Lawler and Secretary, Department of Family and Community Services

[2005] AATA 571

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 571

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/53

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BENJAMIN JAMES LAWLER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member Mary Imlach

Date15 June 2005  

PlaceHobart

Decision The original decision of 15 February 2005 as varied by a decision on 25 May 2005 to reduce the administrative rate reduction period to eight weeks from 1 March 2005 is affirmed.

[Sgd Mary Imlach]

Senior Member

SOCIAL SECURITY – newstart allowance – reasonable excuse

Social Security Act 1991 (Cth) s 583, s 583A (1), s 583B, s 644C, s 644B (1) and s 644H (1)

Social Security (Administration) Act 1999 (Cth) s 63 (1), s 63 (3) and s 63 (4)

Re Bender and Department of Family and Community Services [1999] AATA 119
Re Walsh and Secretary, Department of Family and Community Services [2002] AATA 881
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

Senior Member Mary Imlach         

1.      On 29 March 2005 an Authorised Review Officer (“ARO”) of Centrelink affirmed an earlier departmental decision of 15 February 2005 imposing a 16 per cent reduction on the rate of Newstart Allowance paid to Mr Lawler (“the Applicant”) for a period of 13 weeks to 30 May 2005 (“the original decision).

2.      The applicant sought a further review from the Social Security Appeals Tribunal (“SSAT”) which affirmed the original decision on 19 May 2005.

3.      On 3 May 2005, the Applicant sought review of the original decision by the Administrative Appeals Tribunal (“the Tribunal”).

4.      On 25 May 2005, the Respondent made a new decision in relation to this matter to reduce the administrative breach rate reduction period to eight weeks from 1 March 2005.

issue

5.      The issue in this matter is whether or not the Applicant had a reasonable excuse for failing to attend the interview with Salvation Army Employment Plus on 27 January 2005.

background

6.      The Applicant was in receipt of a Newstart Allowance from at least August 2003. 

7. The Applicant whilst on Newstart Allowance was required pursuant to s 63 of the Social Security (Administration) Act 1999 (“the Administration Act”) to attend meetings as and when given notice by Centrelink to do so.

8.      On 14 January 2005 the Applicant was sent a letter requesting him to attend a meeting with Salvation Army Employment Plus service at 11.45 am on 27 January 2005 at 159 Collins Street, Hobart.

9.      The Applicant did not attend the meeting on 27 January 2005 with Salvation Army Employment Plus.

10.     Centrelink contacted the Applicant on 2 February 2005 and requested a statement from him by 9 February 2005 explaining why he had not attended the meeting.

11.     On 10 February 2005 Centrelink received a statement from the Applicant saying he could not attend the interview with Salvation Army Employment Plus on 27 January 2005 because he had been working for two days prior to the interview and had suffered heatstroke.  The Applicant said that he had attempted to contact Salvation Army Employment Plus by telephone but had not been able to reach them.

applicant’s case

12.     The Applicant was represented at the hearing by Mr Benedict Bartl of the Hobart Community Legal Service.  Oral evidence was given by the Applicant and one other witness, John Edward Downes (“Downes”) who is a business partner of the Applicant.

13.     Both the Applicant and Downes gave evidence to the Tribunal that they had recently started a business called “Snappy Turtle Enterprises” (“the business”) which was a logging salvaging business.

14.     On the two days prior to the interview that is, on 25 and 26 January 2005, both the Applicant and Downes had been working in extreme temperatures of 27 degrees Celsius on 25 January and 32 degrees Celsius on 26 January.  The conditions in which they were working were oppressive in that there was no shade and they were required to carry large pieces of wood long distances to a truck into which they loaded it.

15.     The Applicant contended that on the following day, 27 January 2005, he awoke feeling nauseated and suffering from muscle pains and a headache.

16.     The Applicant did not obtain a medical certificate from his doctor on 27 January 2005; however, he did so on 12 May 2005.  His doctor stated in a letter of the same date, that had he seen the Applicant on 27 January 2005 he would have diagnosed him as suffering from heatstroke and would have given him a medical certificate stating that he was not fit to attend the appointment.

17.     The Applicant contended that on the basis of the evidence from his doctor he had provided a reasonable excuse why he had been unable to attend the interview with Salvation Army Employment Plus because he was suffering from heatstroke.

respondent’s contentions

18.     The Respondent contended that as this is an application for review de novo, the Tribunal in deciding the matter, is bound to apply the law.

19. Section 63 (9) of the Administration Act states that the Secretary may determine that a rate reduction does not apply if the Secretary is satisfied that the Applicant had a reasonable excuse for not complying with the requirement to attend the interview on 27 January 2005.

20.     The Respondent referred the Tribunal to the decision in Re Bender and Department of Family and Community Services [1999] AATA 119 where the Tribunal said:

37. The Shorter Oxford English Dictionary defines "reasonable" as:

"3. Agreeable to reason; not irrational, absurd or ridiculous."

38. The Tribunal considers its findings are consistent with the plain meaning of "reasonable".

21.     The Respondent referred to the Guide to the Social Security Law (“the Guide”) at 3.2.11.60 which provides (inter alia):

“What is reasonable excuse”? 

