Karam and Secretary, Department of Social Services (Social services second review)

[2019] AATA 1769

Karam and Secretary, Department of Social Services (Social services second review) [2019] AATA 1769 (9 July 2019)

Division:GENERAL DIVISION

File Number(s):      2018/2962

Re:Bassam Karam

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:9 July 2019

Place:Sydney

The decision under review is set aside, and the matter is remitted to the respondent in accordance with the directions of the tribunal.

.............................[SGD]...........................................

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – cancellation of payment – activity test – whether applicant entitled to relief from activity test – principal carer of at least one child – whether engaged in suitable work for 30 hours per fortnight – decision under review set aside and remitted

LEGISLATION

Social Security Act 1991 (Cth) s 603AB

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

9 July 2019

BACKGROUND

1. The applicant appeals to this tribunal against a decision of the tribunal’s social services & child support division (AAT1) to affirm a decision of the respondent to cancel payment of his newstart allowance from 2 December 2017.

2. The applicant has two daughters aged 18 and 16. The 16 year old is in Year 10. He has been the sole carer for them since 2003 and in that year he gave up his job and went onto a single parent pension.

3. Since 1 January 2013 the applicant has been on and off newstart allowance (until 2 December 2017).

4. In 2014 he worked for another person as a hire car driver, but wanted to be his own boss and became an Uber driver in about 2015. He continues to be an Uber driver to this day.

5. On 20 January 2016, the applicant contacted the Department requesting an exemption from satisfying the activity test requirement because he was the principal carer for his youngest daughter and he was self-employed.

6. There followed a number of months of “to-ing and fro-ing” between the parties mainly over the status of the applicant’s employment.

7. This tribunal is not overly concerned about the various differences of opinion the parties had, nor about the occasional outbursts the applicant had against several officers/contractors/employees of the respondent department.

8. The tribunal has to apply the law to his factual situation.

9. It is relevant that on 9 October 2017 the applicant signed a job plan (see page 101, T-Documents) and on 10 October 2017 advised that he had found work as an Uber driver. The departmental entry at page 102 of the T-documents states: “EC advised JS [job seeker i.e. the applicant] his fortnightly requirements which 30 hrs per fortnight of paid work at $18.90 per hour. As long as JS declare every fortnight he will no long need to attend job search or complete any job search. IF JS fails to meet requirements consistently he will need to finds suitable work”.

10. The departmental entry on 1 December 2017 states (page 104, T-Documents): “JS attended appt. job plan updated and signed”. This was after his newstart allowance had been suspended on 29 November 2017 for failing to attend an appointment with his employment services provider.

11. It was common ground that after signing a new job plan on 1 December 2017, the applicant was booked in for a job search. He was advised (see Secretary’s Statement of Facts and Contentions, para [28]) that he was required to declare his earnings and comply with Centrelink and his employment services provider’s job search requirements.

12. The applicant advised that when following this up the next day (2 December 2017) he was told that his payments would not be reinstated due to his past history of being aggressive and disruptive in the office of his employment services provider (see Secretary’s Statement of Facts and Contentions, para [28]).

13. The respondent contended that as at 1 and 2 December 2017 the reinstatement of the applicant’s newstart allowance was subject to the respondent department’s approval.

14. It would seem from the documentary evidence before the tribunal that the period covered by the plan signed on 9 October 2017 was from 20 September 2017 until 24 May 2018 (see page 112, T-Documents).

15. The updated job plan signed by the applicant on 1 December 2017 was not in evidence before the tribunal.

    THE LAW APPLICABLE TO THE APPLICANT’S CIRCUMSTANCES

16. The law applicable to the applicant can be summarised as follows.

17. Section 603AB of the Social Security Act 1991 (Cth) states that a person who has full-time caring responsibility for at least one child (e.g. like the applicant for his youngest daughter) may be excused from the normal requirements of having to engage in the activity test if they can engage in at least 30 hours of work per fortnight paid at no less than the minimum statutory rate – (i.e. $18.29 per hour, the federal minimum wage in 2017).

18. A self-employed person is not necessarily unemployed, even if they are going backwards and are not earning any money at all. That is classed as a failed business. But, one can be self-employed providing one can show one is working at least 30 hours per fortnight and earning (in 2017) at least a minimum of $18.29 per hour.

19. I note 30 hours at $18.29 per hour amounts to $548.70 which is about the single rate for newstart allowance.

20. The tribunal heard a lot of evidence that the applicant did not put in all the documents he should have. It also noted that he gave a number of documents to Centrelink but not to his job provider.

21. The applicant also did not get on well with at least one of the contact officers supervising his job plan and indeed complained about him. 

22. The tribunal understands all this and places little store with the respondent’s assertion that the applicant was aggressive and rude. However, rules are rules and one does have to supply the documentation that departments require.

23. In this case the applicant could have got his accountant to supply his income tax return to the department. He also could have supplied, as he has now to the tribunal, his Uber statements.

