JOSEPH BERRY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Case •

[2013] AATA 102

[2013] AATA 102

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/2173

Re

JOSEPH BERRY

APPLICANT

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

RESPONDENT

DECISION

Tribunal

Ms K Hogan, Member

Date 22 February 2013
Place Perth

DECISION SUMMARY

The Tribunal affirms the decision under review.

…(sgd) K Hogan……..
Ms K Hogan, Member

Catchwords

Social Security Law – Newstart Allowance – whether the applicant has made persistent failures in relation to participation failures - connection failures – reconnection failures – breakdown in relationship with job network provider - no reasonable excuse for connection and reconnection failures – decision under review affirmed

Legislation

SocialSecurity Act 1991

Social Security (Administration) Act 1999

Secondary Materials

Social Security (Administration) (Persistent Non-Compliance) (DEEWR) Determination 2009 (No. 1)

Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No 1)

Cases

Secretary, Department of Employment and Workplace Relations and Vatarescu [2007] AATA 1717

Stearman and Secretary, Department of Employment and Workplace Relations [2006] AATA 1046

REASONS FOR DECISION

Ms K Hogan, Member

22 February 2013

HISTORY

  1. The applicant seeks review of a decision of the Social Security Appeals Tribunal (SSAT) dated 10 May 2012.

  2. The SSAT decision affirmed the decision of an Authorised Review Officer (ARO) dated 16 February 2012, which reviewed and affirmed:

    (a)a decision of Centrelink dated 28 November 2011 to apply a serious failure to the applicant’s Newstart Allowance (NA) for his persistent non-compliance with his participation obligations.  This decision was made on the basis of five earlier Centrelink decisions dated:

    (i)16 September 2011, to apply a No Show No Pay failure due to the applicant’s failure to attend an activity on 7 September 2011 which was specified in his Employment Pathway Plan (EPP) - (the first decision);

    (ii)25 October 2011, to apply a No Show No Pay failure due to the applicant’s failure to produce work in an E4 Employment Book on 19 October 2011 - (the second decision);

    (iii)3 November 2011, to apply a connection failure due to the applicant’s failure to enter an EPP on 2 November 2011 - (the third decision);

    (iv)15 November 2011, to apply a connection failure due to the applicant’s failure to attend an appointment with Community First on 9 November 2011 - (the fourth decision); and

    (v)25 November 2011, to apply a connection failure due to the applicant’s failure to comply with participation requirements in his EPP on 24 November 2011 - (the fifth decision).

    (b)three subsequent decisions of Centrelink made after the decision dated 28 November 2011, but before the ARO review, namely:

    (i)a decision dated 20 December 2011, to apply a connection failure due to the applicant’s failure to attend an appointment with Community First on 7 December 2011 - (the sixth decision);

    (ii)a decision dated 4 January 2012, to apply a reconnection failure due to the applicant’s failure to attend an appointment with Community First on 21 December 2011 - (the seventh decision); and

    (iii)a decision dated 30 January 2012, to apply a connection failure due to the applicant’s failure to attend an appointment with Community First on 19 January 2012 - (the eighth decision).

    THE ISSUES

  3. The issues to be considered by the Tribunal are:

    (a)whether the applicant has persistently failed to comply with his obligations in relation to a participation payment (Newstart Allowance);

    (b)if so, whether one or more of those participation failures were outside his control or did they occur intentionally, recklessly or negligently;

    (c)whether the applicant is subject to a suspension of Newstart Allowance for eight weeks;

    (d)whether the applicant committed a connection failure on 7 December 2011 without reasonable excuse;

    (e)whether the applicant committed a reconnection failure on 21 December 2011 without reasonable excuse;

    (f)whether the applicant committed a connection failure on 19 January 2012 without reasonable excuse; and

    (g)whether a failure penalty applies.

    EVIDENCE

  4. The Tribunal was provided with a number of documents including:

    (a)      the section 37 documents;

    (b)     written submissions from the applicant and the respondent.

  5. The Tribunal heard oral submissions on behalf of the parties.

    THE LEGISLATIVE FRAMEWORK

  6. The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

  7. Section 593(1) of the Act provides that a person qualifies for Newstart Allowance if, amongst other things, they are unemployed, the person complies with the requirements of their EPP and they are prepared to enter into another EPP if required to so do.

