JAMES GRIMES and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 788

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 788

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6217

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES GRIMES

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date14 October 2009

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – Newstart participation failures – failure to comply with Newstart Activity Agreements – failure to attend reconnection appointment – whether notification of appointment included “compliance warning” – cancellation of Newstart Allowance – applicant had no reasonable excuse for participation failures – decision affirmed

Social Security Act 1991 ss 593, 601, 605, 606, 624 and 629
Social Security (Administration) Act 1999 ss 63, 64 and 80

Social Security (Reasonable Excuse) (DEWR) Determination 2006 s 4

Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988

REASONS FOR DECISION

14 October 2009   Senior Member R W Dunne    

introduction

1.      The applicant, Mr James Grimes, has been receiving Newstart Allowance (“NSA”) since April 2007.  In July 2008, he signed two Activity Agreements under the Social Security Act 1991 (“SS Act”). Between 24 July 2008 and 16 September 2008 the respondent (“Centrelink”) applied three participation failures against Mr Grimes’ NSA and a Centrelink officer made a decision to apply an 8 week non-payment penalty. A review of the decision by an Authorised Review Officer and later by the Social Security Appeals Tribunal (“SSAT”), at the request of Mr Grimes, resulted in the decisions relating to the participation failures being affirmed. Mr Grimes has applied to this Tribunal for review of the decision of the SSAT.

2.      At the hearing, Mr Grimes represented himself and Centrelink was represented by Mr Christian Visser (from Centrelink Legal Services and Procurement Branch).  The Tribunal received into evidence the T documents (Exhibit R1) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following documents:

·Job Capacity Assessment Report for the applicant dated 10 February 2009 (Exhibit A1);

·Activity Agreement between the applicant and Jobs Statewide developed on 7 July 2008 (Exhibit R2); and

·Activity Agreement between the applicant and Jobs Statewide developed on 30 July 2008 (Exhibit R3).

issues for the tribunal

3.      The issues before the Tribunal are:

(a)Did the applicant commit Newstart participation failures on 8 July 2008, 18 July 2008 and 27 August 2008?

(b)If the applicant did commit such failures, did he have a reasonable excuse for all or any of these failures?

(c)Should an 8 week non-payment period be applied to cancel the applicant’s NSA?

legislation

4. Section 593 of the SS Act provides for the criteria for qualification for NSA. It provides relevantly:

“593     Qualification for newstart allowance

(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:

(a) the person satisfies the Secretary that:

(i) throughout the period the person is unemployed; or

...

(b) in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:

(i) satisfies the activity test; or

..”

5.      Section 601 provides for when a person satisfies the activity test, and provides relevantly as follows:

“601     Activity Test

(1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a)      actively seeking; and

(b)      willing to undertake;

paid work in Australia, other than paid work that is unsuitable to be undertaken by that person.

...

(4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is complying with the terms of a Newstart Activity Agreement between the Secretary and the person.

(5) If a person fails to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).”

6.      Section 605 of the SS Act states what a Newstart Activity Agreement is, and provides for when persons are required to enter into such Agreements. It provides relevantly as follows:

“605Newstart Activity Agreements—requirement

(1)Subject to this section, the Secretary may require a person who is not a party to a Newstart Activity Agreement to enter into such an agreement if:

(a) the person is receiving, or has made a claim for, a newstart allowance; or;

...

(4) A Newstart Activity Agreement is a written agreement in a form approved by the Secretary. The agreement is between the person and the Secretary.”

7.      Section 606 provides for the terms that can be included in Newstart Activity Agreements.  It provides relevantly as follows:

“606     Newstart Activity Agreements—terms

(1) Subject to sections 607 to607B, a Newstart Activity Agreement with a person is to require the person to undertake one or more activities that the Secretary regards as suitable for the person.

...

(2) The terms of an agreement, which include the specification of the activities that the person is to be required to undertake, are to be approved by the Secretary.

...”

The section goes on to provide that the Secretary must have regard to the person’s capacity to comply with the proposed Agreement and to the person’s needs, and lists a series of non-inclusive factors that the Secretary is to take into account, such as the person’s education, experience, skills and age, physical or mental condition, the state of the labour market and a number of other relevant considerations.  The section provides that such agreements must not contain certain requirements, but that proscription is not relevant to the present proceedings.  Provision is also made in s 606(5) for the Agreement to be varied by negotiation, suspended or cancelled.

8. Section 624 of the SS Act provides for circumstances in which a person commits a Newstart participation failure. It includes reference to a section in the Social Security (Administration) Act 1999 (“Administration Act”) that is relevant to the present matter, namely s 64(4), whereby persons receiving benefits can be notified that they are required to undertake a specified activity, or to attend at a particular place for a particular purpose. Section 624 also provides for what must be included in the notification. Section 624(1) provides relevantly as follows:

“624     Newstart participation failures

(1)      A person commits a newstart participation failure if the person:

(a)fails to comply with a requirement:

(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii) that was reasonable; and

(iii) the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or

...

