commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure”.

4.Section 624(1) of the Act specifies a variety of circumstances in which a person commits a Newstart participation failure. In the circumstances of the present case it is necessary to refer to only two examples, those in paragraphs (a) and (d). They provide:

“(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 [Social Security (Administration) Act 1999]; 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

…

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

5.The strict effect of s 624(1) of the Act is ameliorated by s 624(2) which provides that a failure of the kind referred to in s 624(1) is not a Newstart participation failure if the person satisfies the Secretary that the person had a “reasonable excuse” for the failure. The Secretary is required to determine, by legislative instrument, matters that must be taken into account in deciding whether the person had a reasonable excuse for committing a Newstart participation failure.

6.Because Mr Hardwick was, at all material times, receiving Newstart Allowance, s 64 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) applied to him[1]. Thus, by virtue of s 64(2) of the Administration Act where the Secretary, relevantly, was of the opinion that Mr Hardwick should attend a particular place for a particular purpose the Secretary was empowered to notify Mr Hardwick that he was required, within a specified time, to attend that place for that purpose. Notification could be given by sending the notice by prepaid post at the postal address last known to the Secretary.

[1] See s 64(1)(a), Administration Act.

7.Section 605(1) of the Act allows the Secretary to require a person who is receiving, or who has made a claim for, Newstart Allowance to enter into a Newstart Activity Agreement. Such an agreement is, according to s 605(4) of the Act, a written agreement, in a form approved by the Secretary, between the person and the Secretary.

Factual background

8.On 16 July 2007 Mr Hardwick executed a document described as an Activity Agreement. It is said to be “an Activity Agreement under the Social Security Act 1991” and to have been “developed” between Mr Hardwick and an entity described as “CRS Australia”. On the second page of the document Mr Hardwick is shown as confirming that he:

“must do the activities stated in Part A of this Activity Agreement or [his] Centrelink payment may be stopped.”

The activities in Part A are described thus:

“·        Attend fortnightly Vocational Rehabilitation Service      Appointments with CRS Australia

·        Participate in Vocational Rehabilitation Services with CRS     Australia from 16/07/2007.”

The document has been executed on behalf of CRS Australia by a Mr Gawecki who is described in later correspondence as a “Rehabilitation Consultant”.

9.CRS Australia (which was, at one time, called the Commonwealth Rehabilitation Service) is part of the executive branch of the government of the Commonwealth. So far as I can tell it does not owe its existence to any legislation but is an agency coming within the portfolio of the Minister for Human Services.

10.Having executed the Activity Agreement it appears that Mr Hardwick commenced to attend a “Job Intensive Group”. By letter dated 20 August 2007 Mr Hardwick was informed that that Group had been going through some changes with the result that it was to operate in the future “every Monday from 11-1pm – and will continue until you obtain a job”. There is no letterhead on the copy of the letter available to me however I infer from the document that it was sent by CRS Australia. The letter contained a warning that:

“a failure to attend these appointments may also result in a participation failure recorded against you”.

11.Mr Hardwick did not attend the Job Intensive Group on Monday 1 October 2007. He accepts that he had no reasonable excuse for his failure to attend.

12.On 31 October 2007 Mr Hardwick was sent a letter on the letterhead of an entity described as “Vocational Rehabilitation Services” said to be “an Australian Government Initiative”. That letter required him to attend the premises of CRS Australia at 9am on 5 November 2007. It contained a warning in the terms set out in paragraph [10] above.

13.Mr Hardwick did not attend this appointment. He accepts that he had no reasonable excuse for this failure.

14.A similar notice dated 19 November 2007 was sent (or given) to Mr Hardwick requiring him to attend the premises of CRS Australia at 12.30pm on 26 November 2007. It too contained the warning set out in paragraph [10] above.

15.Mr Hardwick did not attend this appointment. However, he says of this failure that he had a reasonable excuse because he was attending a job interview at the time and was unable to get to the appointment. I consider this aspect of the matter in paragraphs [35] to [37] below.

16.Centrelink took the view that as a result of Mr Hardwick’s failures to attend the appointments on 1 October 2007, 5 November 2007 and 26 November 2007 he committed a Newstart participation failure on each of those occasions. As it was determined that Mr Hardwick had committed the third of these participation failures having committed participation failures on two previous occasions in the preceding 12 months, Newstart Allowance was not payable to him for a period of eight weeks by virtue of s 629 of the Act.

17.Centrelink’s decision was affirmed by the Social Security Appeals Tribunal on 12 June 2008. That Tribunal identified the decision as being one to apply an eight week non-payment period to Mr Hardwick. It is of no particular consequence but I rather think the operative decision is that Mr Hardwick had committed three participation failures within 12 months. Once it had been decided that that had occurred the statute operated of its own force because Newstart was “not payable”.

