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

Leerhoff and Secretary, Department of Social Services (Social services second review) [2020] AATA 4196 (20 October 2020)
Division:GENERAL DIVISION
File Number:2020/0041
Re:Dietger Leerhoff
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:20 October 2020
Place:Perth

The Reviewable Decision, being the decision of the Authorised Review Officer as affirmed by the AAT1 on 29 November 2019, is affirmed.
...... .......[Sgd]...........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – cancellation of Newstart Allowance – Employment Pathway Plan – mutual obligation failure – reasonable excuse – whether Applicant gave prior notice of reasonable excuse – whether Newstart Allowance correctly cancelled – whether non-payment period correctly applied – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 593, 601, 605
Social Security (Administration) Act 1999 (Cth) – ss 42AC, 42AC(1)(d), 42AF(2), 42AF(2)(c), 42AI, 42AJ, 42AN, 42AN(3)(b), 42AP(5)(a), 43, 63
Social Security (Administration) (Non-Compliance) Determination 2018 (No. 1) (Cth) –
ss 5, 5(1), 5(1)(b), 6, 6(3)
Social Security (Administration) (Reasonable Excuse – Participation Payments) Determination 2018 (Cth) – ss 5, 5(2)(i), 6(2), 6(3)
SECONDARY MATERIALS
Guide to Social Policy Law – 3.11.15
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
20 October 2020
BACKGROUND TO THE APPLICATION

The Applicant has been receiving the Newstart Allowance (now called the Jobseeker Payment) since May 1993 (T18/109).
He attended a capability interview on 15 January 2019 and a capability assessment was undertaken on 27 March 2019 (T18/116-117).
The interview notes from the 15 January 2019 capability interview record that the “[j]ob Seeker’s understanding of prior contact requirement, to resolve misconceptions and reinforce importance of contacting before the appointment or activity start time if they can’t attend” was discussed during the interview (T18/116).
On 16 April 2019, the Applicant signed an Employment Pathway Plan (Job Plan) with the employment services provider, atWork Australia Pty Ltd, (the Provider) (T18/112 and T16). This job plan set out mutual obligation requirements for the Applicant, including the obligation to attend appointments with third party organisations as required by the Provider (T16/91).
On 19 June 2019, the Applicant was scheduled to attend a “work for the dole” activity at People Who Care Inc between 8.30am and 3.15pm, however he failed to attend (T15/78).
A non-compliance event report was prepared for this failure to attend on 19 June 2019. It recorded that the Applicant did not attend because he did not have money to pay for transport and that the Applicant did not give prior notice to the Provider that he was not going to attend the scheduled activity (T15/81).
In a letter dated 19 June 2019, Centrelink advised the Applicant that his Newstart Allowance had been suspended from 12 June 2019 because he did not attend the activity on

19 June 2019 (T6/59).
The Applicant was also scheduled to attend a “work for the dole” activity at People Who Care Inc on 20 June 2019 and 26 June 2019 between 8.30am and 3.15pm, however he also failed to attend on those occasions (T15/82 and 86).
A non-compliance event report was prepared for the failure to attend on 20 June 2019. It recorded that the Applicant did not attend because he did not have money to pay for transport. It also recorded that the Applicant did not give prior notice to the Provider that he was not going to attend the scheduled activity (T15/85).
Another non-compliance event report was prepared for the Applicant’s failure to attend the activity on 26 June 2019. This report similarly recorded that the Applicant did not attend because he did not have money to pay for transport and that he did not give prior notice that he was not going to attend (T15/86 and 89).
In a letter dated 2 July 2019, Centrelink advised the Applicant that they would not pay the Applicant’s Newstart Allowance payment for the period between 12 June 2019 to