  8. Subsection 605(2) of the Act provides that:

    If a Newstart Employment Pathway Plan is in force in relation to a person, the Secretary may require the person to enter into another plan instead of the existing one.

  9. Subsection 605(3) of the Act provides that the Secretary is to give a person who is required to enter into a Newstart EPP notice of:

    (a)the requirement; and

    (b)the places and times at which the plan is to be negotiated.

  10. Subsection 595(2) of the Act relevantly states that a person complying with an EPP may be treated as being unemployed.

  11. Division 3A of the Administration Act provides for a person’s compliance with their obligations in relation to participation payments and section 42A of the Administration Act includes Newstart Allowance as a participation payment.

  12. Section 42B of the Administration Act states that one of the objects of division 3A of the Administration Act is to encourage participation in employment and engagement with employment service providers and the other is to secure compliance with a person’s obligations and requirements and to ensure that those who do not comply are re-engaged with employment service providers as soon as possible. This section also provides that penalties are not imposed if the person had a reasonable excuse for failing to comply.

  13. The Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No 1) sets out the matters to be taken into account in determining if a person had a reasonable excuse.

  14. Section 42E of the Administration Act states in part that a person who fails to attend an appointment as required by their EPP commits a connection failure.

  15. Section 42G of the Administration Act requires a letter to be sent to a person who has committed a connection failure, advising them that they may be required to attend a reconnection appointment.

  16. Subsections 42H(1) and 42H(3) of the Administration Act set out that a person who fails to meet a reconnection requirement without a reasonable excuse commits a reconnection failure.

  17. Section 42M of the Administration Act provides that a person commits a serious failure if they persistently fail to comply with their obligations. The Social Security (Administration) (Persistent Non-Compliance) (DEEWR) Determination 2009 (No. 1) sets out the matters to be taken into account in determining persistent non-compliance for the purpose of section 42M.

  18. Section 42UA of the Administration Act provides that an excuse cannot be a reasonable excuse unless it was provided prior to the person’s non-compliance or the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give notification.

  19. Section 42NA of the Administration Act requires a person to undertake a Comprehensive Compliance Assessment (CCA) to assess the person’s reasons for committing the failures, their barriers to employment, if any, and whether their participation requirements are appropriate.

  20. Section 42P of the Administration Act provides that the Newstart Allowance is not payable for a period of eight weeks if a serious failure is applied.

  21. Section 42Q of the Administration Act states that serious failure period may be ended if the person begins to comply with the serious failure requirement imposed on them or the person does not have the capacity to undertake any serious failure requirement and serving the period would result in severe financial hardship.

  22. Section 42D of the Administration Act provides that if the Secretary determines that a person connects a no-show, no pay failure, the person’s penalty amount for the no-show, no payment failure is to be deducted from the person’s installment of a participation payment for the installment period determined under subsection 42C(5).

  23. Section 42L of the Administration Act provides that if the Secretary determines that a person commits a reconnection failure, the person’s penalty amount for the reconnection failure is to be deducted from the person’s installment of a participation payment for the installment period determined under subsection 42H(5).

  24. Subsection 42T(1) of the Administration Act provides that the Minister must, by legislative instrument, determine a method for working out a person’s penalty amount for a no-show, no pay failure or a reconnection failure.

    APPLICANT

  25. The applicant relied upon his Statement of Facts and Contentions and sought review of the SSAT decision on the basis, inter alia, that:

    (a)the appeal was based on the Centrelink decisions of 26 October and 3 November 2011;

    (b)the connection failure of 2 November 2011 was based on an incorrect claim that the applicant was “given options many times” and that he “refused to do any other activity”;

    (c)there was no evidence that the proposed cancellation of his distance exemption was ever written into an EPP;

    (d)the JSA report of 19 October 2011 was “convoluted with a personal attack and had nothing to do with what had taken place during the respective appointment” [applicant’s SOFIC 1.10];

    (e)Following the receipt of the JSA report of 19 October 2011, the applicant told the JSA that any further contact was out of the question;

    (f)The request by the applicant directed to DEEWR to transfer him to another agency was ignored;

    (g)“Mendacious JSA reports” were filed in support of a succession of “failures”;

    (h)The reasonable excuse clauses of the Administration Act do not correspond to the circumstances of the failures of 19 October 2011 and 2 November 2011;

    (i)The EPP cannot compel academic testing and the applicant considered that the booklet he was required to complete was compelling academic testing.

  26. The applicant considered that the participation failures were based on enforcing an unauthorised questionnaire and that the decisions corresponding to the other failures were unsustainable.

    RESPONDENT

  27. The respondent relied upon its Statement of Facts Issues and Contentions.

  28. The respondent contended that the applicant signed an EPP on 10 August 2011 (T4), which required the applicant to relevantly:

    (a)complete an E4 Employment Book provided by Community First and produce evidence once a month that he was completing the booklet from 10 August 2011 to 10 November 2011;

    (b)attend fortnightly meetings with Community First to discuss his job seeking progress and to review his EPP if required;

    (c)attend and fully participate in job search skills activities with Community First International from 10 August 2011 to 10 February 2012 on Wednesdays between 9.00am and 12.00pm.

  29. The applicant signed the EPP which also stated “if I fail to complete this (the E4 Employment Book) I am aware that this may affect my CL benefits and that I understand that if I fail to or notify of my non-attendance this may result in my CL benefits being stopped”.

  30. The respondent contended that it was appropriate to apply a serious failure to the applicant’s Newstart Allowance on 28 November 2011 and impose an eight week non-payment period under s 42M of the Administration Act as the applicant had persistently failed to comply with his obligations and had committed failures on 7 September 2011, 19 October 2011, 2 November 2011, 9 November 2011 and 24 November 2011.

  31. In relation to the first decision - No Show No Pay 7 September 2011 - the respondent contended that the applicant failed to attend Community First as required by his EPP.

  32. In relation to the second decision - No Show No Pay failure 19 October 2011 - the respondent contended that the applicant failed to attend to an activity specified in his EPP with respect to completion of his E4 Employment Book.  The respondent contended that the applicant had not produced any work in this book and he did not have a reasonable excuse for his actions and had not met one of the conditions for receiving payment of Newstart Allowance.

  33. In relation to the third decision - 2 November 2011 - the respondent contended that on 2 November 2011, the applicant failed to enter into or vary an EPP when asked to so do.  The respondent contended that the applicant did not have a reasonable excuse for his actions and had not met one of the conditions of receiving payment of Newstart Allowance.

  34. In relation to the fourth decision - 9 November 2011 - the Respondent contended that on 9 November 2011 the applicant failed to attend Community First as required by his EPP.  The respondent contended that the applicant did not have a reasonable excuse for his actions and had not met one of the conditions for receiving payment of Newstart Allowance.

  35. In relation to the fifth decision - On 24 November 2011,- the applicant attended an appointment with Community First to discuss his EPP, however the meeting did not result in a new EPP being agreed.

  36. In relation to the sixth decision - 7 December 2011 - the respondent contended that the applicant failed to attend Community First on 7 December 2011 as required by his EPP, the respondent further contended that the applicant did not have a reasonable excuse for his actions and had not met one of the conditions for receiving payment of Newstart Allowance.

  37. In relation to the seventh decision - reconnection failure 21 December 2011 - the respondent contended that the applicant failed to attend Community First as required by his EPP.  The applicant was notified of the requirement to attend this appointment by letter dated 8 December 2011. 

  38. In relation to the eighth decision - connection failure 19 January 2012 - the respondent contended that as the applicant failed to attend an appointment with Community First on 19 January 2012, it was appropriate to find a connection failure to have been committed and the respondent contended that there was no reasonable excuse for the applicant’s actions and that he had not met one of his conditions for receiving payment of Newstart Allowance.

  39. The respondent contended that a connection failure was committed on 7 December 2011 for the purpose of 42E of the Administration Act; a reconnection failure was committed on 21 December 2011, for the purpose of 42H of the Administration Act; a connection failure was committed on 19 January 2012, for the purpose of section 42E of the Administration Act and that the applicant did not have a reasonable excuse for his actions.

    CONSIDERATION OF THE ISSUES

  40. The Tribunal considered whether the applicant had a reasonable excuse for failing to comply with the respondent’s requirements.

  41. It is clear from the content of the T documents and the evidence given by the applicant that there was a significant breakdown in the relationship between the applicant and Community First.

  42. The conduct of Community First and the dissatisfaction the applicant felt with them, is not a matter for this Tribunal to determine other than the extent that it relates to whether or not the applicant had a reasonable excuse for the failures.

  43. The Tribunal gave consideration to whether a person who has been required under the Act by the respondent to attend an appointment with a job network provider is entitled to say that he has a reasonable excuse for those failures because he is dissatisfied with that provider.

  44. In Secretary, Department of Employment and Workplace Relations and Vatarescu [2007] AATA 1717, the Tribunal observed [para 15] "if he is not happy with the manner in which his complaints were dealt with or addressed", that was a matter for the applicant to take up with the respondent or other appropriate authorities. The Tribunal concluded that issues of that character did not render unreasonable the requirements set out, in that case.

  45. In the AAT Decision of Stearman and Secretary, Department of Employment and Workplace Relations [2006] AATA 1046, the member found that “a high level of dissatisfaction with the quality of the service” of a job network provider was not relevant in an examination of whether reasonable steps had been taken to comply with the activity agreement under the previous provisions of subsection 601(6) of the Act.

  46. The Tribunal is sympathetic to the applicant in the failure of the Community First provider to deal with his complaints.

  47. Notwithstanding that, it seems to the Tribunal that the requirement for the applicant to attend the interviews is reasonable. 

  48. The Tribunal finds that the respondent was also entitled under the terms of section 605(2) of the Act to require the applicant to enter into another agreement. The subsection does not include any requirement of reasonableness.

  49. It was conceded on behalf of the applicant that the failure to attend on 7 September 2011 was due to the fact that he had no car and no public transport or a lift was available to him.  He did not dispute the failure of 7 September 2011, although it was clear that he did not appreciate that it was a relevant consideration from the respondent’s point of view.

  50. In accordance with legislative requirements, Centrelink conducted a Comprehensive Compliance Assessment (CCA) on 25 November 2011, prior to applying the serious failure.

  51. The participation compliance workflow summaries show that the applicant failed to:

    (a)attend an activity specified in his EPP on 19 October 2011;

    (b)enter an EPP with Community First on 2 November 2011;

    (c)attend an appointment with Community First on 9 November 2011; and

    (d)comply with his participation requirements in his EPP on 24 November 2011.

  52. The Tribunal does not concur with the applicant’s interpretation of the Social Security legislation that Centrelink was not permitted to require him to complete a questionnaire or undergo a psychological examination and completion of the E4 Employment Booklet and that therefore the decisions under review were flawed due to a lack of a legislative basis.

  53. The Tribunal found that:

    (a)the applicant was in receipt of Newstart Allowance when he entered into an EPP on 10 August 2011 which included compulsory requirements;

    (b)on 7 September 2011, 19 October 2011, 2, 9 and 24 November 2011, the applicant failed to comply with the compulsory requirements contained in the EPP in that he failed to attend job search activities on 7 September 2011, failed to produce work in the E4 Employment Booklet on 19 October 2011, failed to attend an appointment on 9 November 2011, failed to enter into an EPP on 2 November 2011 and failed to comply with participation requirements on 24 November 2011;

    (c)the applicant was in receipt of Newstart Allowance in the period during which these failures occurred;

    (d)there are no barriers which significantly impacted on his capacity to comply with the participation requirements and that the participation requirements were appropriate and that the failures did not occur to facts outside his control.

  54. The Tribunal does not accept the applicant’s explanations for the failures and finds that the applicant intentionally failed to comply with the requirements and therefore the Tribunal decides that the applicant committed a serious failure under section 42M of the Administration Act.

  1. The Tribunal finds that the applicant failed to attend an appointment on 7 December 2011 and failed to attend an appointment on 19 January 2012 and that he failed to comply with the compulsory requirements contained in the EPP in that he failed to attend the appointments.

  2. The Tribunal finds that the applicant was in receipt of Newstart Allowance in the period during which these failures occurred.  The Tribunal finds that there are no barriers which significantly impact on his capacity to comply with the participation requirements and that the participation requirements were appropriate and that the failure to comply did not occur due to factors outside the control of the applicant.

  3. The Tribunal is not satisfied that the applicant had a reasonable excuse for the failures and therefore decides that connection and reconnection failures have been correctly applied.

    DECISION

  4. The Tribunal affirms the decision under review.

I certify that the preceding 58             (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member .

...(sgd) T Freeman................

Associate

Dated       22 February 2013

Date of hearing 23 November 2012
Advocate for the applicant

Ms Berry
Advocate for the respondent Ms Gallagher

Solicitors for the respondent              Sparke Helmore

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