Lim and Secretary, Department of Employment and Workplace Relations

[2006] AATA 70

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 70

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1254

GENERAL ADMINISTRATIVE DIVISION		)
Re		TSI KANG LIM

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date31 January 2006

PlaceSydney

Decision The tribunal affirms the decision under review. 

..............................................

Ms R Hunt  Senior Member

CATCHWORDS

SOCIAL SECURITY – Recipient of newstart allowance – Activity test breach - Non-attendance at open access activity in job search plan – Rate reduction period applied – Applicant required to take reasonable steps to comply – Meaning of “reasonable steps” – Failure not due to factors beyond control - Reasonable steps not taken for activity test - Decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s626(1A)

CASES

Secretary, Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426

Hamilton and Department of Family and Community Services [2002] AATA 682

REASONS FOR DECISION

31 January 2006	Senior Member Robin Hunt
SUMMARY

1.        Mr Lim, the applicant, was in receipt of newstart allowance before and during the period at issue for the tribunal’s review. Mr Lim sought review of the decision to impose an activity test breach rate reduction period from 11 March 2005 to 8 September 2005. I have found that the decision to reduce Mr Lim’s allowance for the period should be affirmed as he did not take reasonable steps to comply with the requirements imposed by Centrelink in order to receive newstart allowance. This means Mr Lim has not succeeded.

ISSUES

2.        The issue before the tribunal is whether Mr Lim breached the terms of his agreement with Centrelink about conditions he would meet to entitle him to a newstart allowance. If the tribunal finds Mr Lim did breach his agreement, the tribunal will then consider any circumstances excusing the breach. If the circumstances excuse the breach, no activity test breach reduction should be imposed in Mr Lim’s case.

ANALYSIS AND FINDINGS

3.     The records before me show Mr Lim was granted newstart allowance on 29 March 2004. Further documents show that, on 9 December 2004, Mr Lim signed a Centrelink “preparing for work agreement” that incorporated a job search plan. The plan outlined activities which Mr Lim agreed to undertake in order to continue receiving his allowance.  One of the activities Mr Lim was required to undertake under the agreement is known as the “open access job search requirement”.

4.        Mr Lim’s job network provider, Work Directions Darlinghurst (WDD), reported to Centrelink. WDD recommended on occasion that an activity test breach be imposed on Mr Lim because he had failed to comply with the open access job search requirement. The Secretary produced file records of these recommendations and pointed out that Centrelink had rejected some previous recommendations prior to imposing the decision under review. Further records show Centrelink wrote to Mr Lim on 28 February 2005 advising that his newstart allowance had been suspended because he had not complied with his agreement, and that an activity test breach reduction of 18% would apply to his payments from 11 March 2005 until 8 September 2005. On 28 April 2005, an Authorised Review Officer affirmed the decision to impose an 18% activity test breach rate reduction period. Then, on 17 August 2005, the SSAT affirmed this decision.

5. Payment of newstart allowance is made to job seekers who are unemployed and are looking for work. Section 593(1)(a)(i) of the Social Security Act 1991 provides that, in order to qualify for the allowance, a person must satisfy the activity test. Section 593(1)(f) also provides that the person must be prepared to take reasonable steps to comply with a newstart activity agreement. As well, section 626(1) of the Act provides that, if a person is required to take reasonable steps to comply with the terms of a newstart activity agreement in order to qualify, or to continue to qualify, for the allowance and fails to take reasonable steps to comply, a newstart allowance is not payable.

6.          A “newstart activity agreement” is a written agreement in an approved form.  Where a job seeker fails to take reasonable steps to comply with the terms of such an agreement, newstart allowance is not payable because of the failure (section 626 (1)).  Where the allowance later becomes payable to the person, an activity test rate reduction period, or non-payment period, applies (section 626 (1A)). The length of an activity test rate reduction period is normally 26 weeks by virtue of section 644AA.  The rate of an activity test rate reduction period is 18% for a first breach in any two year period under section 644AE (2).

7.        Mr Lim’s newstart activity agreement is before me. It shows he entered into a newstart activity agreement on 9 December 2004. The agreement included an attached job search plan. The activities Mr Lim agreed to in the job search plan were set out in writing. The last of the six activities described in the plan included Mr Lim’s attendance at open access job search two days per week for two hours per day from Thursday 9 December 2004 to Thursday 9 June 2005.

8.        Mr Lim told the tribunal he met five of the six tests he was required to meet under the plan attached to his agreement with Centrelink. Mr Lim thought this might amount to taking reasonable steps to comply.  Mr Lim told the tribunal he took reasonable steps to meet the sixth test as well. At first, he did not think attendance was essential. In addition, he said he had trouble with the open access job search requirement because of frictions with job network staff, with his manager and with the nature of the work he had to do three days a week under the work for the dole program. He had expected to be assigned to retailing with the Salvation Army but found himself sorting items. He had to carry out this task outdoors. He was exhausted by working in the sun all day three days a week. He said that, at the same time, he was attending night classes. As a result, he was too tired to attend all of the open access sessions. He also let this activity go because he thought the job search was less useful than his own efforts to obtain work. He explained an access job search involved his attending Centrelink to utilise internet ‘touch screen’ facilities to seek suitable employment.  It had not produced a result for him when he did attend. He said many people just signed in for the job search at Centrelink but did not actually conduct any search. This claim was borne out by the SSAT decision record, at paragraph 16, where a Ms Martin’s evidence to this effect was recorded.

