Isherwood and Secretary, Department of Employment and Workplace Relations (Social services second review)

[2024] AATA 2534

Isherwood and Secretary, Department of Employment and Workplace Relations (Social services second review) [2024] AATA 2534 (18 July 2024)

Division:GENERAL DIVISION

File Number:          2023/6320

Re:Christopher Isherwood

APPLICANT

AndSecretary, Department of Employment and Workplace Relations

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:18 July 2024

Place:Hobart

Pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975, the Tribunal varies the first review decision of the Social Services and Child Support Division dated 1 August 2023 so that the Applicant’s Jobseeker Payment is cancelled with effect from 6 October 2022, not 3 October 2022, pursuant to s 42AM(4) of the Social Security (Administration) Act1999. The decision under review is otherwise affirmed.

.............................[signed]..............................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – where applicant was in receipt of jobseeker payment – where payment cancelled on basis applicant failed to comply with his reconnection requirement – where applicant’s payment cancelled by respondent – where applicant sought internal review – where internal review affirmed decision to cancel payment – where applicant sought review by Tribunal – where Tribunal at first review affirmed decision – where applicant sought second review by Tribunal – where respondent submitted second review should vary but otherwise affirm first review decision – first review decision varied but otherwise affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Senior Member D. J. Morris

18 July 2024

BACKGROUND

1. Since 2006 the Applicant, Mr Christopher Isherwood, has been in receipt, on and off, of Newstart Allowance (‘NSA’) and Jobseeker Payment (‘JSP’).

2. In January 2019 he was granted NSA and was transferred to JSP on 20 March 2020. He entered into a ‘Job Plan’, which is an employment pathway plan, with Services Australia, part of the Respondent’s Department, and an employment services provider called APM Employment Services (‘APM’) in March 2022.

3. The Job Plan contained various mutual obligation requirements that Mr Isherwood must undertake in return for receiving income support payments. They included:

   “undertaking job search and/or other activities as specified in this plan that will assist me in finding and keeping a job, as well as attending appointments, job interviews and accepting any offer of a suitable job. I am aware that if I can’t attend my appointments, activities or job interviews I must contact my provider (or Services Australia, if I don’t have a provider) before the appointment, activity or job interview is scheduled to occur.

   I understand that if I don’t comply with my mutual obligation requirements, including those set out in the items marked as compulsory below, my income support payments will be suspended. If I persistently fail to comply with my requirements, I understand my income support payments may be reduced or cancelled.”

4. The Job Plan set out mutual obligation requirements, including that the Applicant agreed to attend appointments with third party organisations (not being APM) as required and that APM will notify him of the appointments, and that he agreed to attend fortnightly Disability Employment Services appointments with APM.

5. On 24 May 2022, Mr Isherwood was exempted from his mutual obligation requirements for a period of three months, ending on 22 August 2022, because of a medical condition.

6. On 17 August 2022, Services Australia issued a noticed dated two days before to Mr Isherwood’s ‘myGov’ account, and notified him by email, advising that his mutual obligation exemption was ending from 23 August 2022 and that he had to attend appointments with APM in order to continue getting his JSP.

7. On 23 August 2022, APM issued Mr Isherwood with a notice to attend an appointment with APM Burnie on 2 September 2022, and set out the location and time of the appointment. This notice was sent by post to Mr Isherwood’s nominated postal address on 23 August 2022 and a copy sent to his myGov account on 1 September 2022. The Applicant was sent a reminder of the appointment by text message to his recorded mobile telephone number.

8. On 1 September 2022, Mr Isherwood updated his contact number with Services Australia to a new mobile telephone number.

9. On 2 September 2022, the Applicant failed to attend his appointment at APM Burnie and did not contact Services Australia or APM about his inability to attend. A staff member of APM attempted to contact Mr Isherwood but was not successful.

10. On 5 September 2022, APM issued the Applicant with a notice to attend an appointment with APM Burnie on 16 September 2022. A new date and time of the appointment was provided. This notice was sent to Mr Isherwood’s postal address and to his myGov account on 5 September 2022.

11. On 6 September 2022, Services Australia suspended the Applicant’s JSP from 2 September 2022 for not complying with a compulsory requirement arranged by an employment service provider, in breach of s 42AL of the Social Security (Administration) Act 1999 (‘the Administration Act’).

12. On 8 September 2022, Services Australia issued a notice dated 6 September 2022 to Mr Isherwood’s myGov account. This notice informed him that his JSP was suspended and required him to reconnect with APM under s 42AM(2) of the Administration Act.

13. On 15 September 2022, APM issued Mr Isherwood a reminder notice by text message and to his myGov account regarding his appointment on 16 September 2022.

