James and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 573
•3 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 573
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0848
GENERAL ADMINISTRATIVE DIVISION ) Re SAMANTHA JAMES Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date3 August 2009
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Secretary to reconsider in accordance with these reasons. ..................[Sgd]......................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – Work for the Dole Activities – Applicant failed to participate in approved program of work – No reasonable excuse for failure to participate – Activity agreement is a flexible arrangement – Applicant’s circumstances entitle her to a final opportunity to have discussions with Centrelink – Decision set aside and remitted.
Social Security Act 1991 (Cth), ss 28(1), 550(1)(f), 550(2), 550(2A), 550(2B), 551(1)(a), 551(1)(e)
REASONS FOR DECISION
3 August 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Ms Samantha James has applied to this Tribunal for review of a decision made by Centrelink on 3 November 2008 to impose an eight week non-payment period in respect of her youth allowance. That decision was affirmed by the Social Security Appeals Tribunal (“SSAT”) on 30 January 2009.
BACKGROUND
2. Ms James has been in receipt of youth allowance. On 23 September 2008, she signed an activity agreement with Mission Australia in which she agreed to participate full-time (25 hours per week for a total of 1,100 hours) in a work for the dole project between 23 September 2008 and 23 September 2009, as directed by her community work coordinator. That activity agreement was in evidence before me: T4, folios 15-19.
3. A matter of concern I expressed during the hearing of this application was whether Ms James was made aware of the consequences of breaching the activity agreement. I have examined the activity agreement, which in my view makes it clear she has to comply with it. The first page of the activity agreement contains a statement that the compulsory activities in the agreement “are those I must do in order to receive my Centrelink payment”: T4, folio 15. The last page of the activity agreement contains a statement that “You may have a serious failure recorded against you if you, without good reason: …. are a long term jobseeker and fail to meet the requirements of full time Work for the Dole”: T4, folio 19.
4. On 29 September 2008, Ms James advised Mission Australia that she was moving to Peak Crossing and that she would need a new host: Annexure A. At that time, Mission Australia informed Ms James that she was moving to an area with less employment opportunities and no public transport: T6, folio 29. On 30 September 2008, she spoke to an authorised review officer (“ARO”) of Centrelink and advised that she was moving to Peak Crossing to live with her boyfriend full-time, and that she would continue to participate in the work for the dole program: T5, folio 25.
5. On 17 October 2008, Ms James did not attend her work for the dole appointment. This incident was investigated. On 22 October 2008, she spoke to Max Network. She advised that she had been attending her appointments and that her mother took her to those appointments: T6, folio 29. On 31 October 2008, a Centrelink social worker spoke to Ms James to ascertain whether there were any personal barriers that impacted on her capacity to attend work for the dole appointments. The report of the social worker contains the following comments:
“It is the SW [social worker] assessment that there are no personal barriers disclosed by Samantha which have impacted on her capacity to attend WFD [work for the dole] on 17/10/08, or which continue to impact on her capacity to comply with participation requirements. File records indicate that Samantha been [sic] able to arrange transport to WFD in the past as her mother was able to drive her. Additionally, Samantha advised SW that she has been commuting up to Royal Children’s Hospital in Brisbane to visit her niece who had been in hospital. Samantha advised SW that she is commencing WFD at Ipswich PCYC next week, and that this should be easier for her to get to. She acknowledged the importance of attending WFD”[1].
[1] T6, folio 29-30.
RELEVANT DECISIONS
6. On 3 November 2008, Centrelink decided that Ms James had incurred a serious participation failure. On 5 November 2008, she sought a review of that decision. On that date, the decision was affirmed and referred to an ARO for further review. On 28 November 2008, the ARO affirmed the decision.
7. On 12 December 2008, Ms James appealed to the SSAT. On 30 January 2009, that Tribunal affirmed the decision under review.
