Harshaw and Secretary, Department of Family and Community Services
[2005] AATA 379
•29 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 379
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/118
GENERAL ADMINISTRATIVE DIVISION ) Re PHIL HARSHAW Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date29 April 2005
PlacePerth
Decision The decision under review is affirmed.
[Sgd] Dr J D Campbell Member
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance - Failure to attend a meeting - Issue of reasonable excuse - Imposition of a breach – decision under review affirmed.
Social Security Act 1991 – sections 583, 631, 644
Social Security (Administration) Act 1999 – section 63
REASONS FOR DECISION
29 April 2005 Dr J D Campbell, Member 1. Mr Phil Harshaw (“the Applicant”) in this matter seeks a review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 5 March 2004 to affirm the decision made by an Authorised Centrelink Officer on 26 November 2003 to impose a 16 per cent breach rate reduction from 30 December 2003 to 29 March 2004. The primary decision maker had also imposed a breach rate reduction for the period 10 December to 9 March 2004, but the breach rate reduction for this period was set aside by an Authorised Review Officer (“ARO”) in a decision dated 16 January 2004, and this was affirmed by the SSAT on 5 March 2004.
background
2. Mr Harshaw was in receipt of a Newstart Allowance throughout the period in question.
3. On 4 November 2003, Centrelink forwarded a letter to Mr Harshaw requiring him to attend a meeting on 1 December 2003 with PVS Workfind. This meeting was to be convened by telephone (T6).
4. On 18 November 2003 Centrelink sent Mr Harshaw a further letter reminding him of the meeting on 1 December 2003 (T8).
5. Mr Harshaw did not attend the scheduled meeting on 1 December 2003.
6. On 1 December 2003 Centrelink records detail Mr Harshaw ringing at about 1pm and talking with Mr Astone, about a breach which had been imposed in relation to a failure by him to attend an earlier scheduled appointment. Mr Harshaw is recorded as making no mention of the appointment that he was scheduled to keep on that same day (T18).
7. On 5 December 2003 Centrelink sent a letter to Mr Harshaw that as a result of his failure to attend a meeting on 1 December 2003, a breach would be imposed (T24).
8. On 11 December 2003 Centrelink records Mr Harshaw as ringing and talking to Ms Platts. It is recorded by Centrelink that Mr Harshaw did not attend the meeting on 1 December 2003 because he was told by “Hugh at DEWR” that he was being moved and that he did not think that he had to attend the appointment (T26).
9. It is acknowledged by the Respondent that Mr Harshaw had made a request for a change of Job Network Manager from PVS Busselton to another entity in a telephone call to Mr Hugh Buttsworth of the Department of Employment and Workplace Relations (DEWR) on or about 18 November 2003.
10. Centrelink record that Mr Buttsworth rang Mr Harshaw on 19 November 2003 and advised Mr Harshaw that he had spoken with Mr Mackie of PVS Busselton and that as the result of these discussions, he would not be transferred to another Job Network Manager (T25).
11. Mr Harshaw sought review of the decision to impose a breach penalty contained within Centrelink’s letter of 5 December 2003 for his failure to attend a meeting on 1 December 2003.
12. The ARO (Ms Conlon) spoke with Mr Harshaw on 15 January 2004. Ms Conlon records that Mr Harshaw stated that he did not attend the scheduled meeting on 1 December 2003, as he had to attend a medical appointment, the details of which he would not disclose (T38).
13. On 16 January 2004 Ms Conlon affirmed the decision made by the Centrelink officer on 5 December to impose a breach for failure by Mr Conlon to attend a meeting on 1 December 2003.
issue
14. The remaining and relevant issue in this matter is whether Mr Harshaw had a reasonable excuse for not attending the meeting on 1 December 2003, and that in such circumstances whether it was correct to impose an administrative breach rate reduction period from 30 December 2003 to 29 March 2004.
decision
15. For the reasons stated later in this decision I find that Mr Harshaw did not have a reasonable excuse when failing to attend a meeting on 1 December 2003. In such circumstances a finding to impose an administrative breach rate reduction from 30 December 2003 to 29 March 2004 is warranted.
evidence
16. Mr Harshaw detailed to the Tribunal that he had left school at age 15, undertaken a variety of work activities including a brief interlude in the Army in 1975, wheel alignment mechanic, land and survey department, transport industry, retail appliance salesman, private investigator and real estate sales, prior to establishing his own company in 1989. The latter activity was associated with the provision of Marquee Company, an activity which continued until February 1995, at which time a contract for provision of such was terminated.
17. Mr Harshaw stated that he moved to the South West in 1996, and did not commence receiving a Newstart Allowance until 1997. Mr Harshaw stated that he lives in a caravan on a friend’s property and that he has remained unemployed since 1997.