14. On 16 September 2022, Mr Isherwood failed to attend his appointment at APM Burnie and did not contact Services Australia or APM about his inability to attend. A staff member of APM attempted to contact the Applicant but was not successful.

15. On that same date, 16 September 2022, the Applicant was sent another notice that he had an appointment with APM Burnie on 3 October 2022. This notice was sent by post to his nominated address and to his myGov account on the same date. On 2 October 2022, APM sent Mr Isherwood a text message reminder, and a reminder to his myGov account.

16. On 3 October 2022, Mr Isherwood failed to attend his appointment at APM Burnie and did not contact Services Australia or APM about his inability to attend. A staff member of APM attempted to contact the Applicant but was not successful.

17. On 3 October 2022, Services Australia decided to cancel the Applicant’s JSP from 3 October 2022 for failing to comply with his reconnection requirement within 28 days of being notified of the requirement to do so under s 42AM(3) of the Administration Act.

18. On 5 October 2022, Mr Isherwood contacted Services Australia regarding the cancellation of his JSP. The Applicant told the officer that the reason was he had missed ‘multiple’ appointments with APM. Mr Isherwood told the officer he did not receive any notification from APM about any appointments but then said he had a letter advising him to contact Centrelink about his cancellation. He was advised by the officer that he had to re-apply for JSP.

19. On 5 October 2022, the Applicant re-applied for JSP, and it was granted.

20. On 5 October 2022, Mr Isherwood sought internal review of the decision to cancel his JSP by an Authorised Review Officer (‘ARO’), an officer of the Respondent’s Department not involved in the original decision.

21. On 2 February 2023, the ARO affirmed the original decision. Mr Isherwood sought review by the Social Services and Child Support Division of this Tribunal (‘first review’).

22. On 1 August 2023, the first review affirmed the ARO’s decision. On 25 August 2023, Mr Isherwood sought a further review, as he is entitled to do, by the General Division of the Tribunal (‘second review’).

    HEARING

23. A hearing was held on 1 May 2024. Mr Isherwood attended and made oral submissions and gave evidence. The Respondent was represented by Ms Stefana Doslo, Acting Senior Government Lawyer.

24. The Tribunal took into account a Statement of Facts, Issues and Contentions of the Applicant, and a Statement of Facts, Issues and Contentions of the Respondent. The Tribunal also admitted into evidence other exhibits which are in the annexure to these reasons.

25. At the conclusion of the hearing, the Tribunal gave leave to the Applicant to provide any further submissions on which he intends to rely by 15 May 2024, and for the Respondent to provide any submissions in reply by 29 May 2024. Both parties provided submissions. The decision was then reserved.

    THE APPLICANT’S CONTENTIONS

26. Mr Isherwood submitted that his JSP was incorrectly cancelled on 3 October 2022 and should have been cancelled on 6 October 2022. He submitted that he had until 6 October 2022 to comply with his reconnection requirements, which he told the Tribunal he did on 5 October 2022.

27. The Applicant said he spoke to an employee of APM on 5 October 2022 and she told him his JSP had been cancelled that day ‘and there was nothing I can do’. He said he also spoke to Services Australia and Work Force Australia on the same day. He told the Tribunal his JSP should not have been cancelled.

28. Ms Doslo said that the Respondent agrees with the Applicant that the first review decision should be varied and that the date the JSP was cancelled should be from 6 October 2022, being 28 days after the benefit was suspended for failing to reconnect. However, the Respondent submitted that Mr Isherwood failed to reconnect with APM and therefore the power to suspend the JSP had been correctly exercised.

29. Ms Doslo said that APM had been contacted and confirmed that there was no record Mr Isherwood contacted them on 5 October 2022, therefore he failed to comply by 6 October 2022 and, as a consequence, the JSP should have been cancelled.

30. The Respondent submitted that if the Tribunal finds that the Applicant did contact APM on 5 October 2022, he satisfies the reconnection requirement. She said that arrears are only payable if it is found under s 42AF of the Administration Act that the JSP should never have been suspended.

    APPLICANT’S ORAL EVIDENCE

31. The Applicant was taken to the ST documents. He agreed that a letter was sent to his postal address regarding his appointment with APM Burnie on 2 September 2022, but said he did not receive the letter but found a message in his myGov account in-box.

32. When asked whether he recalled being sent reminders by text message, Mr Isherwood said at the time he was going through a rough period and his psychologist advised him not to have a mobile phone.

33. He told the Tribunal that he accessed his myGov account through his computer and did log in to that account on 5 September 2022. He said he could not recall whether he received the email notifying him of the 2 September 2022 appointment with APM Burnie.

