Lafferty and Secretary, Department of Family and Community Services

[2002] AATA 1171

DECISION AND REASONS FOR DECISION [2002] AATA 1171

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/522

GENERAL ADMINISTRATIVE DIVISION          )       
           Re      GARY LAFFERTY
  Applicant
           And    SECRETARY, DEPARTMENT  OF FAMILY AND COMMUNITY SERVICES    
  Respondent

DECISION

Tribunal       Mr IR Way, Member           

Date15 November 2002 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.          
  ...................(Sgd)......................
  IR Way
  Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – activity breach reduction period – whether applicant has failed to take reasonable steps to comply with newstart activity agreement

Social Security Act 1991 ss 265, 593, 604, 625, 644
Acts Interpretation Act 1901 ss 28A, 29

Secretary, Department of Employment, Education & Youth Affairs v Ferguson [1997] FCA 663

REASONS FOR DECISION

15 November 2002           Mr IR Way, Member   

1. This is an application by Gary Lafferty for review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 7 May 2002, which affirmed a decision made by Centrelink on 27 February 2002 to impose an 18% activity test breach reduction period, for 26 weeks, on the payment of Mr Lafferty's newstart allowance. 

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T29), and the documentary evidence tendered at the hearing, namely:

   ·Exhibit R1       Intensive Assistance and other contact records   (with attachments A, B, C and D)

3. Ms L McDonald, Advocacy and Administrative Law Team, appeared for the respondent.  The applicant was self-represented and gave oral evidence.
   Background Facts

4. There is no dispute between the parties about the background facts in this matter and in light of this, and on the material before it, the Tribunal finds as follows:

   ·Mr Lafferty was in receipt of newstart allowance, when on 27 February 2002, Centrelink imposed an activity test breach 18% rate reduction period for 26 weeks.

   ·On or about 8 January 2002, Mr Lafferty was registered with Mission Employment by Centrelink, Mt Gravatt, for Intensive Assistance.

   ·On or about 9 January 2002, Centrelink sent a letter to Mr Lafferty advising of this referral for Intensive Assistance to Mission Employment, and that if he was not placed with the Job Network Member of his first preference, it was because there were no spare spaces available.  The letter further advised of his obligations to attend an interview on 24 January 2002 to renegotiate his preparing for work agreement.  The letter identified this as a newstart activity agreement under the Social Security Act 1991("the Act").  This letter further advised that if he was unable to attend he should contact Mission Employment to organise alternative arrangements.

   ·On or about 31 January 2002 another letter was sent advising of an appointment on 14 February 2002.  The letter was identical in content to that sent on 9 January, but for details about the rescheduled interview.

   ·On or about 14 February 2002, Mr Lafferty was recorded to be also registered with Employment Plus, Stones Corner;  Mission Employment; and Salvation Army Property Trust for job matching purposes. A customer of Centrelink may be registered with five organisations within their region for the purpose of job matching.

   ·A stamped record of his attendance at Employment Plus is recorded on his newstart continuation form held by Centrelink for the period 28 December 2001 to 10 January 2002.  A handwritten notation of contact with Employment Plus is recorded on newstart continuation forms for the periods of 11 January to 24 January 2002 (no notation as to method of contact), 25 January to 7 February 2002 (visit) and 8 February to 21 February 2002 (telephone).

   ·On 20 February 2002, Centrelink imposed the breach for failure to enter an activity agreement under section 625(1) of the Act, when Mr Lafferty did not attend an interview with Mission Australia on 24 January 2002 and 14 February 2002 to negotiate his preparing for work agreement. The breach was imposed from 27 February 2002.

Issues

1. The issues in this matter are:

   (a)whether the applicant should be subject to a newstart activity test breach following his non-attendance at interviews with Mission Employment Services on 24 January 2002 and 14 February 2002; and

   (b)in particular, whether the applicant failed to take reasonable steps to comply with his newstart activity agreement.

Legislative Framework

1. This matter is to be decided under the provisions of the Social Security Act 1991 ("the Act").  The relevant provisions are as follows:

   "593(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

   (ii)       the person is a CDEP Scheme participant in respect of the period; and
             Note:   For CDEP Scheme participant see section 1188B.

   (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

   (ii)is not required to satisfy the activity test; and

   (c)if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and

   (d)if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and

   (e)if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and

   (f)while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and

   Note:   See subsection (2A) on taking reasonable steps.

   (g)throughout the period the person:

   (i)subject to subsection (2B), is at least 21 years of age and has not reached the pension age; and

   (ii)is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and

   (i)        the person was not in receipt of a youth allowance during the period.

   593(2A)  For the purposes of paragraph (1)(f) or (2)(f), a person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement unless the person has failed to comply with the terms of the agreement and:

   (a)the main reason for failing to comply involved a matter that was within the person's control; or

   (b)the circumstances that prevented the person from complying were reasonably foreseeable by the person.

