Linge and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 743
•26 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 743
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5389
GENERAL ADMINISTRATIVE DIVISION ) Re BRUCE LINGE Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date26 August 2008
PlaceWyong
Decision The decision under review is affirmed. ...................[Sgd]....................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – participation failure – no reasonable excuse – decision under review affirmed.
Social Security Act 1991 – sections 593, 601, 605, 624, 626, 629 and 630
REASONS FOR DECISION
26 August 2008 Ms N Isenberg, Senior Member DECISION UNDER REVIEW
1. The decision of the Social Security Appeals Tribunal (“SSAT”) dated 12 October 2007 which affirmed Centrelink’s decision of 13 July 2007 to impose an eight week non payment period.
BACKGROUND
2. Apart from a three month period in April-July 2007 and a one month period in February-March 2005, Mr Linge has received social security benefits since 10 January 2000.
3. Mr Linge entered into an activity agreement with Workwise Central Coast Inc (“Workwise”) on 6 December 2006 in which he agreed to commence, fully participate in and complete Work for the Dole (“WFTD”) from 13 December 2006 to 17 April 2007.
4. Mr Linge did not attend WFTD, as required, on 4 occasions in February and March 2007. Centrelink decided that Mr Linge’s failure to attend WFTD was a newstart participation failure.
5. On 9 May 2007, the Salvation Army Employment Plus (“Salvation Army”) wrote to Mr Linge asking him to attend an appointment at 9.30 am on 21 May 2007. The letter advised Mr Linge that it was a requirement of his activity agreement that he attend this appointment or call at least 24 hours before the appointment if he was not able to attend at the scheduled time. Mr Linge did not attend the appointment. Consequently, Centrelink decided to impose a participation failure.
6. Mr Linge entered into a new activity agreement with Wesley Uniting Employment on 31 May 2007. One of the terms of this agreement required Mr Linge to attend “TSAEP [i.e. the Salvation Army] Lake Haven for a minimum of one 1.5hr Assisted Jobsearch Session each and every week from 31/05/2007 to 30/11/2007.”
7. On Friday 22 June 2007, Mr Linge left assisted job search after 52 minutes without permission. Centrelink decided that Mr Linge’s failure to remain at assisted Jobsearch for 1.5 hours was a participation failure.
ISSUES BEFORE THE TRIBUNAL
8. The issues that need to be determined are:
·Whether Mr Linge failed to attend WFTD on 4 occasions during February and March 2007, and if so, whether he had a reasonable excuse for not attending.
·Whether Mr Linge failed to attend an appointment with the Salvation Army at 9.30 am on Monday 21 May 2007, and if so, whether he had a reasonable excuse for not attending.
·Whether Mr Linge left assisted Jobsearch on Friday 22 June 2007 after less than one hour without permission, and if so, whether he had a reasonable excuse for doing so.
LEGISLATIVE FRAMEWORK
9. The legislation applicable to the circumstances in this case may be briefly summarised in the following paragraphs.
10. Section 593 of the Social Security Act 1991 (“the Act”) sets out how a person qualifies for newstart allowance. This section requires a person to be unemployed, satisfy the activity test and to comply with the terms of their newstart activity agreement: subsection 593(1)(f).
11. Subsection 601(5) provides that if a person fails to comply with the terms of their newstart activity agreement, the person cannot satisfy the activity test in spite of the person actively seeking and being willing to undertake suitable paid work.
12. Subsection 605(2) empowers the Secretary to require a person who already has a newstart activity agreement to enter into another one and subsection 605(3) sets out the notification requirements for this.
13. Subsection 624(1)(d) states that a person commits a newstart participation failure if the person fails to comply with a term of their newstart activity agreement.
14. Subsection 624(1)(f) provides that a newstart participation failure is committed if ther is a failure to “commence, complete or participate” in their newstart activity agreement or comply with the “conditions” of the agreement.
15. Subsection 626(1) states that newstart allowance is not payable if a person commits a newstart participation failure. Subsection 626(1) does not apply if the Secretary is satisfied that the person has a reasonable excuse for committing a participation failure: subsection 626(2).
16. The Social Security (Reasonable Excuse) (DEWR) Determination 2006 (“the Determination”) sets out the matters that must be taken into account when determining if a person has a reasonable excuse for committing a newstart participation failure.
