Henney and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1639
•3 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1639
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/984
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES HENNEY Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT and WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr EK Christie, Member Date7 August 2007
PlaceBrisbane
Decision The decision under review is affirmed. This means that Mr Henney’s application for review is unsuccessful.
...................[Sgd].........................
Member
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
No: 2007/0984
General Administrative Division
Re: James Henney
Applicant
And: Secretary, Department of Employment and Workplace Relations
Respondent
CORRIGENDUM [2007] AATA 1639
TRIBUNAL: Dr EK Christie, Member
DATE: 3 September 2007
PLACE: Brisbane
The Reasons for Decision dated 7 August 2007 are amended so that at paragraph 8(c) on page 4 the word “agreed” is omitted, and replaced with the word “argued”.
DR E K CHRISTIE
MEMBER
CATCHWORDS
SOCIAL SECURITY – newstart allowance – job capacity assessment appointment – reasonable excuse: words and phrases: “reasonable”
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) s 624
Social Security (Administration) Act (Cth) ss 63, 64Social Security (Reasonable Excuse) (DEWR) Determination 2006
Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295
Rohrmoser v Registrar of Trade Marks (1987) 70 ALR 613
Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471
REASONS FOR DECISION
7 August 2007 Dr EK Christie, Member Introduction
1. This is an application for review of the decision of the Social Security Appeals Tribunal (the “SSAT”) made on 14 March 2007 to impose a participation failure on Mr Henney for failing to attend a job capacity assessment appointment.
2. The evidence and information before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) (Exhibit 1) and the various exhibits lodged by the parties.
3. The applicant represented himself at the hearing. The respondent was represented by Mr R Hamilton, a Departmental Advocate. Mr Henney declined to give sworn evidence at the hearing and instead, relied on submissions based on the evidence and materials before the Tribunal.
Issues before the Tribunal
4.The only issues for the Tribunal to decide were:
i Whether Mr Henney had a reasonable excuse for not attending his job capacity assessment appointment on 1 December 2006; and
ii Whether a participation failure should be imposed on Mr Henney.
Facts
5.Mr Henney has been in receipt of Newstart Allowance (NSA) since April 1999 (T25, folio 57).
6. On the basis of the evidence before it, the SSAT made the following Findings of Fact (T2, Folio 5):
(i)Mr Henney has been in receipt of Newstart Allowance since 1999.
(ii)On 20 November 2006 (T5) Mr Henney received a notice from Centrelink reminding him he had an interview on 22 November 2006 in Chermside.
(iii)He rescheduled that interview to 1 December 2006.
(iv)By letter dated 23 November 2006 Centrelink informed him that “if you fail to attend this appointment you may incur a participation failure”.
(v)Mr Henney did not attend the appointment on 1 December 2006.
(vi)By letter dated 20 December 2006 Centrelink informed him that it had imposed a participation failure due to his failure to attend the appointment of 1 December 2006.
7. The Policy Guidelines for the Social Security Act 1991 (at 1.1.J.10) provide the following details on the scope of “Job Capacity Assessment” (JCA):
“JCAs will be conducted by assessment organisations contracted to the Department of Human Services.
JCAs are a holistic, comprehensive assessment and identification of an individual’s:
· barriers to finding and maintaining employment (this may relate to the impact of a person’s disability, medical condition and/or other disadvantage/s they have),
· current and future work capacity (in hour bandwidths),
· the interventions/assistance that are appropriate to help a jobseeker to improve/maximise their current work capacity.
JCA providers will be able to refer jobseekers to an employment or support service that meets their individual needs, including the Job Network, vocational rehabilitation services, the DEN, PSP or JPET.
As part of the assessment process, assessors will have access to relevant available information about the jobseeker, which may include current and past medical /disability status, and prior participation and employment history. Assessors will also liaise with treating doctors and relevant health professionals as required.
Target groups
Assessments will be required for people from the following target groups including:
· very long term unemployed and mature age (over 50 years of age) jobseekers -lodging medical certificates seeking exemption from activity testing requirements, or who may need to have their work capacity assessed.”