   …
   604(1)  Subject to subsection (1A), 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.
   …
   625(1)  Subject to subsection (2), if:

   (a)a person is required to enter into a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and

   (b)       the person fails to enter into a Newstart Activity Agreement (the failure);
   a newstart allowance is not payable to the person because of the failure.

   625(1A)  If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:

   (a)if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or

   (b)if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non-payment period applies to the person."

   644AA   If an activity test breach rate reduction period applies to a person under this Part, the period applicable to the person is 26 weeks."

2. Sections 28A and 29 of the Acts Interpretation Act 1901 also relevantly provide as follows:

   "28A Service of documents

   (1)       For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then, unless the contrary intention appears, the document may be served:
             (a)       on a natural person:

   (i)        by delivering it to the person personally; or

   (ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

   (b)on a body corporate – by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

   (2)       Nothing in subsection (1):

   (a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or

   (b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.

   29  Meaning of service by post

   (1)Where an Act authorizes or requires any document to be served by post, whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

   (2)This section does not affect the operation of section 160 of the Evidence Act 1995."

Applicant's Evidence

1. As indicated earlier in these reasons for decision, there is no dispute that the applicant did not attend Mission Employment at Mt Gravatt for interview with respect to Intensive Assistance on 24 January 2002 or 14 February 2002.

2. The applicant put forward the following reasons for not attending either of these interviews:

• In a statement dated 5 March 2002 (T17/83), the applicant said:

  "I am applying to have my newstart allowance restored.  I have been going through stressing time.  I have a pain full lower back problem and this causes me not to keep things in order.  I often misplace letters and other things which I have done on this occasion…..I am more than willing to attend at next interview.  I hope these matters will be taken into consideration."

• In his application for a review by an ARO dated 8 March 2002 (T19/86), the applicant stated:

  "5.  I believe this decision is wrong.  As I had already registered with Employment Plus (next to Centrelink) then I am sent to Mission Employment Mt Gravatt which is further out of my way I cannot see any reason for this change and want my case changed by an ARO."

• On 8 April 2002 in applying for review by the SSAT (T26/97), the applicant stated:

  "I believe this decision is incorrect as Centrelink knows I have back problems and they know I had already registered with Employment Plus next door and I have registered with Mission Emply which is a long way out for me to get to.  This decision is harsh and making it impossible for me to live."

• In his application to this Tribunal for review (T1/2), the applicant gave the following reasons for his application:

  "I am seeking another review.  My doctor has write a letter to explain my circumstances and the dates in account.  I hope this will be looked at."

1. In his oral evidence the applicant stated that it was his understanding that he was registered with Employment Plus at Stones Corner for Intensive Assistance early in 2002 in that he had spoken by telephone to Mission Employment at Mt Gravatt about this in late January/early February 2002 and had given Mission Employment his mobile phone number.  He said he attended at Employment Plus at Stones Corner because it was close to his place of residence and that he had called Mission Employment to make arrangements about Intensive Assistance at Employment Plus and explained to Mission Employment that he was already registered with Employment Plus.

2. He said that at the time his breach was being determined he tried to stop it and told Centrelink he was more than willing to attend an interview. 

3. With respect to receipt of the two letters sent to him (on or about 9 January 2002 and on or about 31 January 2002), the applicant confirmed that the address on these letters was his correct address at the time and that he could recall having received at least one of the letters.  He recalled thinking he had a "bit of time" and that when he put the letter on his message board it slipped his mind and was probably covered up by "a pile of stuff".

4. It was the applicant's evidence that at the time of his breach he owned an old Ford motor vehicle which he continued to drive even though it was unregistered.  He said he had received fines for driving an unregistered vehicle. 

5. With respect to his medical condition the applicant said he was a drug addict and that he often took three to four Panadeine Forte at a time to relieve the pain in his back and these "knocked him out".

6. Because of the drugs and medication he was on, the applicant told the Tribunal that he was often wayward with his thoughts and found it difficult to concentrate.  He told the Tribunal that his father passed away recently and the stress this caused had exacerbated his wayward thought process. 

