Lawrance and Secretary, Department of Employment and Workplace Relations
[2006] AATA 797
•20 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 797
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/647
GENERAL ADMINISTRATIVE DIVISION ) Re AROHA LAWRANCE Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal The Hon R N J Purvis, A.M, Q.C, Deputy President Date20 September 2006
PlaceSydney
Decision The application for a stay is dismissed. …................................................
The Hon R N J Purvis, A.M, Q.C
Deputy President
CATCHWORDS
SOCIAL SECURITY – application for stay of operation of SSAT decision – failure to sign a Preparing for Work Agreement – suspension of newstart allowance – relevance of the issue of exemption from the activity test – relevance of the issue of qualification for special benefit – lack of prejudice suffered by the Applicant – application for a stay is dismissed.
Social Security Act 1991
REASONS FOR DECISION
20 September 2006 The Hon R N J Purvis, A.M, Q.C, Deputy President the application
1. Under date 29 May 2006 Ms Aroha Lawrance (“the Applicant”) applied to the Tribunal for review of the decision of the Social Security Appeals Tribunal of 17 May 2006 “affirming Centrelink’s decisions to reject a claim for special benefit, refuse to grant a section 603A activity test exemption and suspend newstart for not signing a Preparing for Work Agreement”. The present application is one by which the Applicant seeks a stay of the operation of the decision of 17 May 2006.
2. More specifically, as was stated by the Social Security Appeals Tribunal (T2/31,33-34), the decisions under review are:
“…
51. Centrelink suspended Ms Lawrance’s newstart allowance because, as stated in the letter dated 24 March 2006, she had failed to sign a preparing for work agreement. The Tribunal is of the view that her obligation to attend the 24 February 2006 [appointment] had not been absolved….
…
54. The decision to suspend is affirmed.
…
66. …The Tribunal has concluded that Ms Lawrance is not exempted from the application of subsection 624(1) i.e. the decision to not relieve her of the activity test pursuant to section 603A was affirmed. Therefore, subsection 624(1) applies to Ms Lawrance so that newstart allowance is not payable to her.
67. Thus, as newstart allowance is not payable to her because of subsection 624(1), then she does not qualify for special benefit.
68. In concluding that a recipient has failed the activity test, there is no need for that person to have been breached. As referred to earlier, whether or not a person satisfies the activity test under subsection 601(1) of the Act can be made on the available information.
69…Thus, newstart allowance is also not payable to her by virtue of section 625. Therefore, she does not qualify for special benefit on this ground also.
…
71. The result is that the decision to reject Ms Lawrance’s claim for special benefit is affirmed.”
3. The Social Security Appeals Tribunal decision affirms the suspension of newstart allowance on the basis of the applicability of both section 625 and section 624 of the Social Security Act 1991 (“the Act”), refuses exemption of the activity test on the basis of section 603A and said that the Applicant was not eligible for special benefit on account of the provisions of section 629(2).
4. In an appendice to her application for review entitled “Reasons for application”, the Applicant has made a “Request for stay order” in which she states:
“I am requesting an order under s41(2) of the Administrative Appeals Tribunal Act 1975 (sic) staying the implementation of that part of the SSAT decision which deals with ss624 and 625 of the SSA 1991. This is because Centrelink may act on those decisions and, even though no breach exists, reduce the rate of payment to me. I am in severe financial hardship and cannot afford a rate reduction. My prospects of success in relation to those aspects is high – without a decision to breach (and the SSAT concedes no breach decision exists) ss 624 or 625 simply cannot apply to render newstart allowance not payable to me … I request a stay order… No prejudice would be suffered by the Respondent should a stay order be granted. If the facts asserted by me are established at the final hearing, I will succeed in the review…”
5. In the course of the hearing of the application for a stay, the Applicant stated that she was in effect asking for a stay of the operation of paragraphs 66 and 69 (supra) of the Social Security Appeals Tribunal decision.