(d)fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or

...”

9. Section 624(1) is ameliorated by s 624(2), which provides in effect that a failure of the kind referred to in s 624(1) is not a Newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure. Under s 624(2A), the Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of s 624(2), a person had a reasonable excuse for committing a Newstart participation failure. Under s 624(2B) such a determination does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of s 624(2), a person had a reasonable excuse for committing a Newstart participation failure.

10. The Secretary has made a legislative instrument in accordance with s 624(2A) of the SS Act, namely the Social Security (Reasonable Excuse) (DEWR) Determination 2006 dated 3 February 2006 (“Determination”). Section 4(2) of the Determination lists a number of matters that the Secretary must take into account, and they include “the literacy and language skills of the person, if the person’s lack of such skills is significant” (s 4(2)(b)). Section 4(3) of the Determination provides that the preceding subsections do not apply “unless the Secretary is satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement or the provision of the Act to which the failure or refusal relates”.

11. By virtue of s 629 of the SS Act, NSA is not payable to a person where there are repeated participation failures. This section provides relevantly as follows:

“629     Allowance not payable because of repeated or more serious failure

(1)A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

(a) commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or

...

(2) For the purposes of paragraph (1)(a), disregard any earlier failure that is a failure to which subsection 626(1) does not apply because of subsection 626(2).

(3) Subsection (1) does not apply in relation to the repeated failure if the Secretary is for any other reason satisfied that subsection (1) should not apply to the failure.

…”

12. As appears from s 624(1)(a)(i), which is referred to in paragraph 8 above, a Newstart participation failure is committed if a person fails to comply with a requirement that was notified to him or her under ss 63(2) or 64(2) of the Administration Act. Section 64(2) of the Administration Act is relevant to the present matter. That section provides relevantly, in effect, that if the Secretary is of the opinion that a person receiving certain benefits, including NSA, should attend a particular place for a particular purpose, the Secretary has a discretion to notify the person that he or she is required, within a specified time, to attend that place for that purpose. Under s 64(3), the Secretary may notify a person for the purposes of s 64(2) by sending the notice by prepaid post addressed to the person at his or her last known postal address, but that does not prevent the giving of notice in any other way.

13. Like s 624(1) of the SS Act, s 64 of the Administration Act also includes provision for what must be included in a notification by the Secretary. Section 64(5) provides:

“64       Requirement to undergo medical examination etc.

…       

(5) A notification under subsection (2) must inform the person to whom it is given of the effect of this section.”

14. Under s 64(4), if the requisite notification has been given, the person concerned does not take reasonable steps to comply with the requirement of the notice, and the decision-maker is satisfied that it is reasonable for the section to apply to the person, the payment that the person is receiving is not payable. Section 64(4) provides as follows:

“64       Requirement to undergo medical examination etc.

…       

(4)      If:

(a) the Secretary notifies a person under subsection (2); and

(b) the Secretary is satisfied that it is reasonable for this section to apply to the person; and

(c) the person does not take reasonable steps to comply with the requirement of the notice;

the payment that the person is receiving or has claimed is not payable.”

15. Section 80 of the Administration Act also provides for the cancellation of a social security payment where the Secretary is satisfied that a person is not, or was not, qualified for the payment. It provides as follows:

“80       Cancellation or suspension determination

(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)      who is not, or was not, qualified for the payment; or

(b)      to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.”

background and evidence

16.     Mr Grimes is 29 years of age.  At the time of the hearing he was living in a shed at the rear of his sister’s residence and he described himself as being in good health.  In the Job Capacity Assessment Report (Exhibit A1), he reported suffering from drug dependence, depression and learning disability.  None of these conditions had been fully diagnosed, treated and stabilised.  Under the Activity Agreement (Exhibit R2), he was required to attend and participate in Excel’s stores and warehousing course from 8 July 2008 until 1 August 2008, between the hours of 9:30am and 4:00pm, Monday to Friday.  He was required to notify Jobs Statewide in advance if he was unable to attend the course and to supply evidence for his non-attendance.  Under the Activity Agreement (Exhibit R3), he was required to attend Job club, Mondays, Wednesdays and Fridays from 9:30am to 4:00pm between 30 July 2008 and 30 September 2008. 