7. In his final submissions the applicant contended that he had made full efforts to avoid his breach having tried on two or three occasions to get Intensive Assistance from Employment Plus; that he thought he had done the right thing and that he could not understand why there was no record of him contacting Mission Employment in late January/early February 2002; that his medical condition explained his lack of response; and that he had the full intention of getting his breach sorted out but he was too late in trying to do so. 
   Medical Evidence

8. The Tribunal notes that Dr Manchanayake on 13 June 2002 (T1/3) has stated:

   "Mr Lafferty is a regular patient of this practice since Oct 2000.  He has on going back problems.  He tells me that he missed an appointment on 14/feb 02 with you and has been put on a breech [sic].  Even though he has not seen on that day he may have had difficulty due to his back pain that prevented him from attending that appointment.
   Current Medications:
   Vioxx 25mg prn
   Panadiene forte 2 tab prn"

9. The Tribunal also notes that Dr McCarthy provided Work Ability Information Reports in July and August 2001 in which it was consistently recorded, with respect to the applicant's back condition, as follows (T6/47):

11.  How well can this person understand and follow work instructions? These items concern impairment of intellectual function only, not sensory.  Is able to without difficulty     
12.  How well can this person communicate fluently with others in the workplace. This assumes access to compensatory devices such as hearing aids.                  No sensory or articulatory      impairment              
13.  How well can this person travel to and from and move around at work?   Mobility would be constrained           in some situations      
15.  How does this person's condition affect their ability to interact with others and behave appropriately at work?                  Without difficulty        

1. The Tribunal notes that the applicant said that Dr McCarthy had been his general practitioner at the Greenslopes Family Practice; that Dr McCarthy had passed away late 2001/early 2002; and that Dr Manchanayake was in practice at the same medical centre at Greenslopes.
   Respondent's Submissions

2. Ms McDonald, for the respondent, submitted that:

• pursuant to section 593(2A) of the Act the applicant could not be excused unless the main reason for failing to comply did not involve a matter beyond the applicant's control; and

• that there was not sufficient medical evidence to suggest pain or loss of concentration as reasons for the applicant not attending either of the scheduled appointments.

1. With respect to the conflicting evidence about the applicant contacting Mission Employment in late January/early February, the respondent relied on the official records which were before the Tribunal.

2. Insofar as the applicant's contention that his contact with Employment Plus was a reasonable attempt to obtain Intensive Assistance, the respondent submitted the applicant had been notified by Centrelink that Employment Plus was not a preference he could exercise.

3. Furthermore, it was submitted that there were no unforeseen circumstances that might excuse the applicant's failure to respond to the requests to attend a conference at Mission Employment on 24 January 2002 or 14 February 2002.

4. It was submitted therefore that the decision under review should be affirmed.
   Consideration

5. The Tribunal is satisfied that the applicant was properly required by the respondent to re-negotiate a Preparing for Work Agreement including Intensive Assistance with Mission Employment Services, and that pursuant to section 604 of the Act the respondent properly gave notice to the applicant on two occasions in January 2002 of this requirement, including the places and times for the re-negotiation to take place. The Tribunal is also satisfied that the applicant on his own evidence received at least one of these two notices.

6. The Tribunal notes and agrees with the SSAT finding (T2/8) that pursuant to sections 28A and 29 of the Acts Interpretation Act the applicant is deemed to have received both of the notices.

7. The question before the Tribunal then is whether, pursuant to section 593(1)(f) and section 593(2A) of the Act the applicant took reasonable steps to comply with the terms of his agreement.

8. Section 593(2A) of the Act provides that a person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement unless there has been a failure to comply with the agreement and the main reasons for failing to comply involved a matter that was within the person's control or that was reasonably foreseeable by the person. There is no dispute that the applicant failed to comply with his Newstart Activity Agreement and the questions before the Tribunal therefore are whether the failure to comply was within the applicant's control or whether the circumstances that prevented the applicant from complying were reasonably foreseeable by him.

9. With respect to the application of section 593(2A) of the Act, the interpretation of the terms "within the person's control" and "reasonably foreseeable" were addressed by Mansfield J in Secretary, Department of Employment, Education and Youth Affairs v Ferguson [1997] FCA 663. With respect to the first term, his Honour said:

   "The expression … requires that the main reason for the failure was something that the person had within that person's control.  The concept of 'control' in that context is one of fact, but I think it is intended to mean something which the person could have done something about.  If the person is ill, or there is some entirely external factor eg a transport strike, it may amount to circumstances which are not within that person's control.  The person, in those circumstances, would not recriminate that something should or should not have been done.  To forget to attend an appointment does not fall within that description; it is an occasion where there is an element of recrimination – the person could have done something about it, but for whatever reason, did not do so."

and further:

"In my view, the structure of [the term] is to put the relevant question in an affirmative way, that is to require that the reason for failure to comply with the terms of the agreement be positively shown to have been within the person's control, rather than requiring possibly the lesser matter to be made out that the reason was not within (i.e. that it was beyond) the person's control."

(In this matter his Honour was addressing compliance with the Employment Services Act 1994.  However the terms being considered are of like interpretation to the terms used in the social security context).

1. With respect to the term "reasonably foreseeable", his Honour said:

   "The use of the expression 'reasonably foreseeable' is commonplace.  It imports an objective assessment about a set of facts as they apply to a particular circumstance or to a particular person.  To say that, as here, they direct attention to the particular person does not import the need to determine the actual state of mind of that person.  It is to direct the objective assessment on the relevant facts in relation to particular person, with that person's health, knowledge and background.  Some persons would be able to reasonably foresee circumstances more readily than others."

