Jensen and Secretary, Department of Family and Community Services
[2005] AATA 685
•19 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 685
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/552
GENERAL ADMINISTRATION DIVISION ) Re DAVID JENSEN Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date19 July 2005
PlaceSydney
Decision The reviewable decision of the Social Security Appeals Tribunal made on 1 April 2004 is affirmed. [sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – Newstart Activity Agreement – Requirement of Newstart allowance regarding Newstart Activity Agreements – Reasonableness of requiring Applicant to attend Centrelink Offices – Obligations of recipients of Newstart allowance - decision affirmed.
LEGISLATION
Social Security (Administration) Act 1999 section 63
Social Security Act 1991, sections 601, 604, 605, 606 and 607CASELAW
Mifsud and the Secretary of the Department of Social Security, 1991 AAT 7545, 4 December 1991
REASONS FOR DECISION
19 July 2005 Senior Member, Mrs Josephine Kelly
Background
1. Mr Jensen was born on 18 August 1970 and is currently 35 yeas of age. Mr Jensen is seeking review of a decision of the Social Security Appeals Tribunal of 1 April 2004 which affirmed the decisions to suspend and later cancel Mr Jensen’s Newstart allowance (“NSA”) as of 28 October 2003.
Issues
2. The issue in this proceedings are:
· Whether Centrelink’s decision to suspend and subsequently cancel the Applicant’s NSA from the 28 October 2003 was correct.
· Whether the requirement that the Applicant attend the appointment at the Bondi Junction Office of Centrelink on 30 October 2003 for the purposes of entering into a Newstart Activity Agreement was reasonable.
The Law
3. Section 63 of the SocialSecurity (Administration) Act 1999 (“the SSA Act”) sets out the powers of the Secretary to require a person to attend a Centrelink office if the requirement is reasonable, and the consequences resulting from not complying with that requirement. Section 63 states relevantly:
Requirement to attend Department etc.
1) This section applies to a person if:
(a) either:
(i) the person is receiving, or has made a claim for, a social security payment; or
…
(3)If the Secretary is of the opinion that a person to whom this subsection applies should:
(a) attend an office of the Department; or
(b) contact the Department; or
(c) attend a particular place for a particular purpose; or
(d) give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to:
(e) attend that office; or
(f) contact the Department; or
(g) attend that place for that purpose; or
(h) give that information;
as the case may be.
(3A) Subsection (3) applies to a person:
(a) who is receiving, or has made a claim for, newstart allowance; or
…
5) If:
(a) the Secretary notifies a person under subsection (3) of a requirement; and
(b) the requirement is reasonable; and
(c) the person does not comply with the requirement;
then:
(d) newstart allowance or special benefit is not payable to the person; and
(e) an administrative breach rate reduction period applies to the person if:
(i) the person meets the conditions in subsection (5A) at the time of the non-compliance and newstart allowance later becomes payable to the person; …
4. Section 604 of the Social Security Act (“the Act”) refers to Newstart Activity Agreements and states relevantly:
(1) [….] if a person is in receipt of a newstart allowance, the Secretary may require the person to enter into a Newstart Activity Agreement.
604(1B) The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:
(a) the requirement; and
(b) the places and times at which the agreement is to be negotiated.
604(1C) A Newstart Activity Agreement is a written agreement in a form approved by the Secretary and the Employment Secretary. The agreement is between the person and the Secretary.
5. Section 605 of the Act establishes the Secretary’s powers in relation to recipient of NSA being required to complete a Newstart Activity Agreement. s 605 relevantly states:
Newstart Activity Agreements—requirement
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.
605(2) Subject to this section, the Secretary may require a person who has entered into a Newstart Activity Agreement to enter into another such agreement instead of the existing one.
…
605(3) The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:
(a) the requirement; and
(b) the places and times at which the agreement is to be negotiated.
6. Section 606 relevantly sets out the terms of Newstart Activity Agreement.
Newstart Activity Agreements—terms
606(1) A Newstart Activity Agreement with a person is to require the person to undertake one or more of the following activities approved by the Secretary:
(a) a job search;
(b) a vocational training course;
(c) training that would help in searching for work;
(d) paid work experience;
(e) measures designed to eliminate or reduce any disadvantage the person has in the labour market;
(ea) subject to section 607A, development of self-employment;
(eb) subject to section 607B, development of and/or participation in group enterprises or co-operative enterprises;
(ec) an approved program of work for income support payment;
(f) participation in a labour market program;
(fa) participation in a rehabilitation program;
(fb) participation in the PSP;
(g) another activity that the Secretary regards as suitable for the person and that is agreed to between the person and the Secretary.
…
606(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.
606(3) In considering whether to approve the terms of an agreement with a person, the Secretary is to have regard to the person's capacity to comply with the proposed agreement and the person's needs.