Mr Henney’s Case
8.Mr Henney’s submissions are set out as follows:
(a) “The participation failure should be revoked for the following reasons:
(1) The notice to attend the JCA is illegal under s 64(5) of the 1999 Act because it did not:
· state that it was given under s 64
· specify which type of examination I was required to undergo
(2) The requirement to attend a JCA was unreasonable as per s 624(1)(a) of the 1991 Act because
· none of the examinations listed in s 64(2)(b)(v) is an appropriate solution to the perceived problem of non-attendance
· it is unreasonable to expect someone to attend one of these examinations without specifying which one
· the JCA is not designed to address problems of attendance” (Exhibit 3)
(b)“…. the request to undergo a medical, psychiatric or psychological examination simply because I allegedly have a history of non-attendance is not reasonable. None of these examinations will resolve the supposed problem of non-attendance. Moreover, the JCA is designed to assess a person’s capacity to work, not deal with their attendance history.” (Exhibit 3)
(c)“The contention that written notice to attend a JCA was properly given as per s 64(5) is false: none of the notices to attend the JCA stated that they were given under s 64 and none of them specified which examination I was to attend. The contention that I was in breach of the Act is false. As I have agreed, notice to attend the JCA was not properly given and the requirement to attend the JCA was unreasonable in my case.” (Exhibit 4)
(d)“The contention that I have not offered a reasonable excuse for not attending the JCA is false. I certainly do have a reasonable excuse in that the notices to attend the JCA did not state that they were given under s 64, and the requirement to attend the JCA for the reason stated in the T documents is unreasonable. Had I merely been required to attend a particular place for particular purpose, notice to attend a JCA need only be given under s 63(2)(c).”
Consideration of the Issues
9. Section 624(1)(a) of the Social Security Act 1991 (the SS Act) provides that Mr Henney would be subject to a participation failure if he failed to comply with a requirement under section 64 of the Social Security (Administration) Act 1999 (“the Admin Act”):
“624. Newstart participation failures
624.(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 Administration Act; 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”
10. Because Mr Henney is in receipt of NSA, and had been notified by Centrelink under s 64(2) of the Admin Act, s 63(2) of the Admin Act does not apply to his case. That is, section 63 “does not apply to a person to whom section 64 applies”: Admin Act s 63.
11. The next issue is whether the notification under s 64(2) was reasonable. The policy guidelines for JCA (see para 19) make it very clear that the purpose of assessment is to assist the long-term unemployed to find employment by providing interventions and/or assistance appropriate to help them improve their current work capacity. Consequently, in Mr Henney’s factual situation, I find the requirement for Mr Henney to undertake a JCA to be reasonable.
12. Section 64 of the Admin Act applies to Mr Henney’s case, as he is receiving NSA (ss 64(1)) and had received notification under s 64(2).
13. Section 64(2) of the Admin Act provides for Mr Henney to attend an office of the Department for a particular purpose.
“64.(2) If:
(a) this section applies to a person; and
(b) the Secretary is of the opinion that the person should:
(i) attend an office of the Department; or
(ii) contact the Department; or
(iii) attend a particular place for a particular purpose; or
(iv) complete a questionnaire; or
(v)undergo a medical, psychiatric or psychological examination; or
(vi) give information to the Secretary;
the Secretary may notify the person that the person is required, within a specified time, to:
(c) attend that office; or
(d) contact the Department; or
(e) attend that place for that purpose; or
(f) complete that questionnaire; or
(g)undergo that examination and provide to the Secretary the report, in the approved form, of the person who conducts the examination; or
(h) give that information to the Secretary;
as the case may be.”
14. In accordance with s 64(3) of the Admin Act, Mr Henney was notified for the purposes of s 64(2) by a notice sent by pre-paid post sent to the last known postal address of Mr Henney.
15. In addition, s 64(5) of the Admin Act requires that the notice sent to Mr Henney must inform him of the effect of s 64. Section 64(4) sets out the effect of a notice sent out under s 64(2):
“If:
…
(b)the Secretary is satisfied that it is reasonable for this section to apply to the person; and
(c)the person does not take reasonable steps to comply with the requirement of the notice;
the payment that the person is receiving or has claimed is not payable.”