25 June 2019 because he had not given a reasonable excuse for not attending the activities on 19 June 2019 and 20 June 2019 (T7/61).
In a letter dated 9 July 2019, Centrelink advised the Applicant that his Newstart Allowance had been cancelled from 26 June 2019 because he did not have a reasonable excuse for not attending the activity on 26 June 2019 (T10/66) (Cancellation Decision).
The Applicant sought review of the Cancellation Decision by an Authorised Review Officer (ARO) (T11/68). This review was unsuccessful, and on 25 September 2019 the ARO affirmed the Cancellation Decision (ARO Decision) (T12/69).
On 21 October 2019 the Applicant lodged an application seeking review of the ARO Decision in the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal) (T3/9). However, on 29 November 2019, the AAT1 affirmed the ARO Decision (T3). This is the Reviewable Decision that is currently before the Tribunal.
On 2 January 2020, the Applicant sought review of the Reviewable Decision in the General Division of the Tribunal (AAT2) (T2).
ISSUES
The issues that require determination by the Tribunal are:
(a)whether the Applicant persistently committed mutual obligation failures without a reasonable excuse;
(b)whether he gave prior notice that he would not be attending each activity;
(c)whether his Newstart Allowance was correctly cancelled; and
(d)whether a non-payment period was correctly applied.
LEGISLATIVE AND POLICY FRAMEWORK
The relevant legislative provisions are contained in the:
(a)Social Security Act 1991 (Cth) (Act);
(b)Social Security (Administration) Act 1999 (Cth) (Administration Act);
(c)Social Security (Administration) (Non-Compliance) Determination 2018 (No. 1) (Cth) (Non-Compliance Determination); and
(d)Social Security (Administration) (Reasonable Excuse – Participation Payments) Determination 2018 (Cth) (Reasonable Excuse Determination).
To be qualified for the Newstart Allowance a person must be unemployed, must meet any activity test or participation requirements that apply to them (including entering into a Job Plan and complying with the requirements in the Job Plan), and must be prepared to enter into a new Job Plan if required (see ss 593, 601 and 605 of the Act).
The Secretary can require a person to attend an office of the Department or “a particular place for a particular purpose” (s 63(2)(c) of the Administration Act).
Section 42AC of the Administration Act sets out when a person will commit a “mutual obligation failure”. It provides:
(1)A person commits a mutual obligation failure if the person is receiving a participation payment and any of the following applies:
…
(c)the person fails to attend, or to be punctual for, an appointment that the person is required to attend by:
(i) a notice under subsection 63(2); or
(ii) an employment pathway plan that is in force in relation to the person;
(d)the person fails to attend, to be punctual for, or to participate in, an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;
…
Section 42AF(2) of the Administration Act provides, in summary, that if a person commits persistent mutual obligation failures without having a reasonable excuse, their payment will be reduced for an “instalment period” (which is generally defined by s 43 of the Administration Act as a period of 14 days), or will be cancelled. The subsection states:
Special rule—persistent mutual obligation failures and no reasonable excuse
(2)If:
(a)the Secretary is satisfied in accordance with an instrument made under subsection 42AR(1) that the person has persistently committed mutual obligation failures; and
(b)the person does not satisfy the Secretary that the person has a reasonable excuse for the relevant failure (see sections 42AI and 42AJ);
the Secretary must, in accordance with that instrument, determine:
(c)that an instalment of the person's participation payment for an instalment period is to be reduced (see section 42AN), in addition to making a determination under paragraph (1)(a) of this section; or
(d)that the person's participation payment is cancelled (see section 42AP).
The “instrument” referred to in s 42AF(2) of the Administration Act is the Non-Compliance Determination. The relevant sections of the Non-Compliance Determination are set out at paragraphs [26] and [27] below.
Section 42AJ of the Administration Act effectively provides that an excuse cannot be a “reasonable excuse” for a mutual obligation failure unless prior notice was given, although prior notice may not be required if there were circumstances in which it was not reasonable to give prior notice. Section 42AJ provides:
(1)For the purposes of paragraph 42AF(2)(b), an excuse cannot be a reasonable excuse for a mutual obligation failure mentioned in subsection (2) of this section that is committed by a person unless:
(a)the person notifies the excuse as mentioned in subsection (3) of this section; or
(b)the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give the notification.
Note:The Secretary may also decide for other reasons that the excuse is not a reasonable excuse.
(2)The failures are as follows:
…
(c)a failure to attend, to be punctual for, or to participate in, an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;
…
(3)The person must notify the excuse:
…
(b)for a failure mentioned in paragraph (2)(c) or (d):
