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

[2008] AATA 987

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 987

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1399

GENERAL ADMINISTRATIVE DIVISION		)
Re		MATTHEW HOLLYWOOD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date5 November 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision under review, namely the decision to impose an 8 week non-payment period on Mr Hollywood’s receipt of newstart allowance (the period 21 September 2007 to 15 November 2007) and substitutes the decision that Mr Hollywood did not incur a non-payment period.

....................[sgd]..........................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – entitlements – participation failure – concession by respondent – decision under review set aside

Social Security Act 1991 (Cth), s 629

REASONS FOR DECISION

5 November 2008 M J Carstairs, Senior Member      

1.      Matthew Hollywood sought review by this Tribunal of a decision imposing an 8 week non-payment period of newstart allowance, for the reason that Mr Hollywood had 3 “participation failures” in a 12 month period. 

2.      On the day of the hearing, the respondent conceded that the 3^rd participation failure, which Centrelink had recorded against Mr Hollywood in relation to events taking place on 3 September 2007, ought not to have been recorded against him.   The Social Security Act 1991 (the Act) requires 3 participation failures in a 12 month period before such 8 week penalty can be imposed (under s 629 of the Act). This section makes provision for “repeated or more serious” failures which result in a person’s newstart allowance then not being payable for 8 weeks.

3. In view of the concession, there is no need to detail the circumstances of the “participation failures”, nor to explain the requirements of the Act with respect to them. Suffice to say that I accept the respondent’s concession that there was no participation failure on 3 September 2007. The effect of this concession is that the requirements of s 629 of the Act for 3 participation failures are no longer present; hence, no penalty applies. Accordingly, the decision under review must be set aside. This means that although Mr Hollywood had participation failures on:

§  9 January 2007; and

§  22 February 2007,

these, taken alone, have no present effect on Mr Hollywood’s newstart payments. In the absence of a 3^rd participation failure, these two can have no further effect because the 12 month period has expired. 

4.      Mr Hollywood agreed at the hearing that the most appropriate way for the matter to be finalised was by formal decision of the Tribunal.  Accordingly, I will set aside the decision under review, namely the decision to impose an 8 week non-payment period with respect to the period 21 September 2007 to 15 November 2007, and substitute the decision that no non-payment period should be applied. 

5.      The stay of decision in place by order of the Tribunal dated 3 April 2008 is hereby vacated.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:............................[sgd]...................................................
  Joan Torbey, Associate

Date of Hearing  5 November 2008
Date of Decision  5 November 2008
The Applicant was self-represented           
Advocate for the Respondent   Ms M Brazier, Centrelink