606(4) In having regard to a person's capacity to comply with an agreement, the Secretary is to take into account, but is not limited to the following matters:
(a) the person's education, experience, skills, age, disability, illness, mental and physical condition; and
(b) the state of the local labour market and the transport options available to the person in accessing that market; and
(c) the participation opportunities available to the person; and
(d) the family and caring responsibilities of the person; and
(e) the length of travel time required for compliance with the agreement, by reference to what constitutes unreasonably difficult commuting for the purposes of paragraph 601(2A)(g); and
(f) the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and
(g) any other matters that the Secretary or the person considers relevant in the circumstances.
606(5) An agreement with a person:
(a) may be varied (in negotiation with the person) or suspended; and
(b) if another Newstart Activity Agreement is made with the person, may be cancelled; and
(c) may be reviewed from time to time at the request of either party to the agreement; and
(d) may be cancelled by the Secretary after a review under paragraph (c).
606(5A) Within 14 days of the terms of the agreement being approved, those terms may be varied by the person with the approval of the Secretary.
606(5B) The Secretary must advise the person in writing of the effect of subsection (5A).
606(5C) To avoid doubt, subsection (5A) does not prevent the person at any time from requesting a review of an agreement under paragraph (5)(c).
606(6) An allowee who is a party to an agreement is to notify the Secretary of any circumstances preventing or affecting the allowee's compliance with the agreement.
7. Section 607 of the Act sets out the consequences if the recipient of NSA fails to negotiate into a Newstart Activity Agreements. It provides:
Newstart Activity Agreements—failure to negotiate
607(1) If:
(a) a person has been given notice under subsection 605(3) of a requirement to enter into a Newstart Activity Agreement; and
(b) because the person did not:
(i) attend the negotiation of the agreement; or
(ii) respond to correspondence about the agreement; or
(iii) agree to the reasonable terms of the agreement proposed by the Secretary;
or for any other reason, the Secretary is satisfied that the person is unreasonably delaying entering into the agreement;
then:
(c) the Secretary may give the person notice that the person is being taken to have failed to enter the agreement; and
(d) if the notice is given—the person is taken to have so failed.
Note: refusal to enter a Newstart Activity Agreement disqualifies a person for newstart allowance—see paragraph 593(e).
607(2) A notice under paragraph (1)(c) must:
(a) be in writing; and
(b) set out the reasons for the decision to give the notice; and
(c)include a statement describing the rights of the person to apply for the review of the decision.
Facts found on the evidence
8. The evidence before me included the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), the Respondent’s statement of facts and contentions (Exhibit R1), the Applicant’s statement of facts and contentions (Exhibit A1) and an affidavit of Mr Jensen sworn 20 April 2005 (Exhibit A2). Mr Jeff Paris, Mr David Perry from the Centrelink Office at Bondi Junction provided oral evidence. Following are my findings of fact.
9. Mr Jensen has been receiving NSA since 1992.
10. On 13 October 2003 (T7), Centrelink issued Mr Jensen with Employer Contact Certificates (“ECC’s”). ECC’s are documents to be filled in by potential employers to verify that a jobseeker is in fact searching for work. It is a requirement that a person in receipt of Newstart satisfies the ‘activity test’ which is contained in s 601 of the Act. The activity test is satisfied if the recipient is actively looking for paid work which is why ECC’s can be sent to recipients of NSA.
11. A letter that was prepared by Mr Luckman on Mr Jensen’s behalf dated 3 November 2003 (T23) claimed that the notification regarding the ECCs was “derivative of: a) premises; b) format and c) procedural processes, which are unconscionable, illegal and contrary to law”. The letter was signed by both Mr Luckman and Mr Jensen. There is no evidence that Mr Jensen completed any ECC’s.
12. All of the letters from Mr Jensen to Centrelink have been signed by Mr Jensen’s representative, Mr Luckman, and sometimes by Mr Jensen as well. All letters, whether signed by Mr Jensen or not, appear to be written by Mr Luckman expressing Mr Jensen’s views.
13. Centrelink made an appointment for Mr Jensen to see an occupational psychologist on 15 October 2003 in order to assess any barriers preventing him from re-entering the workforce. The letter notifying him of this appointment was not in evidence although Centrelink file notes make reference to the appointment (T6 and T8), as does a letter from Mr Luckman, which acknowledges a reminder notice sent on 8 October 2003 (T9).
14. This letter objected to the appointment with the occupational psychologist and stated that Mr Jensen will not be attending at the “unilaterally determined time and place”. It was delivered to the Bondi Junction Centrelink office on 15 October 2003, the date of the appointment, by a man who left directly after delivering the letter at the reception counter (T10).
15. While the identity of the man delivering the letters is not certain, it is believed by Mr Paris, the Centrelink Officer at Bondi Junction , that the man was Mr Jensen. This was not the only piece of correspondence delivered in this manner.
16. Following Mr Jensen’s failure to attend the appointment with the occupational psychologist, an appointment was made for him to attend the Bondi Junction Centrelink office on 30 October 2003 to negotiate a Preparing for Work Agreement. On 17 October 2003, a letter was sent to Mr Jensen notifying him of that appointment (T14). That letter referred to “a recently completed Approved Activity or Program.
17. A further letter from Mr Luckman (T19) was received on the day of the interview stating that Mr Jensen would not be attending any interview until certain issues raised in a letter of 27 October 2003 were resolved. The letter also makes reference to the “exordiun [spelling from original] to [Centrelink’s] extensive exhortatory and requisitioning missive” and states that until certain issues are clarified regarding it, Mr Jensen will not be attending any interview. That included that any recently Approved Activity or Program “is not known to me”. The letter of 27 October 2003 was not in evidence before the Tribunal. As a result of Mr Jensen’s failure to attend the interview on 30 October 2003, his NSA was suspended as of 30 October 2003 (T20 and T22).
18. In October 2003 a Centrelink computer check raised the issue of Mr Jensen’s residential address, as the only address on file was the P.O. Box address. This postal address was where all correspondence was sent and as stated in Mr Jensen’s affidavit exhibit A2, the mail was collected by his representative Mr Luckman and then passed on to him.
19. On 17 October 2003 a determination was made to cancel Mr Jensen’s NSA because his home address was not on the system (T11) and a letter (T15) was sent on that day by Centrelink informing him that his payment had been cancelled as of 14 October 2003 as they were unable to contact him at the address that he gave. On 24 October 2003 (T16) a further letter was written to Mr Jensen enquiring about his residential address. Mr Jensen in his affidavit, Exhibit A2 states that “At no time, prior to the Social Security Appeals Tribunal Proceedings, on 1st April 2004, was the said letter submitted or tendered to me.”
20. Mr Perry in oral evidence suggested that the records show that that decision was rescinded and that Mr Jensen would have been aware that his payments had not been cancelled as the money for the fortnight beginning 14 October had been placed in his bank account. Before the Tribunal there was no evidence of Mr Jensen’s bank records indicating that the money had been paid into his account and also no correspondence to Mr Jensen advising him that the decision to stop his payments because his residential address was not known had been rescinded. This issue of cancellation because of the lack of a residential address does not relate to the decision I am reviewing. However this correspondence would have contributed to the apparent irritation if not anger Mr Jensen and/or Mr Luckman were feeling towards Centrelink in October 2003.
21. Returning to the failure to attend the 30 October interview, Mr Paris replied to the letter T19 in a letter dated 5 November 2003 (T24). Mr Paris responded that the letter (T14) “is a generic one sent to all customers who are due to inform us of their current circumstances so a reasonable activity agreement can be negotiated”. The letter included sections of the Social Security (Administration) Act 1999 that are relevant to negotiation of activity agreements. Mr Paris also invited Mr Jensen to go the office to discuss his circumstances and also to “phone us” if he wanted to discuss “this letter”. A letter in response to this dated 4 December 2003 (T34) seizes upon the word “generic” and proceeds to equate it with the words “misleading” and “deceptive” as they are used in the Trade Practices Act 1974, concluding that Centrelink pursues “questionable practices that may be considered fraudulent or at best unethical”.
22. In his affidavit, Mr Jensen acknowledges that he received a notice of suspension on 5 November 2003. He believed that the reason for the suspension of the NSA was his failure to contact the Centrelink office. Mr Jensen stated that he did contact the Centrelink Office on 24 and 30 October 2003 through written correspondence. He also explains that “in the company Mr Luckman the relevant letters were hand delivered to the Centrelink at Bondi Junction Office.”
23. On 10 November 2003, Mr Jensen lodged several payment continuation forms (SU19s) at the Redfern Centrelink office (T28). They were not processed because Mr Jensen’s payment was still suspended. When he attended the Centrelink office at Redfern, Mr Jensen was told to see Bondi Junction Centrelink office to get his payment restored at which point his forms would be processed. He has apparently attended no Centrelink office since then.
24. His NSA was cancelled on 25 November 2003 (T32).
25. A request was made on 7 November 2003 to have the matter considered by an Authorised Review Officer (ARO) that had not been previously involved with Mr Jensen (T26). The matter was given to Ron Crawford, an ARO with Centrelink. Mr Crawford sought input from Mr Jensen which consisted of another letter signed by Mr Luckman complaining of “Centrelink’s copious, contradictory and punitive communications” and their “continued disregard, negligence and even rude rejections of the common courtesies of acknowledging my missives” (T33). On 1 December 2003 the ARO affirmed the decisions of Centrelink to suspend and then cancel Mr Jensen’s NSA allowance (T37).
