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

[2008] AATA 443

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 443

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/5925

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		EAK SING HENG

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date29 May 2008

PlaceMelbourne

Decision The application is remitted to Centrelink for reconsideration in accordance with these reasons.

(Sgd) John Handley

Senior Member

SOCIAL SECURITY – new start allowance recipient – three participation failures – non payment period of 8 weeks – legislative instrument per s 624 (2A) – relevant matters for committing a participation failure – applicant has poor literary and language skills, suffers a cognitive, neurological or psychiatric impairment which is unpredictable in nature – application remitted for reconsideration

Social Security (Reasonable Excuse) (DEWR) Determination 2006 s 4 (2)

Social Security Act 1991 (Cth) s 624, s 624 (2A) and s 629

REASONS FOR DECISION

29 May 2008   Mr John Handley, Senior Member

1.      Mr Heng, the applicant in these proceedings, applies to review a decision made by the Social Security Appeals Tribunal (the SSAT) on 13 November 2007.  The SSAT then decided to affirm a decision previously made by an officer of Centrelink to impose an eight week Newstart Allowance (NSA) non payment period due to three participation failures.

2.      The hearing was first listed on 10 April 2008.  Mr Heng was then unrepresented.  Mr de Uray appeared on behalf of the respondent.  I expressed concern that Mr Heng was not being assisted by an interpreter and he was not represented.  His spoken English was difficult to comprehend however he said that he was more fluent in the English language than his native Cantonese.  As the matter proceeded I was not confident that Mr Heng comprehended the decision under review nor was I confident that he could adequately present his application.  The matter was stood down and arrangements were made for him to consult with a legal aid officer who attends the Tribunal as part of a duty lawyer scheme.  An approach was also made to Welfare Rights Victoria however it was learnt that an advocacy service was not available.  Subsequent to an interview with an officer of the Legal Aid Commission on 2 May 2008 it was learnt that Mr Heng did not qualify for assistance.

3.      The hearing resumed on 15 May 2008.  By reason of a number of matters which were learnt during the hearing, I have decided for reasons which will follow later, that this application should be remitted to Centrelink for reconsideration.

4.      The circumstances giving rise to this review may be briefly summarised as follows.

5.      Mr Heng is a single unemployed 53 year old male who lives in a boarding house in Fitzroy.  He was born in Malaya and migrated to New Zealand in 1977 when he was then aged 23 years.  He attended tertiary schooling and ultimately obtained a degree in mechanical engineering.  He was employed in New Zealand and migrated to Australia in 1999.  He has had considerable difficulties securing any employment.

6.      Eventually he qualified for NSA and was obliged to enter into a number of Activity Agreements within the meaning of the Social Security Act 1991 (the Act).  The Activity Agreements contain a number of compulsory activities.  Failure to comply with those activities can result in a participation failure. Three participation failures can cause Centrelink to deny payment of NSA for a period of eight weeks. (Refer s 624 and s 629 of the Act). The decision under review may be set aside if the applicant can demonstrate that he has a reasonable excuse for failing to comply with the Activity Agreements.  By legislative instrument Social Security (Reasonable Excuse) (DEWR) Determination 2006 at s 4 (2), a number of circumstances are recorded which are matters which may be taken into account in order to decide whether a reasonable excuse for failing to comply with an Activity Agreement does exist. (Refer s 624 (2A) of the Act).

7.      The respondent contends that the applicant committed Newstart participation failures on 30 October 2006, 1 December 2006 and 23 April 2007 by reason of him failing to comply with compulsory activities recorded in Activity Agreements completed on 6 October 2006 and 9 January 2007.

8.      The compulsory activities recorded in each Activity Agreement are similar namely:

·A requirement to undertake four job search contacts per fortnight in each period of six months covered by each Agreement;

·seeking work by use of newspapers, word of mouth, cold canvassing, Australian job search touchscreen kiosks and the Australian job search website;

·approach employers directly and by telephone;

·checking for job vacancies in newspapers;

·accepting referrals for suitable employment;

·attend interviews with a job network provider (at the office of AMES in Coburg); and

·participate in an intensive customised support assistance program with AMES.

9.      The first participation failure was alleged to be a failure on the part of the applicant to apply for jobs through touchscreens, to telephone employers and engage in cold calling of employers.  The second participation failure makes similar allegations but adds that the applicant was making application for employment by handwritten applications in response to newspaper advertisements only.  The third participation failure alleges that the applicant regarded telephone applications for employment to be pointless, that he refused to cold canvas and refused to alter his method of seeking employment.

10.     I am of the view that there are three predominant features of the applicant and his circumstances which either became apparent or emerged during the hearing which have influenced me to decide that this matter should be remitted to the respondent for reconsideration.  Those features are summarised below under the headings of language, literacy and communication, obligations and illness or impairment.

language, literacy and communication

11.     The applicant's command of written English as evident from a letter that he wrote to a potential employer (A1) and his resumé (A2) is very good.  The language is clear, concise and easily understood.  The applicant said that these documents were written by him without assistance.  He said that he was able to read written English and frequently read the Age newspaper, especially when looking for job vacancies, but qualified his comprehension of written English when he said that he prefers to read plain simple language.  He said that technical written English is difficult to comprehend and he often does not read newspapers or books expressed in those terms.  The applicant said he did not read many of the documents which were in issue in these proceedings.  He had not read the T‑documents and had not read the Statement of Facts and Contentions which was lodged by Mr de Uray prior to the commencement of the hearing.  It was learnt that the applicant signed the Activity Agreements referred to earlier without reading them.  He placed his signature or initial against each of the compulsory activities without reading them.  He said he understood that in order to continue to qualify from Centrelink (an entity that he described as a higher authority) that he would be obliged to sign the document to ensure that payment of benefits continued.