9.        Mr Lim said he met other requirements for his allowance and kept all appointments with his job network provider and with Centrelink. He now realised he should have discussed his problems with Centrelink and not just failed to attend the access sessions. Additionally, he said he had a good record since the breach in 2004.

10.      I have considered Mr Lim’s arguments that he took reasonable steps to comply with the terms of his agreement and the reasons he found it hard to comply. I note the reasons Mr Lim gave did not suggest any circumstances beyond his control prevented him attending. He simply found it a waste of time as well as inconvenient and tiring after working in the sun three days a week. Mr Lim was not ill and did not face difficulties such as a transport strike. In my view, the open access activity in the agreement which Mr Lim was expected to fulfil was reasonable and Mr Lim was capable of complying with it. I accept that some people may pay only token attention to the access job search and that it may not often produce a result for the job seeker. However, it is one of the usual requirements in the mutual obligation environment for the grant of welfare benefits. Attendance for two hours per day two days per week is not onerous in my opinion, especially for someone working three days per week. Mr Lim does not claim the Centrelink records are wrong and it is clear he failed to attend open access job search activity on the occasions shown in the records before me.

11.       I note Mr Lim also argued that initially he was not aware of the open access job search activity in his job search plan.  However, this activity requirement is clearly shown in the plan attached to his agreement and Mr Lim acknowledged that he had initialed each of the six activity requirements set out in the plan.  Mr Lim entered into the agreement on the basis included in the statement (at T5,18) that “I agree that I am prepared to carry out all of the activities in the Job Search Plan”. On record as well is evidence of discussion of the open access requirements with Mr Lim, on 28 October 2004, and again when he signed the agreement, on 9 December 2004.

12. Mr Lim pointed out to me that, at paragraph 11 of the SSAT’s decision, the SSAT recorded his evidence about the warning he received at a meeting on or about 14 or 15 February 2005. He told me he understood from this conversation that he would not be penalized if he commenced attendance from that time. I note in this connection that some recommendations to apply the breach provisions were rejected by Centrelink. While the breach of 8 February 2005 was applied on 25 February 2005, according to a Centrelink record before me, the breach reported on 8 March 2005 was not applied. As well, two earlier reports of breaches in 2002 and 2004 were rejected. It may be that Centrelink could not retract the 8 February 2005 breach application so close to the meeting around 14 February or that Mr Lim’s recollection is inaccurate and that the undertaking Mr Lim recalls was honoured later in March 2005. In any event, I am not at liberty to find that the breach was excusable on the ground that an undertaking was given after the failure to attend occurred. Section 626(1) provides that the person must take reasonable steps to comply and sets out no other basis of compliance.

13.      On balance, I am satisfied that Mr Lim did not take reasonable steps to comply. This finding accords with the judgment of Mansfield J in Secretary, Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426. Mansfield J noted, in relation to section 45(5)(b) of the Employment Services Act 1994, which is a similar provision to section 626(1) of the Social Security Act, that the reasonableness of a person’s conduct is not confined to either external factors or internal matters. It may include personal factors going to his state of mind or his physical condition, such as illness. His Honour did not think the provision permitted consideration of matters that were entirely internal such as forgetting. By analogy, I do not consider that feeling tired or disillusioned about the usefulness of the activity is an excuse for non-attendance. See also Hamilton and Department of Family and Community Services [2002] AATA 682

14.      The length of the activity test breach rate reduction period is 26 weeks pursuant to section 644AA. As this was Mr Lim’s first breach in a two year period, the rate of the activity test rate reduction was 18% pursuant to section 644AE(2). Pursuant to section 644AB(1) of the Act, a written notice was issued to Mr Lim on 28 February 2005 informing him of the commencement of the activity test breach rate reduction period.  Pursuant to section 644AB(2), this notice advised that the rate reduction period would commence after 14 days, that is from 11 March 2005.

CONCLUSION

15.      Mr Lim is subject to an activity test breach rate reduction period, pursuant to section 626 of the Act. I make this finding as Mr Lim failed to take reasonable steps to comply with the terms of his agreement. While I accept his evidence as to why this occurred, I do not consider he took reasonable steps to comply despite the reasons he gave. His tiredness and the perceived futility of attending the access job search do not excuse his failure. I do not find his explanation adequate as his attendance was a reasonable requirement and was not beyond his control. I, therefore, find that the reduction period is in order and that the decision under review should be affirmed.

DECISION

16.      The tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:
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Zoe McDonald
Associate

Date of Hearing: 24 January 2006
Date of Decision: 31 January 2006
Solicitor for the Applicant: Self represented         
Counsel for the Respondent: Mr J. Larcombe
Solicitor for the Respondent: Centrelink Legal Services Branch