Linge; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 744

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 744

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6293

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And BRUCE LINGE

Respondent

DECISION

Tribunal   Ms N Isenberg, Senior Member

Date  26 August 2008

Place  Wyong

Decision   The decision under review is set aside.

..................[Sgd].........................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – cancellation – no reasonable excuse – decision under review set aside.

Social Security Act 1991 – sections 23, 593, 601, 603A, 624, 629 and 630

Social Security (Administration) Act 1999 – section 80

Guide to the Social Security Law - chapter 3.2.7.10

Castleman v Secretary, Department of Social Security (1999) 56 ALD 439

Dudzinski and Secretary, Department of Employment and Workplace Relations and Anor [2006] AATA 743

Jade and Secretary, Department of Education, Science and Training [2007] AATA 1378

Secretary, Department of Education, Employment and Workplace Relations and Ford [2008] AATA 323

Secretary, Department of Employment and Workplace Relations and Lane [2007] AATA 1959

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 21 November 2007, which set aside Centrelink’s decision of 21 August 2007 to cancel Mr Linge’s newstart allowance with effect from 21 July 2007.

ISSUE BEFORE THE TRIBUNAL

2.      Whether the decision to cancel Mr Linge’s newstart allowance from 21 July 2007 was correct.

BACKGROUND

3.      Mr Linge has, apart from two brief periods, received unemployment benefits since 10 January 2000.

4.      I have today found that Mr Linge has been subject to 3 participation failures as a result of his failure to comply with the terms of his newstart allowance activity agreements.  This decision should be read with Linge and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 743 (“Linge”).

5.      On 31 May 2007, Mr Linge entered into an activity agreement with Wesley Uniting Employment which required him, inter alia, to undertake six job search contacts each fortnight and report them to Centrelink. 

6.      Mr Linge lodged an Application for Payment Form (“APF form”) on 17 August 2007 in which he indicated that he had contacted four employers about work in the period 27 July 2007 to 9 August 2007.  Subsequent enquiries of 3 of the employers led Centrelink to the view that Mr Linge had not contacted the employers as he claimed.

7.      As participation failures had already been imposed due to Mr Linge’s failure to comply with the terms of his activity agreements and because he had given Centrelink false information about his job seeking efforts, Centrelink decided that he had failed to satisfy the activity test and cancelled his newstart allowance.

8. That decision was affirmed on internal review, but the SSAT set aside Centrelink’s decision on 21 November 2007. Although the SSAT agreed with Centrelink’s adverse finding, the Tribunal considered that the participation failure regime contained in section 629 of the Social Security Act 1991 (“the Act”) was the more appropriate penalty.

LEGISLATIVE FRAMEWORK

9.      The legislation applicable to the circumstances in this case may be briefly summarised as follows:

·Section 593 of the Act sets out how a person qualifies for newstart allowance. This section requires a person to be unemployed, to satisfy the activity test and to comply with the terms of their newstart activity agreement: subsection 593(1)(f).

·Section 601 of the Act states that a person satisfies the activity test if the Secretary is satisfied that they are actively seeking and willing to undertake suitable paid work in Australia.

·Section 603A provides that a person is not required to satisfy the activity test for a period less than 13 weeks if special circumstances exist beyond that persons control and it would be unreasonable to expect that person to comply with the activity test for that period.

·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.

·Section 80 of the Social Security (Administration) Act 1999 (“the Administration Act”) provides that the Secretary may cancel or suspend a person’s social security payment if the Secretary is satisfied the person is not qualified for payment. Newstart allowance is a social security payment: section 23 of the Act.

DISCUSSION OF EVIDENCE AND FINDINGS

10.     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.  Mr Linge gave evidence and was cross-examined.  I also asked him questions.

11.     Mr Linge attended Centrelink’s Lake Haven office on 17 August 2007 and submitted an APF form.  On the form, Mr Linge indicated that he had contacted four named employers about work in the period 27 July 2007 to 9 August 2007.

12.     On 21 August 2007, Centrelink contacted three of the four employers listed on Mr Linge’s APF form.  All three said they had not advertised any jobs in the previous two weeks with one saying they did not recall Mr Linge, another that they had never heard of him, and the third saying that they always ask for résumés and they did not have a résumé for Mr Linge.

13.     Centrelink contacted Mr Linge on 21 August 2007 to discuss his efforts to obtain a job. 

14.     At the hearing, he said that he objected to having to take any job whether he wants it or not.  He said he was paid for one hour’s work per week teaching taekwondo, but has to be available for the rest of the week to receive instruction from his taekwondo master.  In the past, he had mainly done labouring, but he found that boring.

15.     Mr Linge told me that he was obliged to go through the phone book and contact employers.  He said he only did it so his newstart allowance would not cease.  He said he was not surprised people did not remember or said that there was no job as he would just send in his résumé.

16.     He had told the SSAT that he had asked these employers whether they had any work and had left when they said that they did not.  He also said that it was unlikely these employers would be able to recall every person who had approached them for work.

17.     In either event it was clear to me that Mr Linge has little enthusiasm for work other than as a taekwondo instructor.  His prospects of fulltime employment in that are a slim: see Linge.

18. Mr Linge’s failure, without a reasonable excuse, to contact the requisite number of employers in the fortnight ending 9 August 2007 is a participation failure, pursuant to subsection 624(1)(f) of the Act.

newstart participation failures

19.     Therefore, within a 12 month period, Mr Linge committed four newstart participation failures:

·Failure to attend Work for the Dole (“WFTD”) without a reasonable excuse: see Linge at [20] – [30].