The meaning of the term “reasonable excuse” is discretionary but in basic terms the excuse must be one that would seem plausible and satisfactory to a member of the public.  This means that the refusal or failure must not simply be a deliberate act of non-compliance.

22.     The Respondent referred to the decisions in Re Walsh and Secretary, Department of Family and Community Services [2002] AATA 881 in which the Tribunal said at paragraph 26:

26. . . . The Tribunal, whilst not bound to apply policy guidelines of the kind referred to above in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: . . .

23.     The Respondent referred also to the decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 645:

When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.

24.     The Respondent contended that the Applicant’s failure to attend the interview on 27 January 2005 was unreasonable in all the circumstances.  He argued that the medical evidence provided by the Applicant from Dr Cox dated 12 May 2005 had no evidentiary value in relation to the Applicant’s condition on 27 January 2005.

25.     The Respondent argued that the Applicant had stated in his own Statement of Facts and Contentions that he had not responded to Centrelink’s request of 2 February 2005 to provide a statement of his reasons for not attending the interview because “he had lost faith in the system and did not believe it would be worthwhile to submit the statement”.  The Respondent commented that an equally plausible explanation might have been because he did not have a reasonable excuse.

discussion of evidence

26.     The Tribunal had before it paper and electronic records from Centrelink’s file and documentary material supplied by the Applicant.

27.     There is no dispute that the Applicant was sent a letter by Centrelink on 14 January 2005 requiring him to attend an appointment with the Salvation Army Employment Plus at 11.45 pm on 27 January 2005 at 159 Collins Street, Hobart and that that letter had advised him of the consequences of not attending.

28.     There was also evidence before the Tribunal that the Applicant had failed to attend appointments made for him by Centrelink in December 2004.

29.     Furthermore the Tribunal notes from records on the Centrelink file that the Applicant was contacted by Centrelink on 2 February 2005 as he had not provided a statement to Centrelink giving a reason why he had not attended the interview on 27 January 2005.

30.     The Applicant was invited to provide such a statement to Centrelink by 9 February 2005 but did not do so.  Centrelink telephoned the Applicant on 10 February 2005 and warned him again that as he had supplied no information to Centrelink the rate reduction of his Newstart Allowance would go ahead.  The Applicant requested Centrelink to wait until he lodged a statement on that day.

31.     The Applicant lodged a statement with Centrelink on 10 February 2005 giving the reasons he did not attend the interview on 27 January 2005.

32.     The Tribunal accepts the Respondent’s contention that no evidentiary value should be given to the medical “Certificate” supplied by the Applicant and shown as attachment 3 to his Statement of Facts and Contentions dated 12 May 2005.

33.     The “Certificate” was obtained by the Applicant after consultation with his doctor some 16 weeks after the date of the appointment with Salvation Army Employment Plus on 27 January 2005.

34.     The “Certificate” referred to the temperatures on 25 and 26 January 2005 as being 36 degrees Celsius on both days, whereas it was 27 degrees Celsius on 25 January and 32 degrees Celsius on 26 January 2005.  It can be seen from this that the Applicant has tailored his evidence to what he perceives as his own best advantage.

35.     The Applicant acknowledged in his Statement of Facts and Contentions that on the day following the scheduled interview he and Downes had driven to New Norfolk where they spent two days processing the wood they had collected.  It is evident that although the Applicant was well enough to drive to New Norfolk he made no attempt to contact Centrelink or Salvation Army Employment Plus to give any excuse for his failure to attend the interview on the preceding day.

36.     The Tribunal finds that there was sufficient written and verbal advice given to the Applicant by Centrelink in its initial letter of 14 January 2005 and in telephone advice on 2 and 10 February 2005 that if no acceptance statement were received by Centrelink informing them of the reason the Applicant failed to attend the interview on 27 January 2005, a rate reduction in his Newstart Allowance would apply.

37.     The Tribunal accepts the Applicant’s evidence that he attempted to telephone Salvation Army Employment Plus shortly before the appointed time for the interview but no attempt after 27 January 2005 to explain his absence until contacted by Centrelink.

38. Section 63 of the Administration Act provides that where a person is in receipt of Newstart Allowance and the Secretary is of the opinion that they should attend a particular place for a particular purpose, the Secretary may give them written notice to that effect. If the requirement is reasonable and the person does not, without reasonable excuse comply, then an administrative rate reduction period applies to the person.

39.     The Tribunal is not satisfied that the evidence supplied by the Applicant establishes that he was so exhausted on 27 January 2005 that he could not attend the interview nor that he made any attempt to postpone the interview.  The Tribunal therefore does not accept his reasons for non-attendance as a reasonable excuse.

40.     There is evidence that Centrelink spoke to the Applicant on 2 February 2005 inviting him to lodge a statement by 9 February 2005 and advising him that a rate reduction in his Newstart Allowance would apply if no reasonable excuse were obtained.

41.     The Tribunal is satisfied therefore that an administrative breach rate reduction be applied to the Applicant.

42.     The original decision as varied by the new decision on 25 May 2005 is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mary Imlach

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  26 May 2005
Date of Decision  15 June 2005
Counsel for the Applicant         Benedict Bartl
Solicitor for the Applicant          Hobart Community Legal Service
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink