Hoang Minh LE and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 249
•30 April 2012
[2012] AATA 249
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2878
Re
Hoang Minh LE
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 30 April 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – Employment Pathway Plan – no show no pay – serious failure – whether plan had regard to applicant's needs – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 593, 601, 605, 606
Social Security (Administration) Act 1999 (Cth), ss 234, 42C, 42M, 42NC, 42P, 42T, 42U
CASES
Dudzinski v Harris [2003] FCA 440
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Reasonable Excuse-Participation Payment Obligations) (DEWR) (Determination 2009 No.1)
REASONS FOR DECISION
Ms N Bell, Senior Member
30 April 2012
Mr Le signed an Employment Pathway Plan with Mission Australia Employment Services, Cabramatta on 25 March 2011. The plan was an agreement to attend fortnightly appointments where he would participate in job search skills for three afternoons per week, at a set time, for a period of six months from 25 March 2011 to 25 September 2011.
Mr Le failed to attend job search activities with Mission Australia on his first scheduled fortnightly appointments on Tuesday 5 April, Wednesday 6 April and Thursday 7 April 2011. He also failed to contact his job network member to explain his reasons for failing to attend.
On 18 April 2011, Centrelink conducted a Comprehensive Compliance Assessment which found that Mr Le had no barriers to his ability to attend job search activities.
An Authorised Review Officer affirmed the decision made on 18 April 2011.The decision applied a ‘no show no pay’ for the three dates where he failed to attend; a ‘no show no pay’ penalty totalling $142.47, which was deducted from Mr Le’s Newstart Allowance for the period 20 April 2011 to 3 May 2011; and, a “serious failure” on the basis of persistent non-compliance with his participation obligations. The serious failure attracts an eight-week non-payment period.
The Social Security Appeals Tribunal affirmed that decision in July 2011. Mr Le maintains that Centrelink had not complied with provisions of the Social Security Act 1991, by failing to have regard to his needs and by failing to give him notice.
ISSUES
The issues for me to consider are:
(i)Whether the Employment Pathway Plan agreement was void;
(ii)Whether Mr Le committed a ‘no show no pay’ and whether a penalty should be deducted from his Newstart Allowance;
(iii)Whether Mr Le has persistently failed to comply with his obligations in relation to a participation payment and whether he should be subject to an eight-week serious failure for non-participation; and
(iv)If so, whether Mr Le had the capacity to undertake a serious failure requirement or whether a serious failure period will cause Mr Le severe financial hardship.
WAS THE EMPLOYMENT PATHWAY PLAN AGREEMENT VOID?
Mr Le argued that the agreement he signed on 25 March 2011 is void because it did not comply with a requirement for notice under section 605(3)(b) of the Social Security Act. That provision requires the Secretary to give a person entering into an Employment Pathway Plan notice of the time and place at which the plan is to be negotiated.
Mr Le stated that in a previous Employment Pathway Plan signed on 7 January 2011 (which is not the subject of this review), he was sent a letter of invitation to attend the job network.
The Secretary submitted that the provision does not specify that notice be in writing nor how much notice is required and that Mr Le was notified orally. The Secretary referred me to the Federal Court’s judgement in Dudzinski v Harris [2003] FCA 440 in which it held that no particular period of notice is required by section 605 and the notice need not be in writing.
Mr Le received a phone call from Centrelink to attend the office and sign a new agreement. He met with a Vietnamese speaking officer of whom he could have asked questions and requested amendments to the Pathway Plan he agreed to and signed. He said he was aware, before he signed the agreement, of what he was being asked to do.
The agreement provided:
I agree to attend and fully participate in job search skills activities with MA from 25/03/2011 to 25/09/2011. I will attend on Tuesday, Wednesday and Thursday between 01.00PM and 03.00PM.
I UNDERSTAND THAT I MUST ATTEND ON THESE DAYS OR ON THE OTHER DAYS OF THE WEEK, IF I DO NOT ATTEND MY CENTRELINK PAYMENT WILL BE STOPPED.
Mr Le also submitted that the plan did not meet his needs, although he failed to articulate those needs. He expressed disdain for the plan and the service and assistance offered by Mission Australia Employment Services. He said could obtain work on his own. I note the Centrelink records showed that Mr Le has been on long term assistance on and off since 1991. In fact, Mr Le confirmed that he was referred to a job six months ago and is still there. I cannot be satisfied that the plan did not meet his needs.
There is no basis on which I can conclude that the agreement was void.
DID MR LE COMMIT ‘NO SHOW NO PAY’ AND SHOULD A PENALTY BE DEDUCTED FROM HIS NEWSTART ALLOWANCE?
Mr Le failed to attend job search activities on three dates from 5 to 7 April 2011. Section 42C(1)(a) of the Social Security (Administration) Act 1999, provides that a no show no pay failure should be applied if a job seeker fails, among other things, to participate in an activity required by the Employment Pathway Plan. However, section 42C(4)(ii) provides that if the job seeker had a reasonable excuse for failing to comply, then a failure may not be recorded.
The Guide to Social Security Law provides guidance on the meaning of ‘reasonable excuse’. In section 3.1.13.90 it states that “the meaning of the term ‘reasonable excuse’ is discretionary but the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. The failure must not simply be a deliberate act of non-compliance.”
Under section 42U(1), the Administration Act refers to a legislative instrument titled, the Social Security (Reasonable Excuse-Participation Payment Obligations) (DEWR) (Determination 2009 No.1). The Determination lists the matters that can be taken into account when determining whether a person had a “reasonable excuse” for not participating in compulsory job-seeking activities. They include such reasons as unstable accommodation, lack of literacy and language skills, unpredictable illness, cognitive impairment, psychiatric illness, drug or alcohol dependency, unforeseen family or caring responsibilities, death of an immediate family member and imprisonment.
Mr Le has said he refused to attend job search activities at Mission Australia on those dates as the Pathway Plan did not meet his needs in that he could conduct his job search on his own. He has identified no particular needs that require an approach other than the one set out in the plan. His failure to attend appears to be a deliberate act of non-compliance. Mr Le offered no other excuse for having not attended to his responsibilities and obligations under the agreement.
I must conclude that the breaches were committed without reasonable excuse. The Administration Act gives the Secretary, permission to deduct a penalty for the no show no pay failures, recorded against the job seeker under section 42D. A penalty of $142.47, was deducted from Mr Le’s Newstart Allowance for the period of 20 April 2011 to 3 May 2011.
Given that Mr Le failed to attend his job search activities and had no reasonable excuse for not attending, a penalty should be deducted from his Newstart Allowance for that period.
SHOULD MR LE BE SUBJECT TO A SERIOUS FAILURE FOR PERSISTENT NON-COMPLIANCE?
Under section 42M of the Administration Act, a serious failure for persistent non-compliance attracts a penalty of eight-weeks non-payment, ‘the serious failure period’.
The agreement and Pathway Plan Mr Le signed on 25 March 2011 are clear. The possibility that payment can be lost for eight-weeks was explicit. The agreement he signed states:
I understand that my Employment Pathway Plan includes activities that I must do (compulsory activities). I understand that if I don’t my income support may be reduced, or stopped for up to eight weeks.
Section 42M(2) of the Act provides:
(2) In determining whether a person commits a serious failure under subsection (1):
(a) the Secretary must not take into account failures that were outside the person's control; and
(b) the Secretary may only take into account any other failures that occurred intentionally, recklessly or negligently.
Section 42M(5) requires the Tribunal to have regard to the provisions of the, Social Security (Administration) (Persistent Non-compliance) (DEEWR) Determination 2009 (No. 1). The Determination states:
(1) For subsection 42M (4) of the Act, the following matters are matters that the Secretary must take into account in deciding whether a person persistently failed to comply with his or her obligations in relation to a participation payment:
(a) the findings of the most recent comprehensive compliance assessment in respect of the person (current comprehensive compliance assessment);
(b) whether, during the following period (assessment period), the person has committed 3 or more failures (whether those failures are of the same kind or of different kinds):
(i) the period of 6 months before the start of the current comprehensive compliance assessment; or
(ii) if the person has incurred a serious failure period in the period of 6 months before the start of the current comprehensive compliance assessment — the period from the end of that serious failure period until the start of the current comprehensive compliance assessment;
(c) if the person committed 3 or more failures during the assessment period:
(i) the number of failures; and
(ii) whether or not the failures demonstrate a pattern of non-compliance or should be viewed as a single instance of non-compliance;
Example
A job seeker who incurred three no show no pay failures for missing three consecutive days of an activity several months ago but has fully met their requirements since then would not necessarily be considered to be persistently non‑compliant on the basis of those failures.
(d) the extent to which the person has otherwise complied with his or her obligations in relation to a participation payment during the assessment period.
On 18 April 2011, Centrelink conducted a comprehensive compliance assessment of Mr Le’s participation failures. The assessment concluded that Mr Le was in stable accommodation. It also concluded that his employment consultant at the time of signing the Employment Pathway Plan was a Vietnamese speaker and that he was able to understand the requirements of the plan at the time of signing. Mr Le disclosed no barriers that may have had an impact on his ability to comply with participation requirements. He maintained then, as he does now, that he was under no legal obligation to attend job search activities.
As has already been found, the failures occurred on three dates in the same week. Mr Le confirmed to Centrelink on compliance assessment, that he had no intention of attending to his future obligations. His conduct demonstrated that his non-compliance was intentional.
I note that there is no record of failures prior to the three failures on 5, 6, and 7 April 2011. However Mr Le’s stated intention to not attend demonstrated a pattern of non-compliance.
DID MR LE HAVE THE CAPACITY TO UNDERTAKE A SERIOUS FAILURE REQUIREMENT?
The combined effect of sections 42NC and 42P is that unless a person does not have the capacity to undertake a serious failure requirement (for example, part-time work, work experience, approved training, or intensive job search) and serving a serious failure period would cause the person severe financial hardship, then a participation payment (for example, Newstart Allowance) is not payable to the person for the period.
There is no evidence of any barriers to Mr Le undertaking a serious failure requirement. Given this, it is unnecessary to determine whether he would be placed in severe financial hardship by serving a serious failure period.
It follows that Mr Le’s Newstart Allowance is not payable for an eight week non-payment period.
DECISION
The Tribunal affirms the decision under review. I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
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Associate
Dated 30 April 2012
Date of hearing 5 March 2012 Applicant In person Solicitors for the Respondent Mr G Lozynsky, Centrelink Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – Newstart Allowance
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Jurisdiction
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Administrative Review
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