Holman and Secretary to the Department of Family and Community Services - [2002] AATA 751

DECISION AND REASONS FOR DECISION [2002] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/335
GENERAL ADMINISTRATIVE DIVISION
  Re:         ANNE CATHERINE HOLMAN
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             31 July 2002
Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
MemberSOCIAL SECURITY – newstart allowance – activity test breach penalty - whether applicant unreasonably delaying entering into agreement – whether person actively seeking employment
Social Security Act 1991 ss593, 605, 607
Re Secretary to the Department of Social Security and Harris (AAT 8465, 8 January 1993)

REASONS FOR DECISION

31 July 2002 M.J. Carstairs, Member

This is an application by Ann Holman (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 5 February 2002. The SSAT affirmed the decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent), that an 18 per cent activity test rate reduction should be applied to the applicant's newstart allowance, for the period of 26 weeks. The period dated from 1 November 2001 to 1 May 2002.
At the hearing the applicant represented herself. Mr T. Baker, an advocate with Centrelink, represented the respondent.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the oral evidence of the applicant.
BACKGROUND
The applicant was born on 24 August 1956. She was in receipt of newstart allowance in 2001, having previously been employed with the Victorian Police Department. On 24 August 2001 Centrelink sent a letter to the applicant (T8), requiring an attendance for an interview on 6 September 2001 at 10:30 a.m. The letter stated that the applicant was being referred to Sarina Russo Job Access (Sarina Russo) and she would be interviewed to negotiate a Preparing for Work Agreement (the activity agreement). The letter included details of the time and place of the interview and also stated that failure to attend might result in reduction or non-payment of newstart allowance.
Centrelink sent a further letter to the applicant on 7 September 2001 (T9), in which it was stated that, while the applicant had gone to an interview with Job Access and negotiated a Preparing for Work Agreement, the agreement had not been completed. Another interview was arranged for 20 September 2001. Centrelink sent a further letter (T11) on 2 October 2001, asking the applicant to attend an interview on 15 October 2001. The applicant did not attend on 15th October. On 16 October a Sarina Russo staff member telephoned the applicant about the non-attendance and the interview was rescheduled, firstly for 17 October and subsequently for 19 October. On 20 October 2001 Centrlink sent a notice of a further interview on 7 November 2001.
On 1 November a letter was sent to the applicant advising her that an activity test breach penalty would be imposed on her newstart allowance payment (T18). The applicant then sought review of that decision. On 29 November a Centrelink authorised review officer affirmed it. When the SSAT affirmed the decision on 5 February 2002 review was sought with the Administrative Appeals Tribunal on 28 March 2002.
THE EVIDENCE
In oral evidence Ms Holman said that she had first gone to Job Access on 24 August 2001 of her own initiative. At that time she had ceased only recently her employment with the Victorian Police, after having had a period on WorkCover due to an arm injury. The applicant said that she was limited in her employment prospects due to the effects of the arm injury. However, she had gone to Sarina Russo for help with a specific application for an advertised position, which she felt confident of securing. Ms Holman said that Sarina Russo was very helpful with assisting the preparation of the application and it was lodged on 27 August 2001. She said that, while she did not have an actual date for when she heard that she had not been successful, she thought it to be four or five weeks after she had applied for it.
Ms Holman said that she considered that, on the first meeting with Sarina Russo, she had done everything to comply with an activity agreement, except for signing the document. She had taken her curriculum vitae and provided other particulars, while her self initiated activity in seeking work also complied with the agreement. She said she believed that the matter was left on the basis that Sarina Russo would await the outcome of the job application, before there was any need to go further with the activity agreement.
Ms Holman said that she had discussed her arm problem with Sarina Russo and that they understood her situation in regard to her work limitations. Ms Holman said that she had received the letters setting out the various appointment times and had read them. She told the Tribunal that she had read the reference made in them to the effects on newstart allowance payments of not attending an interview. However, she said that she had formed the impression from Sarina Russo that the letters were just a requirement or formality that they had to go through, as they were aware that she was waiting to hear about the job.
Ms Holman said she understood from her contacts with Sarina Russo that they would be flexible about changing appointments. She said that it would have been a simple matter for her to go in and sign, if she had known that failure to do so would put her in the position of having a penalty imposed. Ms Holman said she had a clear recollection that she had telephoned Sarina Russo on 15 October 2001 to advise that she was ill. Under cross-examination, she confirmed that it was an illness unrelated to her arm condition and she did not have a medical appointment for it. She said Sarina Russo telephoned her on 16 October 2001 and she assumed that it was in response to her telephone call of the previous day. Also under cross-examination, she confirmed that she did not have a diary of telephone calls that she made, but said that she had ongoing contact with Sarina Russo. She confirmed that the appointment was rescheduled after the phonecall to 17 October 2001, and then to 19 October 2001, but that she did not attend either of those appointments.
Ms Holman said that she was ill on 15 October 2001 only. She went to the doctor a week later, but that was in relation to the arm condition. Ms Holman said that she was concerned that the SSAT had not taken into account the evidence she gave to them, that, prior to 15 October, she had discussed with Sarina Russo that she was not going in to sign an agreement, as she was applying for a job and that Sarina Russo were aware that she was actively looking for employment but was restricted in the work she could do. Ms Holman also said that she is now seeking post-graduate qualifications in counselling to assist her in looking for work in her specialisation.