The parties’ cases

18.Mr Hardwick, who appeared for himself, contended that he did have a reasonable excuse for not attending the appointment on 26 November 2007. He did not otherwise put in issue the Secretary’s case. Nonetheless, and because he was unrepresented, I need to be satisfied that the other elements that operate to work a suspension of Newstart Allowance are made out.

19.The case for the Secretary, as articulated in her Statement of Facts and Contentions, was that Mr Hardwick had committed three Newstart participation failures by failing to comply with the terms of the Newstart Activity Agreement, that is, the failure identified in s 624(1)(d) of the Act. During the course of the hearing Ms Knight, the solicitor who appeared for the Secretary, and who, if I may say so, did so very ably, articulated an alternative case that the failures were failures to comply with a requirement notified under s 64(2) of the Administration Act, that is, the failure in s 624(1)(a) of the Act.

The issues

20.Having regard to the arguments of the parties the issues that fall to be decided are these:

(a) did Mr Hardwick’s failures to attend the three appointments answer the description in s 624(1)(d) of the Act?

(b)    did Mr Hardwick’s admitted failures answer the description in s 624(1)(a) of the Act?

(c)    if either question is answered in the affirmative, did Mr Hardwick have a reasonable excuse for the 26 November 2007 failure[2]?

[2]        Mr Hardwick accepted that he had no reasonable excuse for the other two failures.

Section 624(1)(d)

21.The first issue that arises is whether the agreement of 16 July 2007 was a Newstart Activity Agreement between Mr Hardwick and the Secretary. On its face it was not, and because it had not been raised as an issue by Mr Hardwick I gave leave to Ms Knight to lodge supplementary submissions in relation to the issue. That additional material demonstrates the following:

(a)by virtue of s 234(1) of the Administration Act the Secretary, subject to an irrelevant exception, may delegate “to an officer all or any of the powers of the Secretary under the social security law”;

(b)subsection 234(7) defines “officer” as including a person engaged by “another authority of the Commonwealth” or by: “an organisation that performs services for the Commonwealth”;

(c)by an instrument of delegation executed on 26 June 2007 (and in force as at 16 July 2007) the then Secretary, Dr Peter Boxall,

delegated to “each person engaged by an Employment Service Provider to perform functions or to provide services under a relevant arrangement” the powers specified in the Schedule to the instrument;

(d)section 605 of the Act and s 64 (2) of the Administration Act are amongst the provisions specified in the schedule;

(e)the term “Employment Service Provider” is defined in the instrument as meaning “an organisation that performs functions or provides services for the purpose of the social security law under one or more of the following arrangements … Memorandum of Understanding between Department of Employment and Workplace Relations and Department of Human Services as represented by CRS Australia 2007-2009”.  

22.From these matters and from the document itself I am satisfied that the agreement of 16 July 2007 was executed by a person engaged by CRS Australia and that CRS Australia was an Employment Service Provider as that term is used in the instrument of delegation. Thus I am satisfied that despite outward appearances the Activity Agreement of 16 July 2007 was one that answered the statutory description in s 605 of the Act.

23.The next question is whether Mr Hardwick’s failures amounted to failures to comply with a term of a Newstart Activity Agreement. The term which the Secretary says was not complied with was that which required Mr Hardwick to undertake the activities in Part A. It is said that Mr Hardwick’s failures to attend the appointments on 1 October 2007, 5 November 2007 and 26 November 2007 breached his obligation:

·to attend fortnightly Vocational Rehabilitation Services appointments with CRS Australia;

·to participate in Vocational Rehabilitation Services with CRS Australia from 16 July 2007.

24.I do not accept that argument.

25.It is not apparent to me that the requirement to attend a Job Intensive Group on 1 October 2007 is a requirement to attend Vocational Rehabilitation Service appointments. There is certainly no reference in the letter of 20 August 2007 to the form of words used in the Activity Agreement. But that point need not be resolved as Mr Hardwick is not shown to have breached the requirement to attend fortnightly, which was the obligation specified in the first specification of the Activity Agreement, by not attending on 1 October 2007.

26.The second specification in the Activity Agreement adds nothing to the first since it contains no quantative element. The obligation was not to attend, for example, as directed or at a particular frequency, but merely to attend, without any further degree of particularity having been specified. Given the potentially dire consequences of failure to comply with the requirements of an Activity Agreement, the activities ought be spelled out with precision so that there can be no scope for confusion or uncertainty about the requirements.

27.The letters of 31 October 2007 and 19 November 2007 each required Mr Hardwick to attend a “VRS Contact appointment … with CRS Australia”. I am prepared to assume that VRS is an acronym for Vocational Rehabilitation Services. There was thus a requirement to undertake an activity that answered the description of the activity specified in the Activity Agreement; however, the requirement exceeded the frequency required by the Activity Agreement by requiring Mr Hardwick to attend weekly rather than fortnightly. Given that 31 October 2007 and 19 November 2007 are three weeks apart one of them cannot have been a “fortnightly” meeting.

