Lui and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 646

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 646

ADMINISTRATIVE APPEALS TRIBUNAL      )

) No 2008/0583

GENERAL ADMINISTRATIVE DIVISION		)
Re		VILI LUI

Applicant

And SECRETARY DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date11 July 2008

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, the Decision under review is AFFIRMED.

..................[sgd.............................

M D Allen
  Senior Member

CATCHWORDS

NEWSTART ALLOWANCE – review of decision by social security appeals tribunal affirming prior determination to impose an 8-week non-payment period of newstart allowance upon the applicant – activity agreement – three participation failures – whether applicant had a reasonable excuse for not signing new activity agreement – decision under review affirmed

LEGISLATION

Social Security Act (1991) subsections 605(2), 624(1) and 629(1)

Administrative Appeals Tribunal Act (1975) section 37

Social Security (Administration) Act (1999) section 5

Acts Interpretation Act (1901) sections 28A and 29(1)

REASONS FOR DECISION

11 July 2008           Senior Member M D Allen 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         [sgd]  Mwela Kapapa         
           .................................................

Associate

Date of Hearing  11 July 2008

Date of Decision  11 July 2008

Solicitor for the Applicant            Self-represented 

Solicitor for the Respondent       Centrelink Legal Services Branch

EXTRACT OF TRANSCRIPT OF PROCEEDINGS                 

MR ALLEN: By application made 14 February 2008, the Applicant sought review of a decision by a Social Security Appeals Tribunal that affirmed a prior determination to impose an 8-week non-payment period of Newstart allowance upon the Applicant, that penalty being imposed because of a third participation breach in the period of 12 months. Subsection (1) of section 624 of the Social Security Act 1991 reads inter alia:

A person commits a Newstart participation failure if the person

(a) fails to comply with a requirement

(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii) that was reasonable; and

(iii) the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a Newstart Participation Failure; or

(b) fails to satisfy the activity test; or

(c) fails to comply with a requirement to enter into a Newstart Activity Agreement; or

(d) fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person.

Section 629 of the SSA then goes on to provide that

(1) A Newstart allowance is not payable to a person, for the period of eight weeks starting in accordance with section 630, if the person:

(a) commits a Newstart participation failure (the repeated failure), having committed Newstart participation failures (the earlier failures) on two or more other occasions during the period of 12 months preceding that failure.

In this matter there are three failures alleged against the Applicant start first on 12 January 2007 when he did not attend an appointment notified to him by letter dated 5 January 2007. A copy of that letter is at document T19 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The document clearly sets out the penalties which may be imposed should the Applicant fail to attend the appointment. It is common ground that the Applicant did not attend the appointment and the reason he did not attend was that he did not obtain or receive the letter notifying him of the appointment. That letter was sent to him at the address Centrelink had for the Applicant, namely 26 Ann Street, Lidcombe in the state of New South Wales.

The evidence is that the Applicant had been evicted from those premises pursuant to an order of the New South Wales Consumer Trader and Tenancy Tribunal on 13 December 2006. He conceded in evidence that at no time did he notify Centrelink or his job search provider that he had had a change of address. Section 5 of the Social Security (Administration) Act 1999 provides inter alia that notices can be served by post. Section 28A of the Acts Interpretation Act 1901 states inter alia:

For the purposes of any Act that requires or permits a document to be served on a person, whether the expression serve, give or send, or any other expression is used, then unless the contrary intention appears, the document may be served:

(a) on a natural person;

(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document.

Section 29 subsection (1) of the Acts Interpretation Act 1901 then goes on to state:

Where an act authorises or requires any document to be served by post, whether the expression serve or the expression give or send or any other expression is used, then unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Applying those sections, together with section 5 of the Administration Act, it seems clear that the document is deemed to be delivered to the Applicant at a time prior to the appointment date 5 January 2007 and his failure to attend was without a reasonable excuse. This is particularly so as was stated previously, he conceded he had never notified Centrelink or the employment agency of a change of address. The second breach occurred on 5 February 2007 when the Applicant did not attend job search training. On 19 January 2007 he had signed an Activity Agreement. That agreement required him to attend onsite job searching, Tuesdays from 9 am and Wednesdays from 11 am at the office of Adult Multicultural Education Services.

The evidence is that on 5 February 2007 which day was in fact the Monday, the Applicant did not attend.  However, the agreement went on to say that he would attend JST courses and activities with AMES Employment from 19 January to 9 February 2007.  So clearly that was a breach of that clause of the agreement.  I understand that the Applicant was in fact attending a course at the University of New South Wales at the time, but at no stage had he sought permission to excuse himself from the activities to be undertaken and consequently I find that he has no reasonable excuse. 

The third matter followed a request to the Applicant on 31 October 2007 to sign a new Activity Agreement - but before moving to that, I just wish to say something about the second breach. I was particularly concerned in that the document which has been produced in the documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is unsigned. In other words, there is no direct evidence whatsoever that the Applicant entered into the agreement. In cross-examination, however, he did state:

“I think to participate in programs” –

Being programs at the job search provider,

“you have to sign an Activity Agreement.  I do remember participating in programs at AMES Employment.”

At paragraph 29 of the decision of the Social Security Appeals Tribunal, it is noted that the Applicant said he signed an Activity Agreement with AMES Employment, on 19 January 2007.  In cross-examination he said, “I told the SSAT I had signed as that was the case”, therefore although the document before the Tribunal is unsigned, I am prepared to apply the presumption of regularity in this matter omnia rite essa acta, and hold that the document was in fact signed by the Applicant.  So far as the third breach is concerned, section 605 of the SSA subsection (2) states that:

The secretary may require a person who has entered into a Newstart Activity Agreement to enter into another such agreement instead of the existing one.

The letter sent to the Applicant is document T 35 of section 37 documents. According to the Applicant’s evidence today, when he attended upon the required appointment, he asked why he had to enter into a new agreement and the person with whom he was dealing stated or made reference to an intensive job search network. It is then noted that the Applicant declined to enter into a new agreement because he had a current Activity Agreement which extended to February 2008.

In evidence, the Applicant said, “I told her the Activity Agreement I had signed was valid, I had complied with all requirements of that agreement.”  The question therefore arises whether the Applicant had a reasonable excuse for failing to sign the new Activity Agreement.  As stated previously subsection (2) of section 605 SSA states that the secretary may require a person who has entered into a Newstart Activity Agreement to enter into another such agreement.  It strikes me that where the Applicant says in effect, that he has a reasonable excuse, he has made a mistake in that there is a fundamental difference between a mistake as to existing facts and a mistake as to the law. 

Section 605 required the Applicant, if required to enter into a new agreement and although he may have quite honestly believed that he should not be required to do so, that was a mistake of law, not a reasonable excuse. As there were three breaches of the provisions of section 624 subsection (1) SSA, section 629 subsection (1) SSA applies and the decision under review is affirmed.

END OF EXTRACT