26. The decision of Mr Crawford was the subject of an application to the Social Security Appeals Tribunal (SSAT). The SSAT handed down its decision on 1 April 2004 and affirmed the decisions.
Consideration
27. The key issue in this matter is was it reasonable for the Secretary to require Mr Jensen to attend the Centrelink office on 30 October 2003 to discuss the Newstart Activity Agreements.
28. In Mifsud and the Secretary of the Department of Social Security, 1991 AAT 7545, 4 December 1991, the Tribunal stated when discussing the concept of reasonableness to attend an office that “it is clearly related to a policy of encouraging persons in receipt of unemployment benefit to seek and obtain employment, in the interests of the person in question, the public purse and the community generally” at paragraph 23.
29. Prima facie it was reasonable for the Secretary to require Mr Jensen to attend the Centrelink office pursuant to the legislation. It is necessary to examine the reasons that were provided for not attending the office. In T19 the reason given was the “recent completed activity or program, is not known to me” and clarification was requested. The clarification was provided in T24 dated 5 November 2003 as discussed. It clearly stated that “if you would like to talk about this letter please phone us on the number at the top of the letter.” I do not know when Mr Jensen received that letter. He attended the Redfern office on 10 November to lodge the SU19 forms but did not raise the matter and has had not further contact by telephone or personally with Centrelink.
30. Mr Jensen in T25 sets out the reason that he did not attend the interview was that he handed a letter to Centrelink dated 29 October 2003 (T19) on 30 October 2003 (T26) and that the “Suspension of my Newstart Allowance for not responding to a request to contact Centrelink is impetuous, unscrupulous and contrary to law.”
31. A request on 6 November 2005 is made by Mr Luckman at T25 for the matter to be placed under review by an ARO.
32. Although there has been correspondence between Centrelink and Mr Jensen and Mr Luckman, his representative, there has been a most unfortunate failure to communicate to Mr Jensen and Mr Luckman. The simple message from Centrelink is that Mr Jensen has obligations that he has to satisfy under the law in order to receive NSA or any other social security payment. He and his representative have not appreciated those obligations. Consequently, Mr Jensen has not been receiving NSA or any other benefit since November 2003, which is a matter of great concern. It may be that the requirements of which Mr Jensen was advised in October 2003 had not been known to him before.
33. He received five letters from Centrelink during that month, one of which required him to see an occupational psychologist and another to attend a Bondi Junction Centrelink office others related to ECCs and an activity agreement. He had been on NSA since 1992 and may have been used to lodging the SU19s and receiving his benefit with no further obligations and been upset by so much correspondence with diverse subjects.
34. As I understand the evidence of Mr Paris and Mr Perry the requirement for enter into a Newstart Activity Agreement, was introduced in 2001 but was not immediately applied to all recipients. It seems that in about October 2003, automatic computer checks were raising queries about Mr Jensen’s circumstances, including his residential address, whether there were barriers to his seeking/obtaining employment, ECCs and an activity agreement. It seems that Mr Jensen and Mr Luckman reacted to the new and numerous requests from Centrelink defensively, rather than doing what Centrelink asked or ringing up or visiting a Centrelink office to discuss with an officer what the concerns were, which was suggested in Mr Paris’s letter of 5 November 2003.
35. This matter could have been resolved at any time since November 2003 by Mr Jensen’s attending the Bondi Centrelink Office or any other Centrelink office and discussing what he has to do to have his NSA reinstated or to receive any other benefit to which he might be entitled. He must understand that he has obligations to satisfy under the legislation if he wishes to receive NSA or any other benefit, and those obligations must be explained to him. In my view, Mr Paris’s letter of 5 November 2003 set out simply what was required of Mr Jensen and how he could clarify his obligations.
36. I urge Mr Jensen to bring this unfortunate and unnecessary situation to an end by attending a Centrelink office and discussing his circumstances with a Centrelink officer, or if that is not possible to ring up. I urge Centrelink to ensure that their computer records flag that it is of paramount importance for an officer to address compassionately his circumstances when Mr Jensen does attend or ring up, and to clarify his obligations, and not to fob him off to another time.
37. The request for him to attend the interview was reasonable and while Mr Jensen may have been upset by the various requests and queries made of him in October 2003, that did not excuse his non-attendance at the interview and his subsequent failure to take the step of discussing whatever concerns he may have with Centrelink. As a recipient of NSA, he has an obligation to attend the Centrelink offices when requested, or at some other time when agreed between himself and Centrelink.
Decision
38. The reviewable decision of the Social Security Appeals Tribunal on 1 April 2004 is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 24 June 2005
Date of Decision July 2005
Advocate for the Respondent James Larcombe
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