Khouzame; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 175

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] aata 175

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2385

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And TALEEH KHOUZAME

Respondent

DECISION

Tribunal Rear Admiral AR. Horton AO, Member

Date29 February 2008

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal of 2 May 2007 is set aside and in substitution therefor the Tribunal decides that the payment of newstart allowance to Mr Taleeh Khouzame is to commence from 9 February 2007.

...................[sgd]...........................

Rear Admiral A. Horton AO, Member

CATCHWORDS

SOCIAL SECURITY - claim for newstart allowance – failure to attend Job Network interview - finalisation of newstart claim delayed – applicant subsequently claimed allowance to original lodgement date – claim denied – decision set aside by Social Security Appeals Tribunal – decision appealed by respondent – decision of Social Security Appeals Tribunal set aside – original decision as to newstart allowance start date reinstated.

Administrative Appeals Tribunal Act 1975 – section 40
Social Security Act 1991 – section 615
Social Security (Administration) Act – section 64
Guide to Social Security Law – Part 3.2.1.40

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

REASONS FOR DECISION

29 February 2008 Rear Admiral A. Horton      

1.      On 3 January 2007, Mr Taleeh Khouzame contacted the Bankstown office of Centrelink seeking newstart allowance, his last employment being in August 2006. To meet the conditions for the granting of that allowance, Mr Khouzame was required to attend an appointment with a Job Network Member (“JNM”) (Work Directions) and to provide certain documentation. Mr Khouzame again attended Centrelink on 22 January 2007, the above requirements for a JNM interview and documentation again being relevant. Whilst some documentation was provided by him on 30 January 2007, he did not attend the JNM interview until 9 February 2007 and his newstart allowance was granted from that date.

2.      Mr Khouzame subsequently sought review of that decision, on the basis that he was not made aware of the interview requirement, and hence an earlier start date was appropriate. The original decision was affirmed by a delegate of Centrelink and subsequently affirmed on 26 March 2007 by an Authorised Review Officer (“ARO”). On 2 May 2007, the Social Security Appeals Tribunal (“SSAT”) set aside the original decision, finding that “Mr Khouzame was not advised of the requirement to attend Work Directions on either 4 January 2007 or 24 January 2007 at any time prior to these dates, if at all”, the decision being that he was not required under section 615 of the Social Security Act 1991 (“the Act”) to attend an interview. Thus Mr Khouzame was to be paid newstart allowance from 3 January 2007, subject to him meeting any other newstart allowance criteria.

3.      The Secretary, Department of Education, Employment and Workplace Relations (“DEEWR”) (“the Applicant”) has appealed that decision to this Tribunal. On 23 August 2007, a “stay” was granted on the outstanding shortfall in payment of $1112.37, as found by the SSAT, pending review by this Tribunal. Mr Khouzame did not attend two pre-hearing conferences, advising the Tribunal by telephone that he did not wish to attend any subsequent hearing, nor pursue the matter. He confirmed his position to Tribunal staff prior to the hearing scheduled for 8 February 2008, observing that he was employed and did not wish to proceed. Having satisfied myself that Mr Khouzame had received proper written advice as to the date of hearing, and in the light of his telephoned advice, I proceeded to hear the matter in his absence pursuant to the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) subsection 40(1)(b).

4. Ms Sharma appeared for the Applicant. Documents pursuant to Section 37 of the AAT Act were taken into evidence (“the T docs”) as were the Applicant’s Statement of Facts and Contentions dated 28 September 2007 (Exhibit A1) and attachments (Exhibits A2 to A4), and a printout of the conditions of Rapid Connect Workforce (Exhibit A5).

ISSUES

5.    The issues in this matter are:

1.whether Job Network interviews had been arranged in accordance with the relevant legislation and guidelines;

2.if so, whether Mr Khouzame had been properly advised in accordance with the relevant legislation of a requirement to attend such Job Network interview(s); and

3.Whether newstart allowance was payable to Mr Khouzame prior to 9 February 2007.

LEGISLATION

6.      Section 615 of the Act relevantly states that newstart allowance is not payable if after contacting the Department, a person fails to attend a “required” interview with a specified person or organization at a specified time and place.

7.      Section 64 of the Social Security (Administration) Act 1999 (“the Admin Act”), as well as defining the circumstances under which a person may be “required” to attend an interview (subsection (2)), states at subsection (3) that “[T]he Secretary may notify a person for the purposes of subsection (2) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary. This subsection does not prevent the Secretary from giving the person notice in any other way”.

8.      Subsection (4) of section 64 requires that subject to the application of subsection (2) to a person being reasonable, if reasonable steps to comply with the requirements of the notice have not been taken, the payment is not payable. Subsection (5) requires that a notification under subsection (2) “must inform the person to whom it is given of the effect of this section”.

9.      The Guide to Social Security Law (“the Guide”) provides Departmental policy to assist in the administration of the relevant legislation. According to the Full Court decision in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, such policy may be applied by the Tribunal to decisions under review. At Part 3.2.1.40 of the Guide, the purpose of Rapid Connect is defined, whereby “unemployed people claiming income support are assisted to rejoin the workforce quickly by being given immediate access to employment opportunities through the Job Network”. The Guide goes on to state that unless exempt from Rapid Connect – in this instance, Mr Khouzame would not be exempt as he is claiming newstart allowance as a job seeker – a person is required to attend an interview with their JNM normally within two days of initial contact. Thereafter, payment would normally be backdated to the date of initial contact.

10.     The Guide goes on further to state that normally failure to do so within 14 days of initial contact will result in non payment of newstart allowance; in uncommon circumstances, Centrelink has discretion to modify this time limit. The 14 day time limit is not generally known to the claimant, nor it seems need it be, given the sufficiency in the legislation, whereby the claimant must be advised at the outset that failure to meet the requirement imposed by Centrelink, that is attend the interview with the JNM, may lead to the claimed allowance not being granted. In turn, that requires Centrelink to conform to the legislation and the Social Security Guide.

EVIDENCE

11.     There is no dispute that Mr Khouzame contacted Centrelink on 3 January 2007 and 22 January 2007. A Centrelink file note (T21 p77 of the T docs) confirms that Mr Khouzame was interviewed at Centrelink Bankstown on 3 January; a further file note (T21 p75) records an interview at that office on 22 January.

12.     A printout (T4 p 20) dated 3 January 2007 also confirms contact that day. It notes that 3 January will be used as the date of claim subject to the claim being finalised on or before 17 January (i.e. 14 days) and subject to Mr Khouzame being otherwise qualified for newstart allowance on the date of claim. The printout further notes that failure to meet that date (17 January) “may result in any payment … being paid from a later date”. The printout notes that an appointment has been made with a JNM member on 4 January, relevant details of time, duration and location being shown. The printout goes on to state “Your claim will only be assessed if you attend appointments we have booked. If you do not attend appointments booked your application for newstart allowance may not be granted”. A similar printout for 22 January (Exhibit A2) records similar data and instructions, and notes an appointment made with a JNM for 24 January.

13.     At Exhibit A3, Ms Trang Nguyen, Team leader of Customer Assistance at Bankstown records a discussion with Mr Brett Kirnham some seven months after the above contact dates. Exhibit A3 records Mr Kirnham as recalling that he had discussed the claim with Mr Khouzame, booked an appointment with a JNM, as well as one for new claim finalisation, and handed the system generated letter to Mr Khouzame. Mr Kirnham is no longer an employee of Centrelink, and hence Ms Nguyen was not called to give oral evidence; however, given the time interval between the initial contacts and the discussion with Mr Kirnham, and that his reported confirmation does not address the dates he saw Mr Khouzame, I place little weight on this document.

14.     Mr Darrin Zietsch also provided a report at Exhibit A4. This report detailed the standard procedure used by him when completing a “first contact service offer” in which he booked two appointments (one with a JNM, the second for telephone interview with Centrelink) and subsequently provided a printout and verbally briefed the claimant of the appointments and their obligations. In oral evidence, he confirmed that he had created the file notes at T21 p 77 and T21 p75 of the T docs, having interviewed Mr Khouzame. He confirmed that he had provided the printouts, referred to above, to Mr Khouzame, and advised him of his obligations. He did not advise Mr Khouzame of the 14 day time limit as defined in the Guide, as this was an internal Centrelink matter, and his briefing and the printouts clearly stated that failure to attend interviews could jeopardize finalisation of a claim for newstart allowance.

15. The SSAT based the decision in favour of Mr Khouzame on the evidence of Mr Khouzame that he was not verbally advised on either occasion (3 January and 22 January) of the requirements to attend a JNM interview, nor was he given any printout providing such direction. In support of that view, the SSAT noted that the ARO thought it unclear as to whether Mr Khouzame was properly advised. The SSAT also believed that the only written indication of appointments for interview by a JNM would have been by letter, which they believed, and I accept if that were the case, would not have been received by Mr Khouzame until after the scheduled interview time and date. Accordingly, the SSAT reached a decision that Centrelink had not conformed to the provisions of section 615 of the Act, and hence Mr Khouzame was not required to attend an interview.

DECISION

16. The evidence before me indicates that Mr Khouzame was properly interviewed and briefed on the need to attend interviews with the JNM. On the evidence of Mr Zietsch, a copy of the printout was provided on each occasion. That printout addresses the implications of not attending the scheduled appointments, and thus meets the legislative requirements in section 615 of the Act and section 64 of the Admin Act. Whether Mr Khouzame understood those implications is not for me to say. Suffice that Centrelink staff, on the evidence, conformed to the legislative requirements and the procedures for Rapid Connect. In the event, Mr Khouzame did not effect an interview with the JNM until 9 February, this being outside the 14 day period (from his second contact with Centrelink on 22 January, wherein he was advised of an appointment on 24 January) defined in the Guide. There is no evidence of “certain circumstances” before me to suggest that Centrelink should have extended that 14 day period. Accordingly the first payment date of newstart allowance on 9 February 2007 remains appropriate.

17.     The SSAT decision that payment was to commence from 3 January 2007 was in practical terms based on the view that Mr Khouzame was not informed verbally of appointment bookings for interview by the JNM, and written advice, were it sent, would not have been received by him until after the interview dates. The evidence before me refutes that conclusion.

18.     Accordingly, the decision of the Social Security Appeals Tribunal of 2 May 2007 is set aside and in substitution therefor the Tribunal decides that the payment of newstart allowance to Mr Taleeh Khouzame is to commence from 9 February 2007.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A. Horton

Signed: ............. [sgd]....................................................

Associate

Date of Hearing  8 February 2008

Date of Decision  29 February 2008

Advocate for the Applicant       Ms P Sharma, Centrelink Legal Services

Advocate for the Respondent  No appearance