17.     Mr Grimes failed to attend the stores and warehousing course on 8 July 2008.  In its report to Centrelink (Exhibit R1, T9 at page 50), Jobs Statewide recorded that he explained he was “doing other training” and could not attend the course.  In Centrelink’s Incident Investigation Summary (“IIS”) (Exhibit R1, T10 at page 55), he was recorded as saying he was unable to attend the course because he was doing “work experience” and would provide evidence “on company letterhead”.  As a result of his failure to attend Excel’s course, Mr Grimes was required to attend a reconnection appointment at Jobs Statewide on 18 July 2008.  He also failed to attend that appointment.  In Centrelink’s IIS (Exhibit R1, T12 at page 63), he was recorded as saying he was unable to attend the reconnection appointment because he was “doing unpaid work experience”.  On 27 August 2008, Mr Grimes failed to attend Job club at Jobs Statewide.  In Centrelink’s IIS (Exhibit R1, T16 at page 82), he was recorded as saying he was unable to attend Job club because “he was unwell” and had “medical certificates at home”.

18.     On 24 July 2008, 29 July 2008 and 16 September 2008 Centrelink applied Newstart participation failures in relation to the breaches that occurred on 8 July 2008, 18 July 2008 and 27 August 2008.

19.     In his evidence, Mr Grimes said that he had attended the stores and warehousing course on 8 July 2008 for five hours, but that “Adam” had told him to leave and come back “when he was settled”.  In relation to the reconnection appointment on 18 July 2008, he said he was unable to attend because he was looking for a job and a house.  He was stressed out and the appointment was “a waste of time”.  He could not recall the Job club appointment on 27 August 2008.  However, if he did not attend, it was because he was stressed out and was looking for a job and a house. 

20.     In cross-examination, Mr Grimes again said he had attended the stores and warehousing course on 8 July 2008.  He then further said he had attended the course on “a couple of days”, but that he had been looking for a house and “Adam” had told him to leave.  He had not been “doing other training”, but was looking for a job.  He had received the letter from Centrelink on 24 July 2008 advising him of his participation failure on 8 July 2008.  However, he had not read the letter fully.  He was not doing work experience and was unable to provide any evidence on company letterhead.  He could not recall discussing the reconnection appointment with a Centrelink officer on 16 July 2008.  With the Job club failure on 27 August 2008, he could not find any medical certificates and did not know where to obtain copies.  When asked whether he had been untruthful in the past in explaining the reasons for his non-attendance at Jobs Statewide, he said that he was being truthful now.  He had had problems, but did not want to talk about them. 

consideration

Did the applicant commit Newstart participation failures on 8 July 2008, 18 July 2008 and 27 August 2008?

21. Mr Grimes acknowledged that he did not attend the reconnection appointment on 18 July 2008. On the evidence, he was not advised of the appointment in writing. However, there is evidence that he had been contacted by a Centrelink officer on 16 July 2008 (Exhibit R1, T7 at page 37) and advised of the appointment for 18 July 2008 at 4:00pm. He was also given a “compliance warning” in accordance with s 624(1)(a)(i) of the SS Act, when read with s 64(3) of the Administration Act. This evidence is consistent with the findings of the SSAT in paragraph 15 of its reasons. He also acknowledged that he did not attend Job club at Jobs Statewide on 27 August 2008.

22.     In relation to his attendance at Excel’s stores and warehousing course on 8 July 2008, Mr Grimes’ evidence before the Tribunal was not consistent with the information he gave to Jobs Statewide and to Centrelink and his evidence before the SSAT.  The report lodged by Jobs Statewide indicated that he had told them he could not attend the course as he was “doing other training”.  The Centrelink IIS stated that he had told Centrelink he did not attend the course because he had been doing work experience on the day.  The information in these reports was consistent with the evidence before, and the findings of, the SSAT.  In his evidence, Mr Grimes said that he had attended the course on 8 July 2008 for five hours and then was advised by “Adam” to leave and come back when he had settled.  Later, he said he had attended the course on a couple of days.  However, the Tribunal noted that, in the course of the giving of his evidence, he became confused and seemed unsure which days (if any) he attended the course.  Having regard to the inconsistencies and the confused state of his evidence, the Tribunal does not accept that he attended the Excel stores and warehousing course on 8 July 2008.  The Tribunal is satisfied Mr Grimes committed the asserted participation failures on 8 July 2008, 18 July 2008 and 27 August 2008.

Did the applicant have a reasonable excuse for the asserted participation failures?

23.     In order for a person to take advantage of legislative provisions affording relief from a participation failure because the person had a reasonable excuse for non-compliance, it is necessary for the person to give a reason or reasons why the failure occurred.  The Tribunal must then consider the excuse put forward by the person, and decide whether it was reasonable.  It should not approach the matter by deciding whether it considers that, in all the circumstances, the person should be excused for the non-compliance: Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988. In that case, Kiefel J said, at [7]:

“... the tribunal was obliged to consider what the respondent said was the reason for his non attendance.  It may be expected that this would involve his state of mind, but I do not think it is correct to frame the statutory inquiry by reference to it. It simply requires a consideration of the excuse put forward.”

24. The Tribunal will now turn to the reasons given by Mr Grimes for the asserted participation failures. In doing so, regard will be given to the provisions contained in the Determination, which are intended to provide a guide to the decision-maker (and, upon review, the Tribunal) in determining whether the applicant had a reasonable excuse for committing the participation failures. To avoid doubt, the Determination does not limit the matters that the decision-maker (and, hence, the Tribunal) may take into account in deciding whether a reasonable excuse exists (see s 624(2B) of the SS Act). The Determination provides that the matters giving rise to a reasonable excuse must have a “significant affect” on the person’s capacity to comply with the requirement to which the failure relates: s 4(3) of the Determination.

25.     Asserted participation failure on 8 July 2008:  Based on the evidence before it, the Tribunal has found that Mr Grimes failed to attend the Excel stores and warehousing course on 8 July 2008.  His reasons, as originally stated, for failing to attend the course were because he was doing other training or work experience on the day.  He also told the SSAT that he was “stressed” at the time.  However, he was unable to produce any evidence of training or work experience, including any evidence “on company letterhead”.  Moreover, there was no medical evidence that he was incapacitated by stress at the time.  Subject to what is said below (in paragraph 28) in considering the application of the Determination, the Tribunal finds that Mr Grimes did not have a reasonable excuse for the asserted participation failure on 8 July 2008.

26.     Asserted participation failure on 18 July 2008:  Mr Grimes said that he failed to attend the reconnection appointment on 18 July 2008 because he was looking for a job and a house.  However, he was unable to produce any evidence in support of his claim.  The Tribunal does not accept that searching for employment and accommodation, without more, was a reasonable excuse for his failure to attend the important reconnection appointment.  Again, subject to what is said below in considering the application of the Determination, the Tribunal finds that Mr Grimes did not have a reasonable excuse for the asserted participation failure on 18 July 2008.

27.     Asserted participation failure on 27 August 2008:  Although he could not recall the Job club appointment on 27 August 2008, Mr Grimes’ evidence was that he would not have attended anyway because he was stressed out and was looking for a job and a house.  Again, he was unable to produce any evidence in support of his claim, including any medical certificates.  Once again, the Tribunal does not accept that searching for employment and housing, without more, constituted a reasonable excuse for failure to attend the Job club.  Again, subject to what is said below in considering the application of the Determination, the Tribunal finds that Mr Grimes did not have a reasonable excuse for the asserted participation failure on 27 August 2008.

28.     Application of the Determination: The Tribunal has considered the provisions of the Determination and the matters to be taken into account in determining if a person had a reasonable excuse, under s 624(2) of the SS Act, for committing a participation failure under s 624(1). The Tribunal notes the “significant effect” qualification in s 4(3) of the Determination and the expansive provisions contained in s 624(2B) of the SS Act. In the Tribunal’s opinion, the only matters in s 4(2) of the Determination that may relevantly be taken into account in determining if Mr Grimes had a reasonable excuse for committing the participation failures on 8 July 2008, 18 July 2008 and 27 August 2008 are:

(a)the literacy and language skills of the applicant, if the applicant’s lack of skills was significant; and

(b)      any drug or alcohol dependency of the applicant.           

29. According to his Job Capacity Assessment Report (Exhibit A1), Mr Grimes had reported a learning disability and drug dependence. In his appearance before the Tribunal, he displayed no significant difficulty with his literacy and language skills. Also, according to the Report, his drug dependence had not been fully diagnosed, treated and stabilised. And there was, additionally, no evidence to suggest that either of these conditions had a significant effect on his capacity to comply with the requirements of s 624(1) of the SS Act. In considering the specific provisions of the Determination, the Tribunal is of the view that Mr Grimes did not have a reasonable excuse for committing the asserted participation failures.

30. In summary, Mr Grimes has not satisfied the Tribunal that he had a reasonable excuse for the asserted participation failures on 8 July 2008, 18 July 2008 and 27 August 2008 that gave rise to the imposition of the non-payment period resulting from those participation failures. In all the circumstances, the Tribunal is not satisfied that those participation failures should not result in the application of s 629(1) of the SS Act, whereby NSA is cancelled and is not payable to Mr Grimes during the 8 week non-payment period. On the contrary, it is appropriate to impose the 8 week non-payment period on account of those participation failures.

decision

31.     The Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         ..........J Coulthard............................................
  Associate

Date of Hearing  16 July 2009
Date of Decision  14 October 2009
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr C Visser
  Centrelink Legal Services & Procurement                 Branch