(i) before the start of the activity on the day concerned, or before the time of the appointment; and
(ii) to the person or body specified in the employment pathway plan as the person or body to whom prior notice should be given if the person is unable to undertake the activity or attend the appointment.
Section 42AN of the Administration Act effectively provides that if a person commits a mutual obligation failure, the Secretary is to reduce their payment for an instalment period by half, or by the whole, of the instalment that would otherwise have been payable for that instalment period.
Section 42AP(5)(a) of the Administration Act provides that if a payment is cancelled, it is not payable to the person for a period of four weeks.
Section 5 of the Non-compliance Determination sets out circumstances where a person has, and has not, persistently committed mutual obligation failures. Section 5(1) relevantly provides:
Circumstances where a person has persistently committed mutual obligation failures
(1)For the purposes of paragraph 42AF(2)(a) of the Act, the Secretary must be satisfied that a person has persistently committed mutual obligation failures if:
(a)the relevant failure was committed within 3 active months beginning on a day worked out under subsections (2) or (3); or
(b)in the 3 active months prior to the relevant failure, the person has committed at least 1 mutual obligation failure without a reasonable excuse where the Secretary was satisfied that the person had persistently committed mutual obligation failures.
Section 6 of the Non-compliance Determination sets out when a person’s payment is to be reduced in half, in full or cancelled. With respect to the cancellation of a payment, s 6(3) provides:
Cancellation of payment
(3)Despite subsections (1) and (2), for the purposes of paragraph 42AF(2)(d) of the Act, and subject to subsection 42AF(4) of the Act, the Secretary must determine that a person’s participation payment is cancelled if, in the 3 active months prior to the relevant failure:
(a)the Secretary has made a determination under paragraph 42AF(2)(c) to reduce an instalment of the person’s participation payment by the amount specified in paragraph 42AN(3)(b); and
(b)that determination was the last determination made under paragraph 42AF(2)(c) in relation to the person.
Section 5 of the Reasonable Excuse Determination sets out the matters to be considered in determining whether a person has a reasonable excuse for committing a failure such as a mutual obligation failure (see also Social Security Guide, 3.11.15, “specific factors to consider”). The relevant subsections of s 5 provide:
(1)For subsections 42AI(1) and 42U(1) of the Act, the matters set out in subsection (2) are matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing a failure.
(2)The matters are:
(a)the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure;
(b)         the literacy and language skills of the person;
Example for paragraph (b):
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c)         an illness, injury, impairment or disability of the person;
(d)a cognitive, neurological, psychiatric or psychological impairment or mental illness of the person;
(e)         a drug or alcohol dependency of the person;
(f)          unforeseen family or caring responsibilities of the person;
(g)the person was subjected to criminal violence (including domestic violence and sexual assault);
(h)the person was adversely affected by the death of an immediate family member or close relative;
(i)           the person was undertaking paid work at the time of the failure;
(j)           the person was attending a job interview at the time of the failure.
Sections 6(2) and 6(3) of the Reasonable Excuse Determination effectively provide that the Secretary must not take into account matters that did not “directly [prevent] the person from meeting the requirement that was the subject of the failure”.
The Social Security Guide provides guidance, at 3.11.15, relevant to a “reasonable excuse” for not attending an appointment or activity. The following excerpt, “prior notice of reasonable excuse” is relevant:
However, regardless of any given reason, the job seeker cannot be taken to have a reasonable excuse for not attending an appointment or activity if:
·     it was reasonable to expect the job seeker to have given prior notice of the reasonable excuse to the organisation which arranged the appointment or activity, and
·     the job seeker failed to do so.
In the same way an employee is expected to give prior notice of any absence where reasonable to do so, the legislation provides that a reason for non-attendance at an appointment or activity (including situations where the job seeker arrived late) can only be considered a reasonable excuse if the job seeker gives prior notice of it. However, the legislation also provides for the decision maker to determine that prior contact did not need to occur if the decision maker is satisfied that, in the circumstances, it would not have been reasonable to expect a job seeker to give such prior notice, i.e. the job seeker also has a reasonable excuse for not making prior contact.
The following are examples of some circumstances in which it would be unreasonable to expect the job seeker to have given prior notice of their inability to attend:
·     The job seeker or an immediate or close family member suffered a sudden serious illness or was unexpectedly hospitalised.
·     The job seeker lacked access to any means of contacting the provider (e.g. the job seeker did not have access to a phone, had no mobile phone credit, had no way of recharging their credit and was unable to take other suitable steps to contact their provider, such as visiting the office where possible, or using a public phone).
·     The job seeker was given notice late in the day to start work early the next morning and there were no arrangements between the job seeker and the provider to notify such an absence out of hours.
It is important to note that, even though a job seeker may have been physically able to give prior notice, it may still not have been reasonable to expect them to have done so. For example, a parent whose child is seriously ill may have access to a phone but it may still be unreasonable to expect them to think of calling their provider or Services Australia as relevant.
Even if the job seeker's reason for not attending an appointment or an activity was that they were engaged in another activity at the time which meant that they were fully meeting their requirements (e.g. working) their reason may not necessarily be taken to provide a reasonable excuse for their failure to make prior contact. The circumstances need to be considered on a case by case basis, with the crucial consideration being whether, even if the reason for missing the appointment or activity would otherwise be regarded as reasonable the job seeker could reasonably have been expected to give prior notice that they would be unable to attend.
Act reference: SS(Admin)Act section 42UA Prior notification of excuse, section 42AJ Reasonable excuses for mutual obligation failures - prior notification required for certain failures
The Social Security Guide, at 3.11.15, continues with the following explanation of the “meaning of reasonable excuse”:
Assuming that the job seeker gave prior notice when it was reasonable to expect them to have done so, the following considerations may lead the delegate to decide that the job seeker has a reasonable excuse and therefore that no failure should be applied.
The meaning of the term reasonable excuse is not defined in legislation but the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. Mutual obligation requirements are designed to prepare job seekers for work and therefore a reasonable excuse should generally also be one that an employer would consider reasonable for an employee who missed work. The job seeker is also required to give prior notice of their inability to attend when it is reasonable to do so, as an employee is expected to.
If the circumstance that prevented the job seeker from meeting their requirement was unforeseeable and outside the person's control, it provides a reasonable excuse. However, this does not necessarily mean a circumstance that was foreseeable or was within the job seeker's control can never constitute a reasonable excuse. For example, if a job seeker is expecting to be admitted to hospital or is aware they may have unavoidable, one-off, caring responsibilities on a certain date, both of which are foreseeable and within the job seeker's control, they can be taken to have reasonable excuse so long as they give prior notice of their non-attendance. In such circumstances, the provider would be expected to reschedule the appointment. However, if for some reason the appointment was not rescheduled by the provider and the job seeker failed to attend, this would be a clear example of a job seeker having a reasonable excuse for non-attendance despite the matter that prevented attendance being foreseeable and within the job seeker's control.
It is also important to establish that the requirement that the job seeker was supposed to undertake was reasonable, was within their capacity and that the job seeker was notified correctly. If a requirement was not within a job seeker's capacity, they have a reasonable excuse for not meeting it. It should also be remembered that, because a job seeker's circumstances can change, a requirement that was reasonable at the time a job seeker entered into their Job Plan may no longer be reasonable at the time they failed to comply.
When determining if a recipient has a reasonable excuse for failing to meet a requirement, Services Australia must consider the recipient's personal circumstances. For example, a history of homelessness or an episodic mental illness could have been a factor in the recipient's failure to comply. Administrative tools such as the Vulnerability Indicator (placed on a job seeker's computer record) can be useful in alerting delegates to personal circumstances that could potentially explain a job seeker's non-compliance. The delegate should also be alert for any undisclosed personal issues, particularly domestic violence or mental health issues that could have explained the failure. It will not always be the case that, in a particular instance, such issues were a factor, but Services Australia must consider this possibility carefully in every case where such issues are evident.
DID THE APPLICANT PERSISTENTLY COMMIT MUTUAL OBLIGATION FAILURES WITHOUT A REASONABLE EXCUSE?

