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

[2008] AATA 975

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 975

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1416

GENERAL ADMINISTRATIVE   DIVISION		)
Re		NORMAN HEARN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date3 November 2008  

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B H Pascoe

Senior Member

SOCIAL SECURITY – newstart allowance – third participation failure within twelve months – no reasonable excuse

Social Security Act 1991

REASONS FOR DECISION

3 November 2008   Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 15 February 2008 which affirmed a decision of the respondent that the applicant would not be paid newstart allowance for eight weeks from 16 February 2007 as a result of a third newstart participation failure within twelve months.

2.      At the hearing the applicant, Mr N Hearn was unrepresented.  The respondent Secretary, Department of Education, Employment and Workplace Relations was represented by Mr M Hester, a senior legal services officer of Centrelink.  Evidence was given by Mr Hearn.

3.      Mr Hearn has been in receipt of newstart allowance since 20 February 2004. On 8 March 2006 he was given notice of a required interview with The Salvation Army Employment Plus (Employment Plus) in Melton.  He failed to attend and was advised on 1 June 2006 of a temporary stop of newstart allowance as a result of such failure.  It is noted that the records of Employment Plus note that Mr Hearn had failed to attend four previously arranged interviews on 21 December 2005, 3 January 2006, 8 February 2006 and 6 March 2006.  His payments were restored on the basis of a new appointment for 20 June 2006 at which he would be required to enter into an activity agreement.  He did attend on that date but refused to sign the agreement without time to fully consider its terms.  There was no subsequent response from him.  On 12 July 2006 he was warned of the consequences of participation failures.

4.      By notice of 4 September 2006, Mr Hearn was required to attend an interview with Employment Plus on 15 September 2006.  Again he failed to attend.  By letter of 28 September 2006 he was again warned of the potential consequences of this failure.  While the records of Employment Plus note that Mr Hearn failed to attend arranged interviews on 16 October,  29 November, 11 December 2006 and 16 January 2007 without a valid reason it was his failure to attend an appointment arranged on 13 February 2007 which was the third participation failure reported to Centrelink by Employment Plus.  An eight week non-payment period was imposed from 16 February 2007 to 12 April 2007 as a result of this third failure.

5. Under s 624 of the Social Security Act 1991 a person commits a newstart participation failure if he fails without reasonable excuse to comply with a requirement that was notified to him, was reasonable and such notification included a statement that failure to comply would constitute a participation failure. A participation failure is committed, also, if the person fails to comply with a requirement to enter into an activity agreement. Section 629 provides for non‑payment of newstart allowance for a period of 8 weeks if the person commits a third participation failure within a twelve month period. Section 624(2A) provides for a legislative instrument to determine matters that must be taken into account in deciding whether a person had a reasonable excuse for committing a participation failure. This legislative instrument is the Social Security (Reasonable Excuse) (DEWR) Determination 2006 which, insofar as is relevant to this application, sets out the matters to be taken into account as:

(a) the fact that the person is living in a non-permanent location on the streets or is using emergency accommodation or refuge at the time that the failure or refusal occurred; and

(b) the literacy and language skills of the person, if the person’s lack of such skills is significant; and

(c) any illness, impairment or condition of the person that requires frequent treatment, including any illness that is episodic or unpredictable in nature; and

(d)any cognitive or neurological impairment of the person; and

(e any psychiatric or psychological impairment or mental illness of the person; and

(f)any drug or alcohol dependency of the person; and

(g)any unforseen family or caring responsibilities of the person; and

(h)the death of an immediate family member;

6.      In his evidence, Mr Hearn accepted that he did not enter into an activity agreement.  He said that an agreement was presented to him and he requested a few days to consider its contents.  He said that he looked at it but didn’t like it.  He did not accept that it was an agreement but considered it was a statement of requirements with which he did not agree.  As a consequence, he did not sign the document.  He insists that, on each occasion when an interview was scheduled, he would have rung Employment Plus and told them that he could not attend.  When asked for his reasons he stated that it was likely that he could not afford to travel from Bacchus Marsh where he lived to Melton.  When asked why he had chosen the job network provider in Melton rather than the provider located one street away in Bacchus Marsh, Mr Hearn responded that he was concerned at the potential stigma of being seen by the local community when attending a local provider located across the road from the supermarket.  He said that his preferred method of travel to Melton was by car but, generally, he could not afford to put in the $30 of petrol required.  It is relevant, perhaps, that he considered the cost of travel to Melton as not only being the cash outlay but also the value of his time and the inconvenience. 

7.      It was clear from the evidence of Mr Hearn that he was dismissive of the requirement to attend interviews and enter into an activity agreement and, in fact, any other restriction imposed by Centrelink.  He did not believe that Employment Plus provided him with any useful service.  He seemed to have difficulty accepting any imposed obligations as a consequence of receiving newstart allowance.

8.      It is clear, also, that Mr Hearn committed at least three newstart participation failures within the twelve month period to 13 February 2007.  While the matters to be taken into account in considering whether there was a reasonable excuse are not exhaustive, none of those listed in the Legislative Instrument apply to the circumstances of Mr Hearn.  He said that he would have telephoned to say that he would not be attending an arranged interview but, even if he did, the Legislation requires a reasonable excuse.  On the evidence of Mr Hearn, I am satisfied that there was no reasonable excuse for his failure to attend.  Again, I am satisfied that there was no reasonable excuse for the failure to enter into an activity agreement.  It was clear that Mr Hearn simply took the proposed agreement away, decided he would not sign it and made no further attempt to negotiate any terms or conditions of that proposed agreement.

9.      As a result of the foregoing findings the decision of the SSAT should be affirmed.

10. At the hearing, the respondent submitted that Mr Hearn’s application should be dismissed under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 as, even if a decision favourable to him was made by this Tribunal, there would be no consequential benefit to Mr Hearn as a consequence of s 152(4) of the Social Security (Administration) Act 1999.  This section provides that the Social Security Law has effect as if the decision had taken effect on the day on which the application was made to the SSAT for review of that decision where such application was lodged more than 13 weeks after notice of the original decision was given and the SSAT varies or sets aside such decision.  Here, the decision of an authorised review officer was sent to Mr Hearn by letter dated 3 August 2007 and would be taken to have been received by him on 9 August 2007.  His application to the SSAT was lodged on 19 November, some 14 weeks and 4 days later.  As the eight week non-payment period had finished well before the date of application to the SSAT and no further penalty applied subsequently it was said that there could be no benefit to Mr Hearn of any favourable decision.  It is clear that the effect of a decision of this Tribunal to vary or set aside the decision of the SSAT would replace that decision and, as a consequence, could have effect only from the date of application to the SSAT.  While it is likely that the submission of the respondent may well have stated the correct position in this case, it is relevant only if the Tribunal varies or sets aside the decision of the SSAT.  As that decision is to be affirmed it is unnecessary to arrive at a formal view of the effect of the date of lodgement of the application to the SSAT.

I certify that the ten (10) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member

Signed:  Dianne Eva           

Clerk

Date of Hearing  22 October 2008
Date of Decision  3 November 2008
Self Represented  Mr Norman Hearn

Advocate for Respondent         Mr Mark Hester, Senior Legal Services Officer,        Centrelink