issues at substantive hearing
6. As noted on behalf of the Secretary, Department of Employment and Workplace Relations (“the Respondent”), the issues that will arise for determination in the substantive hearing are:
· Whether in relation to the Applicant there existed special circumstances beyond her control and whether she should have been exempted from the newstart allowance activity test under section 603A of the Act from 20 March 2006;
· Whether the decisions to suspend the Applicant’s newstart allowance payment on 24 March 2006 and subsequently to cancel that payments on 11 April 2006 were correct;
· Whether the decision to reject the Applicant’s claim for special benefit lodged on 20 March 2006 was correct, specifically whether she met the qualification criteria in section 729 of the Act.
7. The Applicant puts the issues more succinctly even be they to the same effect, namely as to whether a claim for special benefit lodged on 22 March 2006 should have been granted under 729(1) of the Act and whether a claim for 603A exemption from the activity test made on 20 March 2006 should have been granted.
8. She argues that she voluntarily surrendered newstart allowance and did not fail to satisfy the activity test as such. Accordingly she does not qualify for newstart allowance and section 729(2)(d) does not apply to her. She says that she should be distinguished from a person who simply does not want to work. Further, due to ongoing legal proceedings in relation to claims of discrimination against former Commonwealth public service employers who have imputed her with a disability that she does have not have, there are special circumstances applicable to her situation and she cannot be expected to look for work. The above are all matters that may well need to be canvassed at a substantive hearing.
relevant statutory provisions
The relevant provisions of the Act are:
603ARelief from activity test—special circumstances
603A(1)Subject to subsections (2) and (3), a person is not required to satisfy the activity test for a period if:
(a)the Secretary is satisfied that special circumstances, beyond the person’s control, exist; and
(b)the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that period.
…
624Activity test penalties for failure to satisfy activity test
624(1)Subject to subsection (2), if a person fails to satisfy the activity test (the failure), a newstart allowance is not payable to the person.
…
624(2)A person is not subject to the activity test penalty period under subsection (1) at any time during which the person:
(a)is undertaking:
(i)formal vocational training in a labour market program approved by the Employment Secretary; or
(ia)participation in the CSP; or
(ii)a rehabilitation program approved by the Employment Secretary; and
(b)has been exempted from the application of that subsection by the Secretary.
…
625Activity test penalties for failure to enter Newstart Activity Agreement
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(2)A person is not subject to the activity test penalty period under subsection (1) at any time during which the person:
(a)is undertaking:
(i)formal vocational training in a labour market program approved by the Employment Secretary; or
(ia)participation in the CSP; or
(ii)a rehabilitation program approved by the Employment Secretary; and
(b)has been exempted from the application of that subsection by the Secretary.
…
729Qualification for special benefit
729(1)A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
Note:special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).
729(2)The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a)no social security pension is payable to the person during the period; and
(b)no other social security benefit is payable to the person for the period; and
…
…
arguments in relation to the stay application
applicant’s contentions and argument
9. In her written submissions to the Tribunal the Applicant maintains:
:…
24. The relevant point of time to consider whether I am qualified for special benefit is 20 March 2006, the day I claimed special benefit.
25. On 20 March 2006 I was not qualified for newstart allowance under s 593(1)(b)(i) of the SSA because as of that date I was no longer willing to look for work.
26. Section 729(2)(d) cannot be applied to reject my claim for special benefit because on 20 March 2006 I was not qualified for newstart allowance any more. Section 729(2)(d) requires that the person still be qualified for the newstart allowance.
27. Furthermore, no s624 or s625 activity test breach existed. The allowance was never suspended, and continued to be paid at the maximum rate on 28 February 2006 and 14 March 2006.
28. …no requirement existed on 20 March 2006 for me to sign a NAA…
29. Once I no longer qualified for newstart allowance on and from 20 March 2006, the allowance became not payable, with a date of effect of 20 March 2006. ..