34. Mr Isherwood said that one of his neighbours had a reputation for eccentric behaviour and she had been stealing mail from his letterbox and, he believed, the mail of other residents around him. He speculated that might be why he did not receive the correspondence referred to in the Respondent’s submissions.

    THE RESPONDENT’S CONTENTIONS

35. Ms Doslo submitted that on 30 April 2024, in response to an inquiry from the Respondent’s Department, APM had confirmed they had no record of Mr Isherwood contacting them between 3 and 6 October 2022. They stated:

    There are no file notes in our internal software system to confirm that Mr Isherwood contacted APM at any time between 3 October 2022 and 6 October 2022. I have also spoken to Mr Isherwood’s Employment Consultant at the time who has checked her email inbox and was not able to identify any email or other contact.

    File notes state that APM unsuccessfully attempted to contact Mr Isherwood a number of times, including on the following dates...

36. The dates then listed by APM were: 23 August 2022; 2 September 2022; 16 September 2022; 27 September 2022; 3 October 2022; 10 October 2022.

    CONSIDERATION

37. The Tribunal accepts the joint submissions from the parties that the correct date for the cancellation of the Applicant’s JSP should have been from 6 October 2022, and not 3 October 2022. That is consistent with the relevant provisions of the Administration Act.

38. In regard to Mr Isherwood’s contention that he did, in fact, contact APM on 5 October 2022, the preponderance of evidence points away from that. In the Tribunal’s view, the Applicant has confused his conversations on 5 October with both Services Australian and Work Force Australia, and thinks he also contacted APM on the same day.

39. The Respondent made direct inquiries of APM, and it would appear from the comprehensive nature of the response, drawn from APM’s own systems, about other attempted contacts with Mr Isherwood at that time, any contact initiated by him would be very likely to be recorded.

40. I accept the Applicant’s evidence that he may not have received some letters posted to him because, apparently, of a local mail thief. But the difficulty for Mr Isherwood is that receiving notices by post was not the sole means of contact APM and Services Australia made with him. He was also sent notices to his myGov account, as well as text messages and reminder text messages, which he accepted.

41. The Applicant provided a letter from a clinical psychologist to his general practitioner dated 3 May 2023, recording that he attended twelve consultations under a mental health plan from 28 April 2022 to 3 May 2023 in support of the fact that he suffered from a mental health condition. The Tribunal accepts that, and considers that the three-month medical exemption he received from his mutual obligation requirements was properly granted by the Respondent.

42. However, there is no evidence to support his somewhat surprising contention that his clinical psychologist advised him not to have a mobile phone. Even if that were true, on his own evidence he had his computer and was able to log in and see his myGov account, even if he did not do so as regularly as he could have.

43. Without dwelling on the medical contents of the clinical psychologist’s letter, it is telling that progress in resolving his mental health condition had been reduced because of what was described as his ‘intermittent attendance’ and his agreement to do homework after sessions which he has then not done, ‘tending to stay overwhelmed’.

44. The Tribunal concludes that the overall picture at the time is that Mr Isherwood was disorganised in his personal administration. This is not intended as a harsh comment, just a realistic one, and one that is supported by his own admissions in evidence about not acting on correspondence and other messages he received at the time. It is to be hoped that things have improved.

45. The Tribunal finds that the Applicant did not make contact with APM on 5 October 2022. Therefore the JSP was correctly cancelled from 6 October 2022. This is a somewhat moot point because, as can be seen earlier, Mr Isherwood contacted Services Australia about the cancellation on 5 October 2022, re-applied, and JSP was granted. But it is relevant in relation to whether any arrears are payable on the basis that the JSP should never have been suspended. I conclude no arrears are payable.

    DECISION

46. Pursuant to s 43(1)(b) of the AAT Act, the Tribunal varies the first review decision of the Social Services and Child Support Division dated 1 August 2023 so that the Applicant’s JSP is cancelled with effect from 6 October 2022, not 3 October 2022, pursuant to s 42AM(4) of the Administration Act. The decision under review is otherwise affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................................[sgn]...................................

Associate

Dated: 18 July 2024

Date of hearing:	1 May 2024
Date final submissions received:	29 May 2024
Applicant:	Self-represented
Counsel for the Respondent:	Ms Stefana Doslo
Solicitors for the Respondent:	Services Australia Litigation Branch

ANNEXURE

Schedule of Exhibits

Section 37 of AAT Act documents (TD)  Exhibit R1

Section 38AA of AAT Act supplementary documents (ST)              Exhibit R2

Appointment letters, 2.9.2022; 16.9.2022; 3.10.2022  Exhibit R3

Reminder notices to Applicant  Exhibit R4

Email chain with APM Employment Services  Exhibit R5

Clinical psychologist report dated 3 May 2023  Exhibit A1

Email chain from December 2023  Exhibit A2