·Failure to attend appointment on 21 May 2007 without a reasonable excuse: see Linge at [31] – [39].

·Early departure from assisted Jobsearch on 22 June 2007 without a reasonable excuse: see Linge at [40] – [49].

·Failure to contact requisite number of employers in the fortnight ending 9 August 2007 without a reasonable excuse.

20. To satisfy the activity test in subsection 601(1), Mr Linge would have to be actively seeking and being willing to undertake suitable employment. This involves looking for work, attending job interviews, accepting job offers and remaining in employment. In Jade and Secretary, Department of Education, Science and Training [2007] AATA 1378 at paragraph 28, the Tribunal found that to “be ‘actively seeking’ paid work, a person needs to be trying, in a sustained way and with diligence and vigour, to secure a paid position with a potential employer”. I am not satisfied that Mr Linge is actively seeking employment because it might interfere with his taekwondo interests.

21.     Mr Linge was recorded as having told an employer during a job interview on 14 December 2006 that he had no motivation and that if he doesn’t like a job he won’t do it: Linge (T17/104 and 109, T45/198).  Mr Linge told the same employer that he could not work past March 2007 as he was starting his own business and that he did not have time for work because he was doing voluntary work full-time: (T34/137) and Linge (T45/199). He told the SSAT that he would not have been able to do this job because it involved catching the bus to arrive in Wyong at 6 am: Linge (T45/198). 

22.     On 22 June 2007 Mr Linge told his employment services provider that if an employer called him back he would refuse the job as he only wants to work as a martial arts instructor: Linge (T60/270). 

23.     As an afterthought, he mentioned in his evidence that he had had a trial of a job in a café in Avoca, and he might take that, providing he can do his training.  He agreed that it would take him about 3 hours each way to travel to the job by public transport.

24. Subsection 601 of the Act requires that newstart allowance recipients not limit themselves to the types of work for which they have a preference. In Castleman v Secretary, Department of Social Security (1999) 56 ALD 439 at [20], the Tribunal held that newstart allowance is not payable to people who undermine their employment prospects by limiting the categories of work they seek. Such selectivity increases the reliance of a job seeker on social security assistance, and in light of Mr Linge’s long history of receiving income support, it is contended that he does not have a good reason to be selective in his pursuit of employment.

25.     Mr Linge has been provided with ample assistance through various job assistance agencies and has been encouraged to actively seek paid work.  However, he has a poor record of attendance at interviews and appointment with the Salvation Army because he gives priority to his taekwondo training and to his mostly unpaid work as a taekwondo instructor.  Mr Linge has left assisted Jobsearch early to attend this unpaid voluntary work or training and he has failed on several occasions to attend WFTD because the hours interfere with his unpaid voluntary work or his training.  Mr Linge’s history demonstrates that he has failed to satisfy the activity test because he is unwilling to cooperate with his government funded employment service provider in assisting him to obtain work (see Dudzinski and Secretary, Department of Employment and Workplace Relations and Anor [2006] AATA 743 at [38]).

26. I do not consider Mr Linge to be actively seeking and willing to undertake suitable paid work. I do not consider the possible job in Avoca to be a realistic proposition, especially given the travel involved, and, more importantly, his professed prioritisation of his taekwondo training. He is, therefore, in breach of section 601 of the Act and I find no special circumstances which might relieve him from the activity test: section 603A. He, therefore, does not qualify for newstart allowance as set out in section 593 of the Act.

27.     In the absence of satisfying the activity test, there is no entitlement to newstart allowance: Secretary, Department of Employment and Workplace Relations and Lane [2007] AATA 1959.

28.     Centrelink policy supports this interpretation.  Chapter 3.2.7.10 of the Guide to the Social Security Law states:

The compliance provisions allow sanctions to be imposed on job seekers who fail to meet specific activity test requirements.  However, it is also a basic qualification provision that a job seeker must be willing and able to satisfy the activity test.  For this reason, where it is clear that a person who is claiming allowance does not intend to meet their activity test requirements, payment should not be granted.  If a job seeker in receipt of income support indicates that they no longer intend to meet their activity test requirements, their payment should be cancelled until the delegate is satisfied that the job seeker does intend to meet their activity test requirements.

29. I have come to the view that cancellation of Mr Linge’s newstart allowance, pursuant to section 80 of the Administration Act, is justified because there is a clear pattern of obstructive behaviour and non-compliance over a long period of time: Secretary, Department of Education, Employment and Workplace Relations and Ford [2008] AATA 323 at [26]. That matter was not dissimilar to Mr Linge’s circumstances.

30.     Mr Linge has demonstrated a persistent failure to satisfy the activity test by failing to comply with the terms of his activity agreements by:

·Failing to attend appointments with his employment service provider.

·Failing to attend WFTD.

·Failing to participate fully in assisted Jobsearch.

·Failing to actively seek employment, particularly all forms of suitable employment as required by subsection 601(1) of the Act.

31.     Mr Linge’s reason for consistently failing to comply with his activity test obligations is his desire to train and work as a taekwondo instructor.  This training has not been approved as an activity that satisfies the activity test.  It is noted that even if this was an approved activity, Mr Linge would still need to be available for, and be willing to, undertake suitable paid work and Mr Linge has demonstrated that he is not. 

32.     I therefore find that Centrelink’s decision to cancel Mr Linge’s newstart allowance from 21 July 2007 was correct.

DECISION

33.     The decision under review is set aside.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:     .....................[Sgd]........................................
   Ms R Prasad, Associate

Date 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