Jade and Secretary Department of Education Science and Training

[2007] AATA 1378

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1378

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1104

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PARISA JADE

Applicant

And SECRETARY DEPARTMENT OF EDUCATION SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date29 May 2007

PlaceSydney

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 20 July 2006.  In its place the Tribunal decides that the Applicant does not owe a debt to the Commonwealth, subject to the determination of the issue raised in paragraph 31 of the reasons for decision.  For the purpose of determining that issue, the Tribunal remits the matter to the Respondent for reconsideration.

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

Mr S E Frost
  Member

CATCHWORDS

SOCIAL SECURITY - youth allowance - how to qualify for youth allowance - person originally undertaking full-time study - move to part-time study - whether qualified as a jobseeker - activity test satisfied – decision of SSAT set aside

LEGISLATION

Social Security Act 1991 - s 540, 541, 541C, 544, 544A, 544B

Social Security (Administration) Act 1999 - s 63

REASONS FOR DECISION

29 May 2007   Mr S E Frost, Member        

1.      Parisa Jade is a young woman who hopes to go to university and become a teacher.  Pending her acceptance into an appropriate university course, she enrolled in a Certificate course in Tourism at Blacktown College of TAFE and started receiving youth allowance as a full-time student.

2.      In the first semester of 2005 she reduced her study load to part-time but failed to notify Centrelink of that fact.  She continued to receive youth allowance.  Centrelink formed the view that her move to part-time study meant that she was no longer entitled to youth allowance.  They raised a debt and sought to recover the overpayment.  Ms Jade thinks she has not been overpaid.

issues

3.      The central issue is whether Ms Jade has a debt to the Commonwealth.  The questions that need to be addressed are:

(1)What requirements did Ms Jade need to meet to qualify for youth allowance throughout the period 7 February 2005 to 31 August 2005?

(2)Did she meet those requirements?

(3)Has she been overpaid, and if so, for what period?

(4)If she has been overpaid, should the debt be recovered?

the youth allowance requirements

4.      The relevant part of the Social Security Act 1991 (the Act), section 540, says that to be qualified for youth allowance, Ms Jade must:

(a)either satisfy the activity test or be exempted from it;

(b)be of youth allowance age;

(c)comply with any Youth Allowance Activity Agreements that apply to her; and

(d)be an Australian resident.

did she meet those requirements?

5.      It is not disputed that requirements (b) and (d) in paragraph 4 above are satisfied.  It is also not disputed that there have never been any Youth Allowance Activity Agreements applying to her – requirement (c).  The final requirement is requirement (a), the activity test requirement.

6.      Ms Jade had not been exempted from the activity test.  So, unless she had satisfied the activity test at all times, she would not have been qualified for youth allowance. 

7.      The relevant parts of the Act dealing with the activity test are sections 541 to 541C.  The general rule, in subsection 541(1), is that a person satisfies the activity test in respect of a period if one of the following applies:

(a)the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study; or

(b)the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia; or

(c)the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or

(d)the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection (2).

8.      As far as paragraphs (c) and (d) are concerned, there was no Activity Agreement applying to Ms Jade, and the Secretary had not notified her under subsection (2) that she had to satisfy any particular requirements.  That leaves paragraphs (a) and (b) to consider.

9.      If either of paragraphs (a) or (b) is satisfied, then Ms Jade will have satisfied the activity test unless there is a special rule that reverses that position.

activity test paragraph (a) – undertaking full-time study?

10.     There is no dispute that during the first semester of 2005 Ms Jade was not undertaking full-time study.  Nevertheless, she was still receiving youth allowance because Centrelink still believed that she was a full-time student. 

11.     Ms Jade may originally have “satisfied” the Secretary that she was undertaking full-time study, but that satisfaction was reached on the basis of incorrect, or at least incomplete, information.  When the Secretary obtained all the correct information, he became no longer “satisfied” that she was undertaking full-time study.  The question is now whether Ms Jade has satisfied me that, throughout the period, she was undertaking full-time study.  She has not satisfied me.  In fact, she concedes that she was not undertaking full-time study during the first semester of 2005.  As a result, she has not met the requirement in paragraph (a) of subsection 541(1).

activity test paragraph (b) – actively seeking, and willing to undertake, paid work in australia?