18. In relation to the issues in contention Mr Harshaw stated:
(a) That he found it increasingly difficult to deal with the three agencies over time. He considered them to be hostile in their approach to him, difficult to deal with and unhelpful as regards recognition of the difficulties he faced in communicating with them and the time and costs of face to face meetings.
(b) That he had been with another job network member namely the Salvation Army Employment plus Network until about June/July 2003, at which time he was transferred to Busselton. He found Mr Mackie to be unhelpful, confrontational and difficult, and in general terms a person he was unable to work with.
(c) Following his application (verbal) to be moved from PVS Busselton to another network member in November 2003, Mr Harshaw was of a belief that this was going to occur and that in the interim while such action was occurring he did not believe it either necessary and/or appropriate to maintain a relationship with PVS Busselton, or attend activities as directed by them.
(d) Mr Harshaw maintained a belief that such a transfer was going to occur. Mr Harshaw denies receiving a telephone call from Mr Buttsworth on 19 November 2003 stating that the transfer from PVS Busselton was not going to occur.
(e) Mr Harshaw also was of a view that PVS Busselton (Mr Mackie) was intent on creating situations whereby it was inevitable that Mr Harshaw would end up with a breach for non compliance. This, together with having to communicate with these agencies, was a source of considerable frustration and irritation to Mr Harshaw, as his means of communication are limited. Mr Harshaw believes that documents held by the three agencies involved have been distorted and are illustrative of the lies, fabrications and harassments that have occurred in the matter.
(f) Mr Harshaw explained that the circumstance of him having to attend a medical appointment on 1 December 2003 had been misinterpreted. In so stating Mr Harshaw stated that on the morning of 1 December 2003 he was awaiting a call from the rooms of a specialist in order that he make an appointment, with such a call being directed to a mobile phone number of a friend.
(g) That since 2004 he has been provided with a mobile phone (June 2004) by PVS Busselton, and that he has continued with PVS Busselton as his job network provider, with the relationship between the parties improving.
mr jorgen mackie
19. In evidence before the Tribunal Mr Mackie confirmed that the information provided in his statement dated 16 February 2005 (Exhibit R4) was correct. In oral evidence Mr Mackie detailed the following :
(a)That he was not aware of any dissatisfaction by Mr Harshaw in relation to the services provided by PVS workforce and that he believed that the interactions between himself and Mr Harshaw since 2 October 2003, the time at which he became Mr Harshaw’s case manager, were uneventful. He was unaware of any difficulties about which Mr Harshaw may have complained.
(b) That prior to Mr Buttsworth ringing on 18 November 2003 he was unaware of Mr Harshaw’s request to transfer to another job network provider. Mr Mackie inferred to the Tribunal that it was Mr Buttsworth’s decision as to whether Mr Harshaw could transfer. Mr Mackie, although having been advised by Mr Buttsworth, that Mr Harshaw would remain with his service, stated that he did not feel obligated to tell Mr Harshaw that his transfer was not going to occur, as he saw the responsibility for such action as resting with Mr Buttsworth.
ms platts
20. In oral evidence Ms Platts, a Centrelink Job Network Contact Officer with Centrelink, confirmed that the contents of the statement made on 15 February 2005 and in evidence before the Tribunal (Exhibit R2) were correct.
21. In both, the statement and her oral evidence Ms Platts referred in detail to contemporaneous Centrelink records, which contain her record of various conversations with Mr Harshaw on 24 November 2003 and 11 December 2003 and with Mr Buttworth on 11 December 2003.
22. Mr Harshaw took Ms Platt through each of the records in detail.
mr buttsworth
23. In oral evidence before the Tribunal, Mr Buttsworth, a former case officer for complaints with the Department of Employment and Workplace Relations (DEWR) and currently a self-employed film maker, confirmed that the contents of his statement made on 17 March 2005 and in evidence before the Tribunal (Exhibit R5) were correct.
24. In oral evidence, and again in his statement, Mr Buttsworth referred in detail to contemporaneous Department of Employment and Workplace Relations records which contain his record of conversation with Mr Harshaw on 18 and 19 November 2003, 28 November 2003, 5 December 2003 and 10 December 2003, the details of which are all contained within Exhibit R7.
25. Mr Harshaw sought further explanation from Mr Buttsworth as to the telephone calls on 18 and 19 November 2003, being concerned and believing the latter telephone call had not occurred.