8. On 25 February 2009, Ms James filed her application for review to this Tribunal.
RELEVANT LEGISLATION
9. Section 551(1)(e)(i) of the Social Security Act 1991 (“the Act”) relevantly provides for when youth allowance is not payable:
“551 Allowance not payable because of repeated or more serious failure
…
(1) A youth allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 551A, if the person:
…
(e) fails, without reasonable excuse:
(i) to commence, complete or participate in an approved program of work for income support payment that the person is required to undertake…”
That section provides that youth allowance is not payable for a period of 8 weeks. There appears to be no provision enabling me to abridge that provision.
10. Section 550(1)(f) of the Act defines youth allowance participation failures and relevantly provides:
“550 Youth allowance participation failures
…
(1) A person commits a youth allowance participation failure if the person:
…
(f) fails:
(i) to commence, complete or participate in an approved program of work for income support payment that the person is required to undertake; or
(ii) to comply with the conditions of such a program…”
11. One matter that I raised at the hearing was whether the expression “approved program of work”, contained in both the above provisions, was defined in the Act. The advocate at the hearing then tendered in evidence Instrument DEEWR SSL 2 of 2008 (“the Instrument”), made by the Acting Secretary under s 28(1) of the Act on 27 June 2008. The Instrument declared that all programs of work administered by the Commonwealth department responsible for employment matter, known as Work for the Dole Activities, are approved programs of work for income support payment.
12. Under subsection 550(2) of the Act, a person does not commit a youth allowance participation failure if the person “had a reasonable excuse for the failure”.
13. Section 550(2A) of the Act requires the Secretary, by legislative instrument, to determine and publish matters the Secretary must take into account for the purposes of determining whether a person has a “reasonable excuse” for committing a youth allowance participation failure.
DID APPLICANT FAIL TO PARTICIPATE IN APPROVED PROGRAM OF WORK?
14. It is not in dispute that the Applicant failed to attend her work for the dole appointment on 17 October 2008, which was a Friday.
15. Ms James entered into an activity agreement with Mission Australia on 23 September 2008, the details of which are outlined above (see paragraph 2). There is evidence before me that on 23 September 2008, her community care director had an interview with Ms James. The record of that interview states that Ms James chose to undertake a work for the dole activity on “Wed Thurs Fri 8am‑4pm”: Annexure A.
16. I am satisfied, having regard to the Instrument made by the Acting Secretary under s 28(1) of the Act on 27 June 2008, that the program under the activity agreement was an approved program of work that required the Applicant to fully participate in full-time work for the dole for a total of 25 hours a week, from 23 September 2008 to 23 September 2009: T4, folios 15-19.
17. I find that on 17 October 2008, Ms James failed to participate in an approved program of work.
DOES APPLICANT HAVE A REASONABLE EXCUSE?
18. I next have to consider whether Ms James had a “reasonable excuse” for not attending work for the dole on 17 October 2008.
19. Section 551(1)(e) of the Act provides that youth allowance is payable if a person had a “reasonable excuse” for their failure to commence, complete or participate in an approved program of work for income support payment. Also, under subsection 550(2) of the Act, a person does not commit a youth allowance participation failure if the person had a “reasonable excuse” for the failure.
20. The Social Security (Reasonable Excuse) (DEWR) Determination 2006 (“the Determination”) outlines a list of matters that the Secretary must, under s 550(2A) of the Act, consider when deciding whether an excuse is reasonable: see T3, folios 12-14. I am satisfied that none of the matters outlined in subsection 4(2) of the Determination are met in this case. At the hearing, I clarified that there is no medical evidence relating to the failure by Ms James to attend her work for the dole appointment on 17 October 2008. In considering whether Ms James had a “reasonable excuse” for not attending on that date, I am not limited to the matters outlined in the Determination: see s 550(2B) of the Act.
21. In evidence are statements of Ms James to the community work coordinator, Centrelink and the SSAT that she moved to Peak Crossing to live with her boyfriend. In a letter to the SSAT dated 9 December 2008, Ms James stated that “due to low availability of accommodation I have had to move for affordability reason [sic]”: T11, folio 70.