The documentary evidence before the Tribunal included the authorised review officer's records (T28), as provided to him by Sarina Russo, which included their computer records that Ms Holman had failed to advise them of her inability to attend an interview on 15 October 2001. The SSAT also recorded in their decision that Cathy Devlin of Sarina Russo had checked computer records which showed that Ms Holman failed to attend interviews on the following dates: 6 September 2001, 1 October 2001, 15 October 2001, 17 October 2001 and 19 October 2001. Also in evidence (T33) were records of telephone contacts made by the applicant to Centrelink in the period 3 October 1997 to 5 March 2002. There was no entry of any telephone call in October 2001 apart from a telephone call on 31 October 2001.
Mr Baker submitted that it was not disputed that the notices of interview were sent and received by the applicant and that she did not attend an interview on 15 October. He submitted that the Tribunal should not accept the statutory declaration prepared by the applicant in November 2001 (T27) stating that she had phoned Sarina Russo on 15 October 2001, in preference to evidence from other sources, including computer records that the contact was not made.
Ms Holman submitted that she had effectively entered into an activity agreement. She submitted that she had gone voluntarily to Sarina Russo. She submitted that she should not be penalised by a failure by Sarina Russo to record her telephone contact, which was made on 15 October. She reiterated that the letters were merely standard letters and she that this was the way they were spoken of by Sarina Russo. She also submitted that she had been confident of getting the job at the time she applied.
CONSIDERATION OF THE ISSUES
The Social Security Act 1991 (the Act) provides:
605.(1) Subject to this section, if a person who has made a claim for, or who is in receipt of, a newstart allowance is not a party to a Newstart Activity Agreement, the Secretary may require the person to enter into such an agreement.
Under s605(3) the Secretary is to give the person notice of the requirement to enter the agreement and of the place and time. Under s607 of the Act if a person does not attend to the negotiation of the agreement, the Secretary may consider whether the person is unreasonably delaying entering into the agreement. If the Secretary is satisfied that the person is unreasonably delaying entering the agreement the secretary then may serve a notice on the person that they are taken to have failed. If it is so decided, then the provisions of s625(1) (1A) and s644AA come into play to effect the rate of newstart allowance payable for a period of time.
The Tribunal has considered all the documentary evidence, the evidence at hearing and the submissions made by the parties. The test that is to be applied is whether the decision-maker is reasonably satisfied that the person is unreasonably delaying entering into an agreement.
The legislation is designed to ensure that those who are seeking payments of newstart allowance and certain other payments under the Act comply with the requirements for eligibility that entail that a person is actively seeking work.
Clear provision is made for the sending of notices to enter into activity agreements, as happened in this case. The Tribunal is satisfied, and indeed it is not disputed, that the notices were served. Looking at the terms of s593 of the Act, part of satisfying the activity test for the receipt of newstart allowance, is that the person must be prepared to enter into an activity agreement.
Under s605 of the Act, the Secretary may require a person to enter into an agreement and when that requirement arises, the Secretary is to give the necessary notice: s605(3). As stated, the Tribunal is satisfied that the notices were given. They were given on several occasions. The Tribunal also accepts the reasoning in Re Secretary to the Department of Social Security and Harris (AAT 8465, 8 January 1993) that the notice in s605(3) need not be in writing, hence the renegotiation by Sarina Russo by telephone, setting different dates, also qualifies as notice of a requirement to attend interviews to sign an agreement.
The test in s607, requires the Secretary, and the Tribunal, standing in the shoes of the Secretary, where the person has been given notice did not attend, or did not agree to the terms of the agreement proposed, to consider whether the person is unreasonably delaying entering into the agreement. The issue of whether a person is unreasonably delaying entails both an objective test and a subjective test.
In this case, the Tribunal has taken into account the understanding Ms Holman had of her relationship with Sarina Russo and accepts that she held the view that the interview times could simply continue to be renegotiated. There is a clear pattern of this having occurred. However, whether a person is unreasonably delaying is not merely a subjective test. A person's understanding will come into the weighing up all the matters that are to be considered, but the test must also have an objective element to it, and must be looked at in terms of a reasonable person to ensure consistency in the application of the provisions under the legislation. Having weighed up all the evidence, the Tribunal is not satisfied, despite the statutory declaration to the contrary, that the applicant telephoned to cancel the appointment made on 15 October 2001. The Tribunal prefers the documentary evidence of the lack of contact, both on 15 October and on 19 October. The applicant accepts that she did not attend interviews scheduled for 15, 17 or 19 October 2001.
The Tribunal does not accept that the job application and its subsequent period of some four or five weeks can be taken into account in the failure to attend interviews scheduled in October 2001. On Ms Holman's evidence, she would have known by early October that she was not successful in securing that position. There is a pattern in this case of failure to attend interviews. The Tribunal takes note that there are different reasons at different times for that being so. But in the absence of any corroborating medical evidence for the failure to attend the appointments in October 2001, the Tribunal is reasonably satisfied that the applicant was unreasonably delaying entering an agreement about which she was notified. Therefore, the Tribunal affirms the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the twenty- four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  31 July 2002
Date of Decision:  31 July 2002
Solicitor for the applicant:           Nil — self-represented
Advocate for the respondent:       Mr M. Todd, Centrelink