28.It follows in my view that Mr Hardwick’s failure to attend on 1 October 2007 and one of the other failures could not be regarded as failures to comply with his Newstart Activity Agreement and accordingly s 629 of the Act was not enlivened on the basis of s 624(1)(d) of the Act.

Section 624(1)(a)

29.Consideration of the question whether Mr Hardwick’s failures amounted to Newstart participation failures on the basis of s 624(1)(a) of the Act poses three questions:

·were the requirements to attend notified under s 64(2) of the Administration Act?

·were the notifications reasonable?

·did the notification include the statement required by s 624(1)(a)(iii)?

30.The power to send the notification in s 64(2) of the Administration Act is conferred upon the Secretary. But, as appears from the discussion regarding delegation in paragraph [21] above, that power has been delegated by the Secretary to, amongst others, persons engaged by CRS Australia to perform functions or to provide services under the Memorandum of Understanding between the Department of Employment and Workplace Relations and CRS Australia.

31.Given that Mr Hardwick did not put the matter in issue I am prepared to infer from the form of the letters in each case that a person engaged by CRS Australia held the opinion required by s 64(2) of the Administration Act. There is also no dispute that the three notices were sent by prepaid post to Mr Hardwick’s address; indeed he accepts that he received them. Thus I conclude that the requirements to attend were notified under s 64(2) of the Administration Act.

32.Mr Hardwick’s Activity Agreement required him to attend fortnightly appointments with CRS Australia. It is not clear from the material when, or why, it was determined that he ought attend more frequently. It may have been open to Mr Hardwick to argue that a requirement to attend weekly when his Activity Agreement specified fortnightly attendances was unreasonable. However he did not do so and I would, in any event, regard a requirement to attend weekly meetings to assist with the task of finding employment as being reasonable. It seems to be a perfectly reasonable requirement for someone in Mr Hardwick’s position. Accordingly I consider that the requirements notified by the notices were reasonable.

33.In each case the notifications contained words to the effect that a failure to comply with the requirement could constitute a Newstart participation failure.

34.I am then satisfied that Mr Hardwick’s three failures to attend the appointments notified answered the description in s 624(1)(a) of the Act subject only to a consideration in the last instance, that of 26 November 2007, whether Mr Hardwick had a reasonable excuse for his failure to attend on that occasion.

A reasonable excuse?

35.What Mr Hardwick says of this instance is that he ought be excused because he was attending a job interview with a Mr Mark Meiers, a tiling contractor, at, or around, the time and was unable to attend his appointment with CRS Australia.

36.I share the considerable doubts expressed by the members of the Social Security Appeals Tribunal about whether Mr Meiers exists at all and whether the arrangements of which Mr Hardwick spoke were made at all. However, I can determine the issue on the basis of assuming the correctness of all that was said by Mr Hardwick. On his account a fellow resident of the caravan park where he was residing suggested that he telephone Mr Meiers about the possibility of employment; he did so and Mr Meiers asked that he attend at Burleigh, where Mr Meiers was said to be residing, a few days later at midday. That was the day of his appointment at CRS Australia’s offices at Bundall. The interview with Mr Meiers lasted about half an hour and was unsuccessful because Mr Hardwick had neither tools nor transport. At the end of the interview he had no way to get to the appointment with CRS Australia at 12.30pm that day.

37.The excuse proffered is required to be reasonable. The Secretary has determined a non-exhaustive list of matters to be taken into account when considering the issue of reasonable excuse. None of those matters have present relevance. What is relevant to me is that, on his account of events, Mr Hardwick made an appointment shortly prior to the time that he had been required to attend CRS Australia. He had neither funds for public transport nor any other reliable means of getting from Burleigh to Bundall at the conclusion of the interview with Mr Meiers. He must have realised that he would have difficulty in satisfying both commitments. He made no contact with CRS Australia prior to the appointment and none afterwards. I do not regard the excuse of the need to attend an interview with Mr Meiers as being reasonable.

Conclusion

38.It follows that I would affirm the decision under review. I would add for completeness that at the hearing I suggested to Mr Hardwick that he attempt to contact Mr Meiers and provide his contact details to Ms Knight within seven days. That was not done. However as I have assumed the correctness of Mr Hardwick’s account of events nothing turns on this.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ..................Signed..................................................
  Jacqueline Woods, Associate

Date of Hearing  21 October 2008
Date of last submissions          31 October 2008
Date of decision  7 November 2008
For the Applicant  Unrepresented    
For the Respondent                  Centrelink Legal Services