The Applicant failed to attend “work for the dole” activities with the Provider on 19, 20 and 26 June 2019. He was directed to attend these activities as part of his Job Plan, which included an obligation to attend appointments with third party organisations as required by the Provider (T16/91). He therefore committed mutual obligation failures, as set out in
s 42AC(1)(d) of the Administration Act.
These mutual obligation failures were persistently committed because in the three months prior to the relevant failure, being 26 June 2019, the Applicant committed at least one mutual obligation failure by failing to attend the three activities (s 42AF(2) of the Administration Act and s 5(1)(b) of the Non-Compliance Determination).
However, in addition to being satisfied that the Applicant committed at least one mutual obligation failure in the relevant three month period, the Tribunal, standing in the shoes of the Secretary, must also consider whether it is satisfied that the person has a reasonable excuse for the failure (s 42AF(2) of the Administration Act and s 5(1)(b) of the
Non-Compliance Determination).
The Applicant gave conflicting excuses for failing to attend the activities. As noted in paragraphs [6], [9] and [10], the Applicant initially stated he did not attend the activities because he did not have money to pay for transport.
There are further inconsistencies in the Applicant’s evidence given over time which were put to the Applicant during the hearing. When it was put to the Applicant that he told the ARO that, “[he] lacked funds to provide notice or take public transport to the activities” (T12/71), the Applicant agreed (transcript/17-18). Additionally, a letter of support from the Applicant’s housemate submitted to Centrelink on 2 July 2019 states that the housemate could not drive the Applicant to his “work for the dole” appointments because he had a sore back (T8/63).
However, at the hearing, the Applicant’s excuse for not attending the activities was that he was working as a casual sub-contractor for a construction company on 19, 20 and 26 June 2019 (transcript/10-11; see also A4). The Tribunal notes an undated letter from this construction company which states that the Applicant was undertaking this sub-contracting work on 19, 20, 21 and 26 June 2020 (A1), and an excerpt from a bank account statement showing a payment of $600 from the construction company on 27 June 2019 (A2). The reference to 2020 in the letter from the construction company appears to be a typographical error given that the letter was filed with the Tribunal on 28 March 2020. Based on the bank account statement and the letter from the construction company, the Tribunal accepts that the Applicant was undertaking this work for the construction company on the dates he committed the mutual obligation failures.
With respect to whether the Applicant’s excuse was “reasonable”, paid work can, in some circumstances, be a reasonable excuse. This is shown in s 5(2)(i) of the Reasonable Excuse Determination which provides that the Secretary, and in this case the Tribunal standing in the shoes of the Secretary, must take into account that the Applicant was undertaking paid work at the time of the failures. However, the problem for the Applicant to overcome is whether he gave prior notice that he would not be attending the activities.
DID THE APPLICANT GIVE PRIOR NOTICE THAT HE WOULD NOT BE ATTENDING?
Section 42AJ of the Administration Act, outlined above, provides that an excuse cannot be a reasonable excuse for a mutual obligation failure (that is a failure to attend an activity) unless the person gives prior notice of their reasonable excuse for not attending.
At the hearing the Applicant stated that he did give prior notice to the Provider. In summary, his evidence was that he gave this notice when he attended the Provider on approximately 18 June 2019 and was provided with two fuel cards and a $20 voucher for public transport so he could attend his casual work with the construction company (transcript/8, 10, 15; see also A3 and A4). The Tribunal notes, however, an email from the Provider that they could not find a record of the fuel card being provided to the Applicant (A3).
However later during the hearing, the Applicant was asked about the following record of a telephone conversation from 9 July 2019 (T17/100) which stated:
I contacted Mr Dietger Leerhoff at 12.45pm. Mr Dietger Leerhoff advised he missed his activity due to he was working on the day. However, Mr Dietger Leerhoff admitted that he failed to advise his provider about his unavailability even though he was fully aware of the requirement.
The Applicant was evasive in his answers concerning this record. He stated that, “[l]ook, if you’re hungry and you need money, you’re pretty much going to get pushed into the point where you’re going to tell them whatever you want…”. Then when asked by the Senior Member to clarify whether he had just admitted that he did in fact fail to advise he would be unavailable to attend the activity, the Applicant stated, “I might have unknowingly done – unwittingly done that, yes. I may have…”. When the Applicant was given a third opportunity to clarify he stated, “[y]ou’re splitting hairs now, you really are” (transcript/16).
The Applicant was also evasive with respect to the evidence he gave to the AAT1, when this was put to him under cross-examination at the AAT2 hearing. The AAT1 decision recorded the Applicant’s evidence that he did not give prior notice of his inability to attend the three activities (T3/10-11). He initially agreed that this is what he told the AAT1, then stated, “I’m not sure”, and subsequently stated that “they [the Provider] were notified” (transcript/17-18). When it was again put to him that his sworn evidence to the AAT1 was different to the evidence he was currently giving, the Applicant stated (transcript/19):