17. Section 629 sets out the circumstances in which a person’s newstart allowance is not payable for a period of eight weeks and section 630 provides the date on which a non-payment period under section 629 starts.
DISCUSSION OF EVIDENCE AND FINDINGS
18. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. The following documents were also tendered:
·Exhibit R1 – statement of facts and contentions dated 18 July 2008. The following documents were also attached:
oAnnexure A – Centrelink computer record – Allowance/Benefit History.
oAnnexure B – Work for the Dole Attendance Records – Weeks ending 23 February 2007, 2 March 2007, 9 March 2007.
oAnnexure C – Activity Agreement between Mr Linge and Wesley Uniting Employment dated 31 May 2007.
oAnnexure D – IES Participation Report Details 22 June 2007.
oAnnexure E – Written response from the East Coast Taekwondo Academy.
oAnnexure F – Centrelink record of Carer Allowance payments made to Mr Linge.
·Exhibit R2 – route 90 and 92 bus timetable for Lake Haven district.
19. Mr Linge gave evidence and was cross-examined. I also asked him questions.
Failure to attend Work for the Dole
20. Mr Linge agreed that he had entered into an activity agreement with Workwise on 6 December 2006 and understood that he was to “commence, fully participate in and complete Work for the Dole from 13/12/2006 to 17/04/2007…” He said that he was not able to negotiate the WFTD agreement as he was told to sign it or his newstart allowance would be cut off. Hence, it was not possible to have his training to become a taekwondo instructor accepted as legitimate preparation for the work task. A major impediment was apparently that the accreditation through the National Coaching Accreditation Scheme was not recognised by the government.
21. He said he knew he had to attend WFTD – repairing an old church – twice per week; any 2 days between Monday and Thursday. He had to nominate the days a week in advance, but if he was unable to come he was allowed to come any other day to make up the time. He was shown the attendance record for the weeks ending 23 February, 2 March and 9 March 2007 (Annexure B). In the first week he was recorded as attending one day, and in the second, he did not attend at all. He said he failed to attend because he was training to become a qualified taekwondo instructor, and that he had provided that explanation to his WFTD supervisor for his absence. In the 3rd week he attended once, and two other days were signed but crossed out. He said he had told his supervisor that he was training the previous week and that he had been allowed to sign for 2 extra days in the 3rd week. However, “head office” had refused to accept his explanation that he was training and crossed out his 2 additional signatures that week.
22. Mr Linge told me that it is his goal to become a fulltime taekwondo instructor. He had had to train hard to get his accreditation as an instructor: 6 days per week. He had classes with his instructor and would assist in teaching on a voluntary basis in the afternoons and evenings. In mid-late March 2007, he undertook a 2 day course to become an instructor, but needed, beforehand, to ensure his technical proficiency in taekwondo and also to be sufficiently proficient in Korean to understand those conducting the course. The course included aspects of student psychology, competition rules and insurance issues. He gained his instructor’s “ticket” on 31 March 2007.
23. Mr Linge told the SSAT that initially the WFTD project required him to attend from 8.30 am until midday, however the hours changed and he had to work until 3 or 3.30 pm which clashed with his taekwondo training. Mr Linge told the SSAT that his taekwondo training involved helping another trainer with his classes and this person provided free training. The East Coast Taekwondo Academy (“the Academy”) confirmed that Mr Linge undertook training as a taekwondo instructor for 20 hours per week at venues around the Central Coast from 2006 (Annexure E). The Academy did not pay Mr Linge, but said he may have received payment from students.
24. Mr Linge told the SSAT that he thought WFTD was “slave labour”. He also said that he was aware that if he did not attend WFTD, a participation failure would be imposed. However, he said he was not aware this would lead to an eight-week non-payment period despite receiving notification to this effect.
25. He told me that from April 2007 he has conducted his own classes as a sub-contractor for the Academy. He currently has 12 students. He did have 21, but some fell away with winter. The students pay $45 per month. He pays $11 per week for hall hire, and about $250 per month in advertising. He plans to take another class at Bonnells Bay shortly. As he does not have a motor vehicle licence or a car, his prospects for expansion are limited. He owes about $5k in fines. There is one other martial arts group in the area, but he has not approached them for a job because they are not “legitimate”. He agreed it would be some time before he could expand the business.
26. He said he had intended to comply with his WFTD obligations “up to a point”, that is, he only ever intended to work until lunchtime so as not to interfere with his taekwondo. Taekwondo was his priority. He did not directly tell the Salvation Army that he would not do a job that interfered with his taekwondo, but “allowed them to believe that”.
27. There was no dispute that Mr Linge did not undertake his WFTD obligations. It remains to be considered if he had a reasonable excuse for not attending.
28. I reviewed the matters listed in the Determination and find that none apply in relation to Mr Linge’s failure to attend WFTD. He was specifically asked about matters which might have brought him within any of these provisions. I note that Mr Linge has been seen by a number of health professionals, but no factors have been identified to bring him within any of the limited provisions of that Determination.
29. Further, while I accept that Mr Linge may have been undertaking taekwondo training in order to gain his instructor accreditation, I do not accept this explanation for not fully attending WFTD in February and March 2007 as a reasonable excuse. Undertaking training as a taekwondo instructor was not a term of Mr Linge’s newstart activity agreement, therefore undertaking such training in lieu of his WFTD commitments was not, in my view, reasonable. Had he been able to negotiate at the outset of entering his agreement that the activity was one which would assist in his acquisition of a paying job, things might have been different. It is admirable that he sought to improve himself, but he should not have done so at the expense of his WFTD commitments.
30. Mr Linge’s failure, without a reasonable excuse, to attend WFTD in the weeks ending 23 February, 2 and 9 March 2007 is a participation failure, pursuant to subsection 624(1)(f) of the Act.
Appointment – 21 May 2007
31. Mr Linge reportedly told the Salvation Army that he did not attend the appointment because he was doing voluntary work, although voluntary work was not an approved activity in his activity agreement. Mr Linge told me that voluntary work is part of his training. He had to ensure that he did not “fall behind. I pointed out to him that it was only about 2 months beforehand that he had passed his instructor course so it was unlikely that he would, in that time, have “fallen behind”. He said the “Koreans” are always changing things. He said the Academy requires him to be up-to-date.
32. On 31 May 2007, Mr Linge told Centrelink that he did not attend the appointment because he was conducting a private taekwondo lesson from 8.30 am until 9.45 am and he had to take this lesson to obtain a licence to teach taekwondo. He told me that the Salvation Army knew he always had training on Monday morning, so should not have made the appointment at that time.
33. Mr Linge said that he had tried to contact the Salvation Army but they said it was too late. He told me he telephoned that day in order to arrange to come at later time, but was told that the Salvation Army had a busy day and couldn’t fit him in. In cross-examination, he said he had tried to call when he was about half way to training. He was referred to the Centrelink file note that he did not return a reminder call on 18 May. The note also recorded that he missed the appointment at 9.30 am and had not phoned until after that time.
34. Mr Linge told the SSAT that he could not attend this appointment because he had to be present while police checks were carried out to establish his suitability to work with young people. He told the SSAT that the checks commenced at 9.30 am and he had only found out that he needed to attend the Saturday before his appointment (that is, on 19 May 2007). Mr Linge did not provide any evidence to support this claim, or any evidence that it was not possible for him to reschedule the police check, or that he only received notification of the requirement to attend the police check two days before his appointment with the Salvation Army. He said at the hearing that he was now uncertain about exactly when the police checks were.
35. It is unclear which of the two explanations given by Mr Linge is the reason he failed to attend the appointment with the Salvation Army on 21 May 2007, although, from his evidence before me, it is more likely that he was at taekwondo training. If he did not attend because of training, I repeat my observations above that attending taekwondo training was not a term of Mr Linge’s newstart activity agreement. Therefore, despite Mr Linge’s belief that this activity would assist him obtaining employment, it is not a reasonable excuse for not attending the appointment.
36. The letter sent to Mr Linge on 9 May 2007 indicated that there would be a “review [of his] Activity Agreement and change some of the activities if necessary. We will negotiate a new Activity Agreement” and “If you do not attend this appointment or do not enter an Activity Agreement and you do not have a valid reason; this could be a Newstart Allowance participation failure, which may be placed on your record.” It appears from the content of the letter and because many of the activities in the agreement of 6 December 2006 were to cease on 21 May 2007, it was the intention of the Salvation Army to have Mr Linge enter into a new activity agreement at the appointment on 21 May 2007.