2. In its consideration of this matter, the Tribunal with respect follows the interpretations as set out above. 

3. The applicant has put forward a number of reasons for non-compliance and it is appropriate at this stage to consider each of these in turn.

4. A significant reason relates to the applicant's medical condition.  He claims to have a drug problem, a back problem and a stress condition which precluded him from complying with the respondent's requirements.

5. The medical evidence clearly shows that the applicant has a back condition which would constrain his mobility in some situations.  Whether this was the case on the day he was to attend at Mission Employment is not clear.  Dr Manchanayake, some six months after the event, says he may have had difficulty due to his back pain that prevented him from attending the appointment.  However, this possibility must be weighed against the applicant's evidence that at the time in question he was attending at Employment Plus and driving his car.  The applicant has stated that as a result of his back pain he was taking three or four Panadeine Forte, as required; that this medication knocked him out; and coupled with the stress of the death of his father and his drug addiction, he was forgetful and lacking concentration. 

6. The Tribunal notes that Dr Manchanayake in his letter dated 13 June 2002, lists the applicant's current medication as Panadeine Forte 2 tablets prn; that the doctor makes no mention of the effects of this medication; that the applicant's back condition is a result of degenerative disease and has been ongoing; that Dr McCarthy, the applicant's general practitioner for some years, assesses (in August 2001) that the applicant has no difficulty in undertaking and following work instructions, communicating fluently with others and interacting with others; and that prior to the hearing in the Tribunal, the applicant has never mentioned any drug addiction nor is there any available medical evidence about the applicant's drug habits (apart from prescribed medication). 

7. The Tribunal is also mindful that the applicant's claims of forgetfulness and lack of concentration are not consistent with his evidence about attending and calling Employment Plus and calling Mission Employment in the first two months of the year.

8. After careful consideration of all of the material before it, the Tribunal, on balance, is satisfied that the applicant's medical condition was not such that it prevented him from attending either of the scheduled appointments with Mission Employment in January and February 2002; and that at this time his medical condition was a matter that was within his control. 

9. The applicant has also contended that he thought he was doing the right thing having registered with Employment Plus for Intensive Assistance and having informed Mission Employment of this by telephone in late January/early February 2002.  This contention must be considered in the light of the official records of Mission Employment which only record the applicant calling on 14 March 2002 to confirm an appointment; the Centrelink letters of 9 January 2002 and 31 January 2002 sent to Mr Lafferty informing him, in effect, that Mission Employment Services was the service to which he had been referred because no spare places were available at other (preferred) services; that Intensive Assistance is not the same as routine job matching undertaken by a job network agency, such as applied with respect to the applicant's visits and calls to Employment Plus in January and February 2002.

10. After consideration of all the material before it and the submissions of both parties (including the applicant's contention that the official records may have been tampered with to delete any record of his call to Mission Employment in late January/early February 2002), the Tribunal is satisfied that the applicant only attended Employment Plus with respect to job matching; that he had not registered with Employment Plus for Intensive Assistance; and that the first contact he had by telephone with Mission Employment was on 14 March 2002 at which time breach procedures were in train.

11. The Tribunal is of the view that it cannot be said that a reasonable person would not call Mission Employment to advise and explain why an appointment could not be met and to make alternative arrangements unless there were matters beyond that person's control to prevent the person making a call. In this case, on the findings given above and all of the material before it, the Tribunal is satisfied that it was within the applicant's control to call Mission Employment to explain his non-attendance at the scheduled meetings and to make alternative arrangements.

12. The Tribunal is also satisfied, on any objective assessment, that there are no circumstances in this matter which were reasonably unforeseeable by the applicant and which would have prevented him from attending as required.

13. Furthermore, on all of the evidence before it, the Tribunal is satisfied that there are no matters which the applicant could not have done something about nor were there any occurrences which the applicant could not realistically prevent which would excuse his attendance at, or contact with, Mission Employment at the appropriate time.

14. It follows from the reasons given above that the Tribunal is satisfied, pursuant to sections 593(1)(f) and 593(2A) of the Act that the applicant has not taken reasonable steps to comply with the terms of his Preparing for Work Agreement. Furthermore, the Tribunal is satisfied that pursuant to sections 265 and 644 of the Act, the respondent has correctly imposed an 18% activity test breach reduction period, for 26 weeks, on the payment of the applicant's newstart allowance.

15. The Tribunal therefore affirms the decision under review.

    I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

    Signed:         Denise Burton         
      Administrative Assistant

    Date of Hearing  15 October 2002
    Date of Decision  15 November 2002

    The Applicant Appeared in Person
    Solicitor for the Respondent    Ms L McDonald, Departmental Advocate