16. Finally, s 624(2) of the Social Security Act 1991 provides that a failure to comply with a requirement stated in s 624(1) is not a participation failure, if Mr Henney had a reasonable excuse for not complying:
“624.(2) Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.”
17. About 20 November 2006, Mr Henney was given written notice to attend a JCA interview on 22 November 2006. The written notice was given in accordance with the authority of s 64 of the Admin Act. The written notice contained the words:
“This is a notice under social security law. If you do not attend this appointment and you do not have a valid reason:
·Your allowance may be stopped; and
·This may be a participation failure.” (T5, folio 20)
18. By mutual agreement, the JCA interview was rescheduled from 20 November 2006 to 1 December 2006. Mr Henney was given written notice of the rescheduled interview on 23 November 2006 (T8, folio 25) and 30 November 2006 (T10, folio 27). Both notices contained the participation failure warning in accordance with s 64(5) of the Admin Act.
19. I find that the statutory requirements imposed under s 64 of the Admin Act have been consistently followed and correctly applied by the respondent in accordance with the requirements of the Admin Act.
20. Notwithstanding that this is the case, Mr Henney failed to attend the JCA appointment on 1 December 2006. The issue that next arises for determination is whether Mr Henney had a reasonable excuse for his failure to attend.
21. The meaning of “reasonable” in terms of social security entitlement issues under the Social Security Act 1991 were considered in Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295, to mean the main reason for failure involved a matter that was within the control of the social security recipient. Similarly, in other case law, “reasonable” refers to circumstances that prevented compliance being out of the control of a person: Rohrmoser v Registrar of Trade Marks (1987) 70 ALR 613.
22. Using these Federal Court meanings given to the term “reasonable”, I can find nothing in the submissions of Mr Henney to support a finding that he had a “reasonable excuse” for failing to attend the JCA appointment on 1 December 2006. There was nothing to explain his failure that was not within his control that prevented him from attending the JCA interview.
23. In addition, to further support the finding that there is no reasonable excuse for failing to attend the JCA appointment, I conclude that:
i Based on a review of all the evidence and information before me, there is no matter set out in the Social Security (Reasonable Excuse)(DEWR) Determination 2006, that can be taken into account to support the case of Mr Henney that he had a reasonable excuse.
ii The earlier finding that the respondent had followed and correctly applied all the requirements of s 64 of the Admin Act.
24. I make the observation that the approach taken by Mr Henney to rely on s 64(5) of the Admin Act, isolated from all of the subsections of s 64, cannot be supported by the principles of statutory interpretation. The principles of statutory interpretation require s 64(5) of the Admin Act to be read with both, what precedes it, and, if the case, what follows it. As a principle of statutory interpretation, s 64(5) cannot be read literally, to make assumptions about its purpose based on its language, without considering what has preceded it - and then to read the preceding subsections of s 64 in the light of the purpose assumed for s 64(5): Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471.
25.For all of the above reasons I find:
i The requirement for Mr Henney to attend a JCA appointment to be reasonable;
ii That the respondent had complied with all the requirements imposed under s 64 of the Admin Act;
iii That Mr Henney did not have a reasonable excuse for failing to attend the JCA appointment on 1 December 2006; and
iv The participation failure had been correctly imposed.
26.The decision under review is affirmed.
27. Whilst this decision may seem harsh, it would be correct to regard it as unfortunate as there is no discretion in the legislation other than to make the decision I have made. A source of the problem relies on misconceptions about the status of a JCA held by Mr Henney. The Departmental Policy clearly sets out the basis for a JCA in a manner that is consistent with the objects of the legislation applying to this application for review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .....................................................................................
B. Hitchcock, Personal AssistantDate/s of Hearing 25 July 2007
Date of Decision 7 August 2007
Applicant Mr Henney, himself
Respondent Mr R Hamilton, departmental advocate
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