12.     I do not understand the reluctance of the applicant to read written English.  His professed difficulty in comprehending technical terms is not an excuse or reason for failing to read at all.  That is to say, by failing to read documents, he would not know whether the written English language contained within the documents uses technical terms.  His professed difficulty comprehending technical terms is also difficult to understand because he is a person who has achieved a tertiary qualification in Bachelor of Engineering which I would assume involved reading and comprehending the English language much of which would contain technical language.  The applicant agreed in evidence that the Activity Agreements that he did sign compelled him to comply with the compulsory activities yet he did not seek any explanation or interpretation of them.

13.     The applicant's spoken English is poor.  He is a person who is very difficult to understand and it would not be difficult to imagine persons being reluctant to offer him an interview for employment, no less in circumstances where he canvassed by cold calling on the telephone.  This may also explain the applicant's preference to make applications for employment in writing.

obligations

14.     Centrelink consistently found in the three participation failures that the applicant had not applied for jobs by cold calling or self canvassing.  Indeed on the third occasion that a participation failure was raised, a Centrelink officer recorded that the applicant had stated that ringing for jobs is pointless and he stubbornly refuses to alter anything about the way he looks for work or applies for jobs which is very ineffective.  Those comments were made apparently in response to the applicant persisting to make applications for jobs by written letter attaching a resumé and his refusal to personally attend workplaces.

15.     This aspect was discussed during the hearing and it was learnt that when he was a student in New Zealand, he and other students frequently applied for and obtained casual or part time employment with shops or other institutions engaged in the hospitality industry by cold calling.  The applicant said he regarded those places as being public in nature and there was no restriction or impediment on him entering such premises and seeking employment.  However, he regarded factories and other places where he might be employed as being private, which he could not enter unless he had permission or he was attending for the purposes of an interview.  He said to enter such premises would be a trespass, that he was at risk of injury by being in the presence or precinct of machinery and in the event of damage or theft he may be accused.  The explanation he gave may be thought illogical but does explain his reluctance to attend workplaces seeking employment. 

16.     The applicant also said that he was insistent that he apply for employment by written letter attaching a resumé completed by him because it was of a more comprehensive nature than the resumé suggested by job network agencies.  Additionally he said that making an application for employment by letter was preferable to cold calling because it gave a potential employer an opportunity to consider the application.  I would think also – although not articulated by the applicant – that the comprehensive (handwritten) resumé completed by him which he attaches to all (written) job applications, gives a description of his qualifications and work experience and is more likely to be comprehended and understood by a potential employer than the applicant being expected to articulate his academic and work history by oral communication.

17.     The applicant was examined about how he would be perceived by a potential employer receiving a job application in handwriting on foolscap paper.  He acknowledged he did not have access to a computer, (and for reasons which will appear later, are beyond his skills), and his limited funds permit him only to purchase foolscap writing pads.

illness or impairment

18.     The applicant explained to the SSAT (paragraph 12) that he hears voices and sees ghosts.  He discussed this during the hearing of these proceedings.  He said between 2006 and 2007 he had been hearing voices which are continuous.  He said that he also has spirits in my mind which are continually present and which physically interfere with him.  He described his hands being pushed.  He said that the ghosts or the spirits try to stop me but I don't let them.

19.     It appears that the applicant is also unable to use a computer because of the presence, or influence, of the spirits upon him.  He said he cannot turn on a computer because the spirits have asked him not to use it and, additionally, he is unable to locate the on button.  He said unless the button is labelled as an on or off switch, he cannot find it.  Additionally, he said if he was able to engage a computer the spirits would tell him that he should not use a keyboard because he may erase or change information which is stored.

20.     The applicant then described an episode – which I did not fully ujnderstand because of the difficulty comprehending the applicant's oral English – of personal property owned by him having been stolen or removed and him having to follow the spirits' instructions.  He said he first encountered spirits in New Zealand and was then frightened.  He described the spirits as being evil.

conclusion

21.     Taken in isolation and without examining his circumstances, the explanations given by the applicant might cause persons to regard him as having failed to comply with Activity Agreements and that there was no merit in this application.

22.     However, having observed the applicant over three and a half hours during the hearing, I do think that he has given a number of explanations for his conduct which are valid – for him – and his circumstances are worthy of reconsideration.

23.     The legislative instrument referred to earlier, (at paragraph 4(1) (g), (2) (b), (c), (d) and (e)) provides a basis for finding relevant matters that may be taken into account to determine whether a reasonable excuse for failing to comply with a NSA Activity Agreement.

24.     The language skills of the applicant as recorded above are poor and I think he would present negatively to a potential employer if asked to attend for interview.  The influence on him by the spirits and the voices and ghosts interfere with his normal day to day functioning, they are unpredictable in nature and prohibit him from using a computer which would give him the opportunity to prepare and print job applications and a resumé and allow him to have access to job networks via the internet.  The applicant clearly suffers from an illness or an impairment which, although not being treated, would appear to be of a cognitive or neurological or psychiatric nature.

25.     I am satisfied the applicant is a witness of truth.  His demeanour and emotions at the hearing indicate that he is manifestly influenced and impaired by the spirits and ghosts and voices.  He has not consulted doctors for treatment and the absence of medical evidence prohibits any finding of diagnosis.  The explanations given concerning his method of applying for work – and the stated reasons for not applying – are plausible, and do constitute an excuse which, in the absence of counselling or encouragement or literary and language skills are reasonable.

26.     Having regard to the evidence heard which has been recorded on transcript and the findings above, I am of the view that this application should be remitted to Centrelink for reconsideration.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney Personal Assistant

Dates of Hearing  10 April and 15 May 2008
Date of Decision  29 May 2008
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr T de Uray, Centrelink