Okay. Well, under duress I guess I said the wrong thing, didn’t I? At the end of the day I can’t exactly get it – and like I’ve said, I can’t get the bank to make a forgery – a forged document or anything, or ask [the construction company] to produce forged documents on my behalf. They’re not going to do it. The facts are already there. You’re just splitting hairs on it now. Trying to get me on a loophole.
The Applicant further stated at the AAT2 hearing that he gave the evidence to the AAT1 that he has not given prior notice because he was under duress and that (transcript/19):
I would have been pressured into just saying things without thinking them through. At the end of the day I just wanted to get food in my mouth.
Toward the end of the AAT2 hearing, the Applicant’s evidence was that he gave the Provider notice that he would not be attending the first two activities (on 19 and 20 June 2019), but not the third activity (on 26 June 2019). This was because by 26 June 2019 he was not being paid so his view was that there was no mutual obligation to fulfil (transcript/21).
There is no evidence of any duress before the Tribunal. The Applicant is undoubtedly frustrated by the cancellation of his Newstart Allowance due to his attending work at the construction company and believes that he is entitled to the cancelled payments. However, that is not duress, and nor is it a reason to give contradictory and evasive evidence under oath. The Applicant told the ARO, and gave evidence to the AAT1, that he did not give prior notice and that he lacked the funds to attend the activity. However, his evidence to this Tribunal was that he gave prior notice with respect to the first two activities when he attended the Provider’s office to obtain the fuel cards and a public transport voucher so he could travel to his paid casual employment.
The Tribunal finds the Applicant’s evidence to be unreliable and does not accept his evidence at the AAT2 hearing that he gave prior notice. Given the contradictions in the Applicant’s evidence, the Tribunal is of the opinion that the contemporaneous records are the most reliable record of whether the Applicant gave prior notice. These records include the three non-compliance event reports (see above paragraphs [6], [9] and [10]) which each recorded that the Applicant did not attend the three scheduled activities and that he did not give prior notice to the Provider that he was not going to attend. The content of these reports is corroborated by other contemporaneous records including the record of the telephone conversation from 9 July 2019 (see paragraph [41] above) and the note made by the ARO (see paragraph [36] above) which both confirm that the Applicant did not provide prior notice.
The Tribunal finds, based on the contemporaneous records, that the Applicant did not give prior notice that he would not be attending the activities on 19, 20 and 26 June 2019. There is no evidence to suggest that it was not reasonable to expect him to do so (s 42AJ of the Administration Act and 3.11.15 of the Social Security Guide).
In summary, the Tribunal finds that the Applicant persistently committed mutual obligation failures and that he did not have a reasonable excuse.
WAS THE APPLICANT’S NEWSTART ALLOWANCE CORRECTLY CANCELLED?
Section 42AF(2) of the Administration Act, reproduced above, provides that if a person has persistently committed mutual obligation failures and did not have a reasonable excuse, the payment should be reduced for an instalment period or cancelled. As was also noted above, s 6(3) of the Non-Compliance Determination effectively provides that the Secretary must cancel a payment if in the three months prior to the relevant failure the Secretary has made a determination under s 42AF(2)(c) of the Administration Act to reduce an instalment in whole pursuant to s 42AN(3)(b) of the Administration Act.
In the three months prior to the relevant failure on 26 June 2019, the Secretary did make such a determination. Specifically, the Applicant’s Newstart Allowance was suspended on 1 May 2019 (T17/94). Also, on 19 June 2019, the Applicant’s Newstart Allowance was suspended from 12 June 2019 because of his failure to attend the activity on 19 June 2019.
Consequently, the Tribunal finds that the Applicant’s Newstart Allowance was correctly cancelled.
WAS A NON-PAYMENT PERIOD CORRECTLY APPLIED?
Pursuant to s 42AP(5)(a) of the Administration Act, if a payment is cancelled, there is a

non-payment period of four weeks. The Applicant’s Newstart Allowance was cancelled from 26 June 2019 (T10/66). Consequently, the Tribunal finds that a non-payment period of four weeks from 26 June 2019 to 24 July 2019 was correct.
CONCLUSION
In summary, the Tribunal has found that:
(a)the Applicant persistently committed mutual obligation failures by not attending his “work for the dole” activities on 19, 20 and 26 June 2019;
(b)he did not have a reasonable excuse and did not give prior notice that he would not be attending;
(c)his Newstart Allowance was correctly cancelled; and
(d)the non-payment period from 26 June 2019 to 24 July 2019 was correctly applied.
DECISION
The correct and preferable decision is that the Reviewable Decision, being the decision of the ARO as affirmed by the AAT1 on 29 November 2019, is affirmed.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

........[Sgd]................................................................
Associate
Dated: 20 October 2020

Date of hearing: 22 July 2020

Applicant: Self-represented

Counsel for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 4196

20 October 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	22 July 2020
Applicant:	Self-represented
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers