Hoang Minh LE and Secretary, Department of Education, Employment and Workplace Relations

[2012] AATA 249

[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.

.......[Sgd].................................................................

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

1. 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.  

2. 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.

3. 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.

4. 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.  

5. 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

6. 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?

7. Mr Le argued that the agreement he signed on 25…