26. At the completion of Mr Buttsworth’s evidence, Mr Harshaw informed the Tribunal that he was ceasing his participation in the hearing and requested the Tribunal to further deal with the matter on the paper, and with the material already in evidence.
consideration and findings
27. In addressing the issues raised in this matter, I note the totality of the evidence before the Tribunal. As regards the evidence given by each of the witnesses who appeared before the Tribunal I make the following comments:
(a) Mr Harshaw is a man of varied work experiences, who has been in work employment more or less continuously since he left school at age 15 until 1995. From 1997 Mr Harshaw has been in receipt of Newstart Allowance while living in isolated and restricted circumstances in a caravan on a friend’s property in South Western Australia. There are ample examples of Mr Harshaw’s displeasure with the various bureaucracies as evidenced in the Tribunal documents (T-Documents) and extracts from records of the Respondent’s witnesses. It is evident to the Tribunal that Mr Harshaw was angry and frustrated in his interactions with Centrelink, Department of Employment and Workplace Relations and the Job Network Provider. It is further evident that the latter three agencies interactions with each other did little to assist in negating a growing concern by Mr Harshaw that he was receiving less than appropriate assistance from his Job Network Provider.
(b) That Mr Harshaw’s evidence reflected his beliefs as to the events that are significant in this matter and which gave rise to the administrative penalty for failing to attend a meeting on 1 December 2003.
(c) That I accept his beliefs where it is corroborated by the written record of the various agencies, and in this regard I conclude that there is ample factual material supporting his complaints about his perceived lack of assistance and difficulties that he was experiencing with Mr Mackie at JVC Workfind. Similarly there is ample evidence in the records of Centrelink (Ms Platts) and DEWR (Mr Buttsworth) that he was angry and complaining of perceived difficulties in dealing with the three agencies.
(d) When it comes to the issue of whether Mr Harshaw was advised by Mr Buttsworth on 19 November 2003 that there was to be no change in his Job Network Provider, I find Mr Harshaw’s explanations less than convincing, particularly when the issue was addressed fairly and squarely by Mr Buttsworth when being questioned by Mr Harshaw.
(e) In relation to Ms Platt’s testimony, I find that she recorded the issues raised in conversations with Mr Harshaw and Mr Buttsworth fairly and with equanimity. It is evident that she became upset during some conversations with Mr Harshaw and that such unpleasantries were unnecessary in her view.
(f) In addressing the evidence of Mr Mackie, I consider that his evidence was both understated and not particularly helpful to the Tribunal. Mr Mackie denied that there was any turbulence in his interactions with Mr Harshaw, when clearly the evidence of Mr Harshaw and the records of Centrelink and DFWR state the opposite. While I recognise that Mr Mackie may have entertained a particular view of that relationship, any denial of the negative aspects of that relationship could only further anger and frustrate Mr Harshaw.
(g) Mr Buttsworth’s evidence was given with clarity and simplicity and without examples of abstraction and obfuscation. I found his evidence to be reliable and supported by the written records made by himself at the time and by Ms Platts in her records made at that time.
28. Having considered the reliability of the evidence given by the four witnesses which were subject to cross-examination, and again having reviewed all the material in this matter, I make the following findings of fact:
(a) On 4 November 2003 Centrelink forwarded a letter to Mr Harshaw requiring him to attend a meeting on 1 December 2003 with PVS Workfind – his attendance to be by way of telephone.
(b) On 18 November 2003 Centrelink sent Mr Harshaw a further letter reminding of his need to attend a meeting on 1 December 2003.
(c) On 18 November 2003 Mr Harshaw rang Mr Buttsworth (DEWR) to request a change of Job Network Manager from PVS Workfind because of dissatisfaction with Job Network Manager.
(d) That Mr Buttsworth did speak with Mr Mackie (PVS Workfind) on 18 November 2003 to discuss Mr Harshaw’s request for a change to another Job Network Manager.
(e) That Mr MacKie stated during the conversation with Mr Buttsworth on 18 November 2003 that PVS Workfind were providing services to Mr Harshaw in accordance with their contractual responsibilities; that he was able to work with Mr Harshaw and that he would not agree to his transfer to another Job Network Manager.
(f) That Mr Harshaw did not attend the scheduled meeting on 1 December 2003 with JVS Workfind.
legal overview
29. Section 63, subsections (1), (2), (3) of the Social Security (Administration) Act 1999 (“SSA Act”) provide the authority for Centrelink to require a Newstart recipient to attend a particular place for a particular purpose with such notice to attend to be in writing, or by way of notification in any other way (ss 63(8)).
30. Section 583 of the Social Security Act 1991 (“the SS Act”) provides for an administration breach rate reduction period if a person fails to comply with a requirement made under section 63 of the SSA Act.
31. Section 644C of the SS Act details that notice of commencement of breach rate reduction must be given in writing to an individual, with the rate reduction period commencing on the day on which the notice is given to the person.