37. Pursuant to section 605(2) and (3), I am satisfied that the letter of 9 May 2007 complies with the notification requirements.
38. A person commits a newstart participation failure if they fail to comply with a requirement to enter into a newstart activity agreement (see subsection 624(1)(c) of the Act). Therefore, Mr Linge committed a participation failure under subsection 624(1)(c) of the Act when he failed to attend the appointment with the Salvation Army on 21 May 2007.
39. I find that he did not have a reasonable excuse for not attending, and that this has correctly been recorded as a participation failure.
Assisted Jobsearch – 22 June 2007
40. Mr Linge reportedly told Centrelink that he had a prior agreement with the Salvation Army to leave Jobsearch training at 10 am every Friday because he needed to go to work. He also reportedly said he had to leave early to look after his grandmother [sic]. Centrelink records indicate that Mr Linge had told the Salvation Army that he had to look after his mother (Annexure D). The Salvation Army confirmed that Mr Linge did not have permission to leave assisted Jobsearch early.
41. On 25 June 2007, Mr Linge told Centrelink that he needed to leave assisted Jobsearch at 10 am in order to go home and iron his martial arts uniform in time to get to work at 1 pm. He said he needed to catch the bus at 10.10 am as the next bus to Budgewoi is not until 11.10 am, which does not give him enough time to get to work by 1 pm.
42. Mr Linge told me his session at the Salvation Army was from 10 am to 11.30 am or 10.30 am to 12 pm. He said he had to get home to get his mother lunch and let the doctor in at 2 pm, after which he would go to training. His mother is morbidly obese, and while able to toilet herself, is unable to walk the extra distance to the front door to let the doctor in. The doctor’s time could not be changed because he only does house calls on Friday. Centrelink records indicate that Mr Linge was paid Carer Allowance to look after his mother from 29 August 2005 until 23 January 2007 (Annexure F). Mr Linge was not receiving a Carer Allowance in June 2007, but he told me that that did not mean he did not continue to care for her. He said the bus trip took 25-30 mins. When shown the bus timetable (Exhibit R2) that indicated multiple departures, which would have him arrive home in ample time for the doctor, he said he needed to be home to get his mother’s lunch.
43. Mr Linge had told the SSAT that he had told his case manager that he had to leave early, but she did not agree to this. Mr Linge also said that he had to care for his mother who had become unwell when visiting him.
44. Mr Linge has offered two different explanations for leaving assisted Jobsearch early on Friday 22 June 2007 – the Salvation Army had agreed he could leave early as he had to look after his mother who had fallen ill while visiting him and he had to go home and press his taekwondo uniform in preparation for work that afternoon.
45. It is clear to me that there was no arrangement between Mr Linge and the Salvation Army that he could leave early on Fridays.
46. In relation to Mr Linge’s explanation that he had to care for his mother, there was no evidence to support his claim that his mother fell ill whilst visiting him. I accept that he may care for his mother, but I doubt that she was so ill as to require him to leave assisted Jobsearch early to open the door for the doctor. Further, the bus timetable would also have allowed ample time to get home, make lunch and let the doctor in at 2pm.
47. For these reasons it is more likely, in my view that Mr Linge’s early departure from assisted Jobsearch on 22 June 2007 was because of his desire to attend taekwondo. This explanation is consistent with his previous participation failures and his stated ambitions.
48. I repeat my observations at paragraph 38 above.
49. I do not accept that Mr Linge had a reasonable excuse for leaving assisted Jobsearch early on 22 June 2007. Centrelink was therefore correct in imposing a participation failure.
CONCLUSION
50. I, therefore, find that Mr Linge committed 3 participation breaches in a 12 month period. In those circumstances, Centrelink is entitled to impose an 8 week non-payment period pursuant to section 629 of the Act.
DECISION
51. The decision under review is affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: .................[Sgd]...........................
Ms R Prasad. AssociateDate of Hearing 6 August 2008
Date of Decision 26 August 2008
Appearance for the Applicant Self-represented
Solicitor for the Respondent Ms R Harlock, Centrelink Legal Services
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