24. Had he done so, the department would at least have been able to come to a decision with the benefit of all the documents it needed.

25. As it was, the applicant was in a catch 22 situation. He was self-employed. The documents he supplied indicated he was not earning anything near $18.29 per hour for 30 hours a fortnight. As well, he could not comply with the required job search obligation because of his carer’s duties and his Uber driving.

26. He did on 9 October 2017 finally agree to a regimen which was reasonable, but then realised he could not complete the activity requirements because of his Uber situation.

27. He did indicate to the tribunal that as at 1 December 2017 he was resigned to having to comply with the job activity requirements, but never got a chance to as a result of his newstart allowance not being reinstated with effect 2 December 2017.

    CONSIDERATION

28. I note the law only stipulates that a person in the applicant’s shoes must be earning at least $18.29 per hour for at least 30 hours work each fortnight.

29. This means that this has to occur every fortnight for the relevant period (which in the applicant’s case would seem in the absence of any evidence to the contrary to cover the period up to and including 24 May 2018). If in any fortnight within that period the applicant earned less than $548.70 and/or did not work at least 30 hours, then he would be in breach and be subject to suspension/cancellation.  

30. In terms of whether the applicant would be able to be exempted on the basis of complying with the above we now have some evidence to assist in so determining that question.

31. Exhibit A1 comprised three total weekly Uber earning statements filed by the applicant. For the period Monday, 5 June 2017 to Saturday, 10 June 2017 a total of $669.08 was earned for 23 hours 8 minutes worked. From Monday, 30 October 2017 to Sunday, 5 November 2017 a total of $1,084.08 was earned for 37 hours 58 minutes worked. And for the period Tuesday, 21 November 2017 to Friday, 24 November 2017 the applicant earned a total of $1,398.29 for 33 hours 58 minutes worked.

32. The two weeks in November recorded more than 30 hours in each week and the income received was higher than that required to be earned as a minimum and, whilst the week in June 2017 was 23 hours 8 minutes the next week only needed to show at the minimum another 6 hours and 52 seconds to reach the necessary 30 hours a fortnight and the income for the stated week was already $669.08 and thus over the required threshold.

33. It is possible to deduce from this that it is quite likely that if the applicant had supplied this material to the relevant areas of the department at the relevant time he may well have qualified to receive the exemption established by section 603AB of the Act.

34. The tribunal accepts it is impossible to say whether he would suddenly be able to satisfy the activity test.

35. Following the second hearing date on 23 November 2018, the applicant supplied new material to the tribunal that indicated that he did indeed seem to satisfy the criteria required for 2017. And indeed did so until the end of 2017, namely until 25 December 2017.

    CONCLUSION

36. Despite the past history, the respondent department was in the tribunal’s view being a little hasty in coming to the conclusion it did on 2 December 2017 to cancel the applicant’s newstart allowance, although the tribunal does note that the applicant was suspended and reinstated several times before and the department’s decision was not illogical. It is just that he had signed up to the job plan and had appeared willing to give it all another go.

37. Having allowed him to sign another job plan this created a not unreasonable assumption that he was back on the system and it might seem a little unreasonable in the circumstance to not give him another go.

38. The tribunal also appreciated the fact that up until then he had not supplied the required documentation to prove his income.

39. I accept that he did not really know what was fully required of him, but is now able to supply what is required and has done so.

40. I also note his early evidence that things are looking up in the Uber business and he may no longer need any assistance. When he appeared several weeks later again before this tribunal however, it did not look so good and he was contemplating just going onto a normal newstart allowance.

41. I am however troubled by the respondent’s decision on 2 December 2017 and I think the fairest and preferable solution and result would be to set the decision of the AAT1 aside and remit the matter to the department for further consideration with the following directions.

42. As the applicant has supplied the tribunal with documentation that clearly qualifies him for newstart from 2 December 2017 until 25 December 2017 inclusive, I direct that he be paid newstart allowance for that period.

43. For him to be paid for the period 26 December 2017 until 24 May 2018 the applicant is to supply the department with his weekly Uber records (such as he supplied to the tribunal in Exhibit A1), and if they satisfy the required criteria of at least 30 hours each fortnight earning at least $18.29 per hour during that fortnight (or such further sum that would reflect any increase in the basic wage during that period) than any newstart allowance that would thus be payable to him for that period be so paid to him.  

44. As the period ends on 24 May 2018 he would then need to re-apply as at that date in the normal manner, or indeed as at some future date depending on his circumstances.

    ORDERS

45. The decision under review is set aside, and the matter is remitted to the respondent in accordance with the above directions of the tribunal.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

.............................[SGD]...........................................

Associate

Dated: 9 July 2019

Date(s) of hearing:	12 October 2018, 23 November 2018
Applicant:	In person
Solicitors for the Respondent:	G Lozynsky, Department of Human Services