32. Section 63(9) of the SS Act provides that an administrative breach rate reduction period may not apply if the person has a reasonable excuse for not complying with a notice issued under section 63(3) of the SS Act.
33. In addressing the circumstances of this matter, I conclude that Mr Harshaw failed to attend the meeting on 1 December 2003 and that imposition of administrative breach rate reduction period is appropriate, unless Mr Harshaw can demonstrate a reasonable excuse for not complying with his section 63 notice.
34. Mr Harshaw has put forward two reasons for not attending the meeting on 10 December 2003, namely:
(a) Did not believe that he had to attend, because he was waiting advice on his request to transfer from his existing Job Network Manager (PVS Workfind). In addressing this particular excuse, I have been particular in analysing both the evidence of the four witnesses before the Tribunal, their statements where applicable and contemporaneous records made by those involved. As a result of this analysis I am satisfied on the balance of probabilities that Mr Buttsworth did advise Mr Harshaw that he was not going to be transferred to another Job Network Manager in a telephone call to a mobile telephone number provided by Mr Harshaw on 19 November 2003. In so finding I rely upon the evidence of Mr Buttsworth, the details of his activities contained within the summonsed DEWR records for 19 November 2003, the evidence of Mr Mackie which confirms that Mr Buttsworth did ring him concerning Mr Harshaw’s request to transfer on 18 November 2003, and the evidence and records of Ms Platt in relation to a telephone call to Mr Buttsworth on 11 December 2003. It is also evident that I do not accept Mr Harshaw’s version of events, in the absence of any corroborating evidence. I further note that Mr Harshaw had opportunity during other interactions with DEWR (telephone call with Manager dated 25 November 2003; further telephone call with Mr Buttsworth on 28 November 2003) to explore the Job Network Manager transfer request prior to not attending the meeting on 1 December 2003. With such findings and in such circumstances I conclude that Mr Harshaw’s reason that he did not attend the meeting on 1 December 2003, because he believed that he was waiting advice on his request to be transferred to another Job Network Manager cannot be sustained as a reasonable excuse.
(b) The issue of a medical appointment:
I note Mr Harshaw’s evidence at the hearing that he was waiting a call from the specialist’s rooms to make an appointment on 1 December 2003, and that he was not attending at an appointment.
I note the Ms Conlan’s notes at T38, p110 in the Tribunal documents in which it is stated that she had spoken with Mr Harshaw on 15 January 2004 who stated that he had to attend a doctor’s appointment, a doctor who did not want to have his name disclosed and that he had advised PVS Workfind a few days before his non-attendance that he was unable to attend. I further note the statement of Mr Mackie who states that a check of the JVS Work Find records indicate no reference to a telephone call by Mr Harshaw concerning a doctor’s appointment. I also note records of JVS Workfind at T13 in the Tribunal documents which do not detail any issue of a doctor’s appointment in material detailed up to 18 November 2003. I also note the witness statement of Mr Astone, a Centrelink Customer Relations Officer, dated 16 February 2005, in which he states he received a telephone call from Mr Harshaw on 1 December 2003.
In noting the various aspects detailed above I am not satisfied that the variable circumstances nominated by Mr Harshaw to Ms Conlon and in evidence to the Tribunal take the matter much further. In my view they are essentially uncorroborated statements alleged to have been made and made by Mr Harshaw at different times well after the event which led to the administrative breach rate reduction period. In the absence of any corroborating evidence to support either position and in the knowledge that Mr Harshaw did contact Centrelink on 1 December 2003. I express great difficulty in accepting that Mr Harshaw’s was either unable to attend the meeting by telephone on 1 December 2003 as required and/or alternatively ring and detail his reason for non attendance was that he was awaiting to be transferred from PVS Workfind to another Job Network Manager and that the issue of a medical appointment was not raised until well after the event. I would also observe that there was nothing to prevent Mr Harshaw from attending the meeting by telephone on 1 December 2003, if indeed, he was awaiting a call from the specialist’s room to make an appointment for a future time, or in the alternate notifying PVS Workfind of such, even at the point in time he was due to have a telephone meeting with them. In all the circumstances, I am not satisfied and so find that the issue of a medical appointment does not constitute a reasonable excuse in the circumstances that I have considered in this matter.
35. For the reasons detailed I am not satisfied that Mr Harshaw had a reasonable excuse for not attending the meeting on 1 December 2003. In the absence of such a reasonable excuse I find that the administrative breach rate reduction period from 30 December 2003 to 29 March 2004 is appropriate.
determination
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: Neil Glaser
AssociateDate of Hearing 18 March 2005
Date of Decision 29 April 2005
Representative for the Applicant Self Represented
Solicitor for the Respondent Mr Pope
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