12.     At no stage did Ms Jade satisfy the Secretary that, throughout the period, she was actively seeking, and willing to undertake, paid work.  The Authorised Review Officer (ARO) considered her “job-seeking” activities when a review was done in May 2006, but thought that there was insufficient evidence to support a finding that she had been actively looking for suitable work.

the secretary’s contentions

13.     The Secretary’s written contentions in relation to Ms Jade’s “job-seeking” activities were as follows:

In the Secretary’s view, the Tribunal must also assess the evidence of job search activities provided by Miss Jade in comparison with the normal requirements of a youth allowance job seeker.  Job seekers are required to attend Job Network for the purpose of registration (s 63 of the Administration Act).  Job seekers were routinely required to apply for advertised vacancies and provide Centrelink with a written statement from the employer confirming the application (s 541C of the Act).  Job seekers are routinely required to enter into activity agreements detailing specific activities that must be completed in order to continue to qualify for Centrelink payments (s 544 and 544A of the Act).  Activity Agreements may include a range of terms such as completing a specified number of job contacts (usually 10 per fortnight) or a number of applications for vacancies per fortnight, recording job contacts in a job seeker diary and providing that diary to Centrelink for review of job search activities, attending the Job Network, attending interviews, undertaking job search training, obtaining job search support, checking the Australian Job Search touch screens and vocational profile for vacancies (s 544B of the Act).

14.     The so-called “normal requirements of a youth allowance job seeker” that are referred to in the Secretary’s statement stem from different legislative provisions from those that are in issue here. 

15. Section 63 of the Social Security (Administration) Act 1999 – the “Administration Act” – is a provision that empowers the Secretary to require a person to do certain things “if the Secretary is of the opinion” that the person should do those things.  In that context, registration with the Job Network cannot be a universal requirement of youth allowance job seekers.  It is only a requirement if, in the individual case, the Secretary makes it a requirement.  The Secretary did not make it a requirement in Ms Jade’s case.

16.     Similarly, under subsection 541C(1) of the Act, the Secretary “may notify a person in writing” that the person must apply for a particular number of job vacancies.  Subsection (2) then says:

The person must give the Secretary a written statement from each employer whose job vacancy the person applied for that confirms that the person applied for the job vacancy.

17.     The reference in subsection (2) to “the person” must be a reference to the person who has been notified under subsection (1) of the obligation to apply for a particular number of job vacancies.  In other words, the requirement to provide a written statement from the employer is not imposed on every youth allowance job seeker, but only on those who have been given a notice under subsection 541C(1). 

18.     This is an important point because of what I referred to earlier as the “special rules” concerning the activity test.  One of those special rules is in section 541A, which says that a person “cannot be taken to satisfy the activity test” if:

·the person fails to comply with a notice to the person under subsection 541C(1); or

·           the person contravenes subsection 541C(2).

19.     Ms Jade was not given a notice under subsection 541C(1), and, on the view that I have taken, it cannot be the case that Ms Jade contravened subsection 541C(2).  This “special rule” therefore does not operate against her.

20.     The last of the Secretary’s written contentions concerned Activity Agreements.  Under the Act, the Secretary “may require” a person to enter into one of these – section 544A – and if the requirement is made, the person must enter into one, and must take reasonable steps to comply with it – section 544.  If the person is not required to enter into an Activity Agreement, then no obligations under section 544 or 544A are imposed on the person.  Ms Jade was not required to enter into an agreement.

21.     The consequence of what I have set out at paragraphs 14 to 20 is that the so-called “normal requirements of a youth allowance job seeker” were not imposed on Ms As a result, she did not need to meet them.  The question is simply whether she has satisfied me that she was actively seeking, and willing to undertake, suitable paid work in Australia. 

22.     My conclusion that this is the proper test seems to be consistent with the statement made by the ARO at page 97 of the “T” documents:

… [people who are] able to demonstrate that they have met the activity test through activities other than study and who are not over YA age (21 for jobseekers) will not have a debt raised against them.  Therefore, if you can provide suitable evidence of your job seeking efforts for the period of the debt then we may again review part or all of the debt.

23.     Ms Jade gave some evidence to the Social Security Appeals Tribunal (SSAT) in support of her contention that, from the time in the first semester of 2005 when she stopped studying full-time, she was “job-seeking”.  However, the SSAT was not satisfied that the level of job-seeking activities that she was involved in would have been sufficient for her to satisfy the activity test.

24.     By the time she reached this Tribunal, Ms Jade had prepared a much more comprehensive list of potential employers that she says she approached during the first semester of 2005.  The list now numbered exactly ten potential employers for each of the 17 fortnights from 5 January 2005 to 31 August 2005.  (The period of claimed overpayment is actually shorter than that – 7 February 2005 to 31 August 2005.)

25.     There are some obvious shortcomings in the list she has provided.  The first is that it is almost certainly inaccurate to some extent, since it was compiled 18 months or more after the activities were allegedly carried out.  The second is that it contains a number of repeat entries – AA Appointments, for example, appears in 12 of the 17 fortnightly lists; Flight Centre appears a total of 17 times in 11 of the fortnights; Star Appointments appears 16 times in 10 of the fortnights.  There are also multiple entries for Hays Personnel, Hallis Corporate Recruitment Services, Travel People, Manpower and others.  Even allowing for the fact that some of these larger entities operate at multiple locations, it is curious that a job-seeker would target employers in this repetitive way.

26.     On the other hand, there is evidence (in the form of acknowledgment emails) of the receipt of emailed job applications by seek.com, Gulf Air, Hays Personnel and Alliance Recruitment at different times during the period 5 January 2005 to 31 August 2005 (the last three after 7 February 2005), and some others in later periods.  Ms Jade said that she had received many more emails confirming her approaches but she had deleted them from her email records, not appreciating at the time how important they might become. 

27.     In addition to those emails that she has kept, there is a letter dated 30 June 2006 from Travel People confirming that Ms Jade registered with that recruitment agency on 31 March 2005 and that she was successful in obtaining employment, through that agency, with The Travel Corporation on 2 May 2005.  There is an email dated 17 July 2006 from Hallis Personnel Services confirming that Ms Jade attended an interview with that agency on 7 July 2005.  There is also a letter dated 18 July 2006 from Star Appointments confirming that Ms Jade had emailed her resume to that agency on 26 August 2005 seeking a role as a wholesale travel consultant.

28.     To be “actively seeking” paid work, a person needs to be trying, in a sustained way and with diligence and vigour, to secure a paid position with a potential employer.  Ms Jade was doing this.  It is true that her job applications could have been better directed, that she could have cast her net more widely, that she could have been more active in seeking part-time as well as full-time work.  It is also true that if she had notified Centrelink that she was no longer a full-time student and wanted to be treated as a job seeker, Centrelink would probably have insisted on more methodical and better targeted approaches for work.  But the activities that I find she undertook satisfy the statutory test.

29.     I am satisfied that during the whole of the period 7 February 2005 to 31 August 2005, Ms Jade was actively seeking suitable paid work in Australia. 

30.     I am also satisfied that she was, for the whole of the period 7 February 2005 to 31 August 2005, willing to undertake paid work.  I am satisfied that she would have accepted any job offer (other than for unsuitable work) that came to her in response to the approaches that she made to potential employers during this period.  Indeed, there is evidence that she did accept two job offers that came to her – one from Travel People for work with The Travel Corporation during May 2005 and one from Manpower, who arranged a job for her at Customcall from 29 August 2005.  (In terms of the definition of “unsuitable work”, for a young woman like Ms Jade, the main categories of unsuitable work are work for which she is not qualified, work that is too far away from where she lives, or work that is too hard for her to get to.)

31.     There is, however, one possible qualification to her satisfaction of the activity test throughout the period 7 February 2005 to 31 August 2005.  Subsection 541(3) of the Act says that a person who, like Ms Jade, is not undertaking full-time study cannot be taken to satisfy the activity test if the person is employed in full-time paid work for at least 35 hours per week (or a lesser normal workload for the particular industry).  It will be necessary for Centrelink to examine, in relation to the fortnight or fortnights during which Ms Jade was employed by The Travel Corporation from 2 May 2005, and by Customcall from 29 August 2005, whether subsection 541(3) has any application in this case.

32.     Subject to the issue raised in paragraph 31, Ms Jade was qualified for youth allowance throughout the period 7 February 2005 to 31 August 2005.

has ms jade been overpaid?

33.     Ms Jade has not been overpaid youth allowance (subject to the issue raised in paragraph 31).

conclusion

34.     For the reasons stated, I set aside the decision of the Social Security Appeals Tribunal made on 20 July 2006.  I decide instead that Ms Jade does not owe a debt to the Commonwealth, subject to the issue raised in paragraph 31.  For the purpose of determining that issue, I remit the matter to the Secretary for reconsideration.

I certify that the preceding 34 paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:  …...[K Portus]…….
  Associate

Date of Hearing  20 March 2007, 23 April 2007
Date of Decision  29 May 2007
Advocate for the Applicant       Self-represented
Advocate for the Respondent   Mr J Larcombe of Centrelink, Legal Services