22. I should mention that when I first had a hearing of this application, the hearing was by telephone. As Ms James did not have a landline available and was unable to hear me because of the poor quality of her mobile telephone connection, I decided that the initial hearing had to be adjourned. Another reason why I adjourned that hearing was because I was concerned that Ms James, as an unrepresented applicant, should have the opportunity to place evidence before me supporting the allegation she raised in a letter received by Centrelink on 25 May 2009 (Exhibit B): that she moved out of her home because she did not feel safe around her partner’s father. That allegation was supported by an unsigned statement in the name of her partner that was written by Ms James.
23. In a letter dated 2 June 2009 to Ms James, Centrelink requested confirmation that her partner had signed the statement and that he would be available for the hearing: Exhibit B. Prior to the adjournment, Ms James confirmed that she would ask her partner to sign the statement. I then stated that I would adjourn the hearing to a date when her partner would be available. This Tribunal set the date for the resumed hearing after confirmation from Ms James that that date was when her partner would be available in person.
24. At the resumed hearing of her application, Ms James stated that her partner had not signed the statement. Indeed, she stated that her partner had thrown the statement away. Ms James also said that although her partner had been initially given leave by his employer for the date of the adjourned hearing, his leave had then been withdrawn by his employer. At the resumed hearing, Ms James elected not to call any witnesses to give evidence, including her mother who attended with her. Ms James stated that she herself had decided not to give any evidence and asked me to consider her application on the material that was admitted in evidence before me.
25. I appreciate that Ms James’s mother has been able to take her to most work for the dole appointments, but her mother has a young child and so may be unable to assist on all occasions.
26. I have also considered the allegation Ms James raised in the letter received by Centrelink on 25 May 2009: that she moved out of her home because she did not feel safe around her partner’s father. Ms James did not give evidence about this matter, meaning that her allegation was not able to be subject to cross-examination. Her partner did not sign the statement (discussed above) and was not available to give evidence on her allegation. However, I do not think that Ms James’s allegation is a matter of recent invention. In fact, it is recorded that when Ms James spoke to the ARO on 28 November 2008, she stated she had personal reasons for moving to Peak Crossing and was not prepared to tell the ARO what those reasons were: T10, folio 62.
27. On the state of the evidence before me, I cannot be satisfied that Ms James had a “reasonable excuse” for her failure to attend her work for the dole activity on 17 October 2008. However, I am aware that Ms James is pregnant and unrepresented. In the circumstances, I consider that before any final decision is made on whether to impose an eight week non-payment period, Ms James should be given a final opportunity to have discussions with Centrelink. The allegation Ms James raised in the letter received by Centrelink on 25 May 2009 is a sensitive matter. It may be that Ms James and her partner are more comfortable in being interviewed by an officer of Centrelink than in giving evidence before a Tribunal. Centrelink will then have the opportunity to consider whether they accept her explanation for moving to a remote location, which was responsible for her failure to participate.
28. In making my decision, I should mention that I am not making any reflection on the Centrelink officers. Those officers can hardly be expected to have considered an allegation the particulars of which were unknown to them. In fact, I consider that Ms James was fairly treated previously in the internal review processes when she stated she was unable to work in a chicken factory. I am also conscious that the decision under review did not place any reliance on s 551(1)(a) of the Act.
29. I should also mention that, in my view, the activity agreement is a flexible arrangement. Indeed, the third page of the activity agreement contains the following understanding: “I can ask to have the terms of this Activity Agreement changed at any time”: T4, folio 17. When Ms James telephoned Mission Australia on 29 September 2008 and 13 October 2008 her calls should have been treated as a request to amend the terms of her activity agreement.
DECISION
30. I set aside the decision under review and remit the matter to the Secretary to reconsider in accordance with these reasons.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
Signed: ..............................[Sgd]...........................................
Mátyás Kochárdy, Research AssociateDates of Hearing 23 June 2009 and 22 July 2009
Date of Decision 3 August 2009
The Applicant was self-represented.
For the Respondent Jasmine Forsyth, Departmental Advocate
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