30. The SSAT decisions of 17 May 2006 were made in error, and should be set aside, and substituted with a decision that the special benefit claim of 20 March 2006 should be granted under s729(1) and 729(2)(e), and paid continuously to the present and for the duration of time it takes to deal with complaints, with an adjustment to take into account the newstart allowance paid from 29 May 2006.
…
32. …by 23 March 2006 the newstart allowance was already not payable… on 20 March 2006 I had not incurred a breach.
33. If the facts asserted by me are found to be correct in the substantive hearing, then the SSAT decisions relating to s624 and s625, and s729(2)(d) will be set aside. This is relevant to the exercise of power under s41(2) of the AAT Act..
34. …the SSAT reasoning regarding the complaints of unlawful discrimination and my qualification for the s603A exemption and for special benefit, is misconceived…
36. No prejudice will be suffered by Centrelink or the Secretary of DEWR, if the stay order is made. However I will suffer prejudice if it is not granted, as the rate of payment of newstart allowance can be reduced by the imposition of an activity test rate reduction should the SSAT decision stand.”
10. In her oral submissions to the Tribunal the Applicant contended that as a result of the decisions made by the Social Security Appeals Tribunal under sections 624 and 625 the Act, the “rate of pay can be reduced”. Further she had “never failed in a general sense… to satisfy the activity test” (transcript p14). She also maintains that there is a good prospect of the sections 624 and 625 decisions being set aside.
11. The Applicant maintains that the newstart allowance was suspended for what she describes as “a wrong reason”. It was suspended, she maintains, on account of her not signing a Preparing for Work Agreement even be it no requirement existed that she sign such an agreement. When the allowance was suspended, it was, she maintains, misconceived to say that it wasn’t paid to her because she failed to sign a Preparing for Work Agreement. On 20 March 2006 no requirement existed for her to sign a Preparing for work Agreement, and therefore no failure occurred in her not entering into one. Up until that point of time she maintains she had been complying with what she was required to do and satisfying the activity test.
12. She maintains that she has a good case for exemption or for the special benefit in the circumstances peculiar to her situation. She maintains that the Social Security Appeals Tribunal was in error when stating that the Applicant manifested a clear intention of not working or seeking work prior to 20 March 2006. Thus it is contended by the Applicant that she was not qualified for newstart allowance on the day that she claimed special benefit because she had surrendered it. What she maintains is that she did not qualify unless she was granted the section 603A exemption.
13. Thus it is maintained by the Applicant that if the facts are found at the substantive hearing to be as she alleges them to be, then the decision under review would be set aside in relation to sections 624 and 625. She further maintains that she has good prospects of success in relation to her claim for a grant of special benefit in the circumstances peculiar to her. She further maintains that she has good prospects in relation to the exercise of the discretion to grant her special benefit, but in the alternative, she maintains that she has good prospects of having the limited grant of the section 603A exemption for the period that she was not paid on the grounds of special circumstances.
respondent’s contentions and argument
14. The Respondent in opposing the stay application made by the Applicant submits that her claim for exemption from the activity test from 28 March 2006 (section 603A) cannot succeed as not one of the claimed special reasons were either beyond her control or made it unreasonable for her to seek work in the period.
15. Staying the decision to refuse to grant an exemption pursuant to section 603A would not have the effect of exempting the Applicant from the activity test for the 13-week period from 20 March 2006. An exemption from the activity test had been granted from 13 October 2005 up until 12 January 2006. After 13 January 2006 no exemption was in effect. A stay of the subsequent decision to refuse a further exemption from 20 March 2006 would not restore a more favourable decision.
16. With reference to the claim for special benefit it is contended on behalf of the Respondent that a stay would have no operative effect as the Applicant has never been in receipt of special benefit. Staying the decision to reject her claim would not have the effect of making her qualified to receive special benefit. The Applicant is in receipt at this time of newstart allowance, as result of which she cannot meet the criterion detailed in section 729(2)(b) and would not have a present entitlement to special benefit.
17. It was further submitted that in relation to the suspension and cancellation of newstart allowance the Applicant being aware both of the expiration of the exemption from the activity test and the requirement to take positive steps to comply with the test, refused to attend interviews or sign a Preparing for Work Agreement. She stated that she was not seeking work and it was in her view unreasonable to require her to do so. In the absence of an exemption from the activity test the Applicant was required to satisfy the activity test and she did not. Pursuant to section 624, newstart allowance is not payable where a person fails the activity test.
18. There is no ongoing hardship in the Social Security Appeals Tribunal decisions being implemented. The Applicant was again granted newstart allowance from 29 May 2006 and is currently in receipt of that allowance. There is no prejudice to the Applicant’s position at the hearing of her application for review of the decision of the Social Security Appeals Tribunal in having to comply with her statutory obligations in relation to newstart allowance.
19. The Respondent then maintains that it is not appropriate to grant a stay as part of the decision under review in that newstart allowance is not payable to the Applicant on account of the findings made under sections 624 and 625. A stay order, it is said, in relation to these findings would have the effect of rendering newstart allowance payable to the Applicant. The only possible decision which could be the subject of a stay application is the decision in relation to the suspension of newstart allowance. The other two decisions which were made by the Social Security Appeals Tribunal, being whether the Applicant should be granted special benefit and whether the Applicant should be granted an exemption from the activity test, are of the nature of “grant decisions”, and are not decisions which are amenable to a stay order. The only decision which may be reactivated is the decision to suspend newstart allowance. In relation to that decision it is said that there was ample evidence before the Social Security Appeals Tribunal to come to the conclusion that newstart allowance was not payable to the Applicant. The Tribunal’s attention was directed to the documents lodged by the Respondent with the Tribunal and specifically to T20/116, T20/118, T23/123, T23/126, T25/130, T26/131, T27/132, T28/135, T34/170, T36/176, T39/183 and T45/203. It is not necessary for the Tribunal to detail in these reasons the contents of the documents above referred to. Suffice for it to say that the Tribunal is satisfied that the conclusions drawn on behalf of the Respondent from these documents are sustainable.
20. Thus as so far as the section 603A exemption is concerned a stay should not be granted as there was not an entitlement that was taken away. As to the sections 624 and 625 findings, they are in the nature of grants decisions and not decisions appropriate to a stay order.
decision
21. The Tribunal is satisfied that in the circumstances of this application, it is not appropriate to grant a stay of the decisions of the Social Security Appeals Tribunal.
22. The only decision of that Tribunal that could be the subject of a Stay is the decision that was made in relation to the suspension of the newstart allowance. The decisions referable to whether the Applicant be granted a special benefit and whether the Applicant be granted an exemption from the activity test are not decisions that lend themselves to the making of a stay order. The decisions were to the effect that a special benefit or an exemption no to be granted. These decisions may be right or they may be wrong but there is not any act that may be the subject of a stay. The decision did not change a pre-existing situation. There is not any action permitted by the decisions that is capable of being prevented by way of a stay.
23. The suspension of the newstart allowance, as has already been indicated, falls into a different category. The Applicant is presently in receipt of payment from Centrelink and she is not experiencing any prejudice by the suspension being in place. On the other hand if a stay was to be granted, the Respondent could be itself prejudiced in paying out moneys that in due course may need to be refunded. The Applicant admits an inability to pay other than from moneys provided to her by the Respondent.
24. Whilst it is true, as the Applicant pointed out, that the rate of pay she is presently receiving can be reduced, the Respondent by its representative has informed the Tribunal that presently it has no intention of so doing.
25. For the reasons set forth above a stay order is refused. The application for a stay is dismissed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RN J Purvis, AM, Q.C, Deputy President
Signed: [sgd] .....................................................................................
Associate
Date/s of Hearing 15 August 2006 and 31 August 2006
Date of Decision 20 September 2006
Representative for the Applicant Aroha Lawrance, Self-Represented
Solicitor for the Respondent Dale Watson
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