MacArthur and Secretary, Department of Jobs and Small Business (Social services second review)

[2018] AATA 236

MacArthur and Secretary, Department of Jobs and Small Business (Social services second review) [2018] AATA 236 (19 February 2018)

Division:GENERAL DIVISION

File Number:           2017/4398

Re:Robert MacArthur

APPLICANT

AndSecretary, Department of Jobs and Small Business

RESPONDENT

DECISION

Tribunal:Senior Member D R Davies

Date:19 February 2018

Place:Brisbane

The Application for review is successful and the decision of AAT1 under review is set aside.

..................................[SGD]......................................

Senior Member D R Davies

CATCHWORDS

SOCIAL SECURITY – newstart allowance – where decision made not to pay applicant newstart allowance for 26 weeks - whether applicant reduced employment prospects by moving to a new place of residence – decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth) s 634

CASES

Secretary Department of Family and Community Services and Pitkin [2005] AATA 532

Secretary Department of Employment and Workplace Relations and Trajcevski [2005] AATA 415

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member D R Davies

19 February 2018

INTRODUCTION

1. This is an Application for the review of a decision of the Administrative Appeals Tribunal – Social Services and Child Support Division (“AAT1”) dated 26 June 2017 affirming the decision of the Department of Human Services (“the Department”) not to pay Robert MacArthur (“the Applicant”) Newstart Allowance (“NSA”) for 26 weeks because he had reduced his employment prospects by moving to a new place of residence.

2. The Respondent advised the Tribunal that the Secretary Department of Human Services administers the policy of the legislation on behalf of the Secretary Department of Jobs and Small Business which was previously the Department of Employment.

   ISSUES

3. The issues to be determined by the Tribunal are:

   ·Did the Applicant reduce his employment prospects when he moved from Gailes to Howard on 6 February 2017?

   ·If he did reduce his employment prospects by this move, did he have a sufficient reason for moving such that a 26 week non-payment period should not be applied?

   LEGISLATION

4. The relevant legislation is contained in s 634 of the Social Security Act 1991 (“the Act”). The relevant provisions of s 634 are:

   “634     Move to an area of lower employment prospects

   (1)  Subject to ss1(b) and (2), if, in the opinion of the Secretary a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, a Newstart allowance is not payable to the person for 26 weeks….

   (3)For the purposes of ss(1), a person has a sufficient reason for moving to a new place of residence, if and only if, the person:

   (a)     moves to live with a family member who has already established his or her residence in that place of residence; or

   (b)     moves to live near a family member who has already established residence in the same area; or

   (c)     satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member;

   (d)     satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example the person has been subjected to domestic or family violence in the original place of residence)”.

5. The Application of ss 634(1) is further clarified by the Department’s Guide to Social Security Law (“the Guide”) in which item 3.2.1.35 states that:

   “DHS compares unemployment rates between the person’s previous permanent address and their new address.  DHS may consider applying a preclusion period if the jobseeker moves to an area with an unemployment rate that is more than 2 percentage points higher than the place that they have moved from (e.g. from 5% to 7%), unless they have a sufficient reason for the move……..or the Secretary is satisfied that their employment prospects have not decreased despite the comparative unemployment rates….
   To compare the unemployment rates of two areas, the decision maker must use the DHS on-line application known as the MALEP tool.  The MALEP tool uses the National Localities Index (ABS Catalogue No. 1252) to translate the suburb/town/postcode into a Statistical Local Area (SLA).  It then uses the Small Area Labour Markets (Department of Employment) publication to extract the unemployment rate and labour for size of the SLA.

   The MALEP tool provides a statistical comparison of the two locations.  Consideration of the evidence provided by this tool is only part of the MALEP determination.  Decision makers must also take into account factors such as a person’s skill, local industry needs, seasonal work, vacancy rates and skill shortages.  The information provided by the MALEP tool must be taken into account but can be disregarded whereas evident from other available information, that, despite the respective unemployment rates of the two areas, the jobseeker has or has not lowered their employment prospects”.

6. It should be noted that this Tribunal is not bound by these departmental guidelines.  However, it does have regard to them in order to promote consistency in decision making unless there is good reason to do otherwise.

   BACKGROUND

7. The Applicant was in receipt of a carer payment until 6 February 2017, at which point that payment was cancelled and he was granted NSA.[1]

   [1] Exhibit 2, Secretary Statement of Issues Facts and Contentions, Attachment A.

8. On 7 February 2017, the Applicant advised the Department that he had moved to a new location on 6 February 2017.  His previous address is recorded as 18 Ashworth Street, Gailes 4300 (“the Gailes address”) and his new address is 2 Martha Street, Howard 4659 (“the Howard address”).  The Applicant’s stated reason for moving is “to live near friend, no family here”.[2]

   [2] Exhibit 1, Tribunal Documents, T5, p19.

9. On 8 February 2017, a delegated officer of the Department made a decision that the Applicant would be subject to a 26 week non-payment period because his move to the Howard address had lowered his employment prospects (“the original decision”).  The officer notes “Cus chooses not to live anywhere else.  He advised that he only knows one person (Sheridan Laskey in Howard)”.[3]

   [3] Exhibit 1, Tribunal Documents, T5, p18.

10. A Departmental record of the same date identifies that a MALEP (Move to Area of Lower Employment Prospects) test was performed with the following results:[4]

    [4] Exhibit 1, Tribunal Documents, T14, p48.

Moving from Gailes 4300
Workforce	1127700
Unemployment rate	4.7%
Moving to Howard 4659
Workforce	1721
Unemployment rate	10.3%

1. On 13 February 2017, the Applicant requested a review of the original decision.[5]

   [5] Exhibit 1, Tribunal Documents, T14, p50.

2. On 14 February 2017, Sheridan Laskey provided a signed statement declaring the Applicant had been resident with her for “the last week as he had nowhere else to go & was being abused & used by the last person he resided with”. Ms Laskey also writes that she intended to have the Applicant as her carer and was awaiting the necessary forms.[6]

   [6] Exhibit 1, Tribunal Documents, T6, p21.

3. On 15 February 2017, the Applicant provided a written statement concerning the events leading to his moving from the Gailes address to the Howard address which notes:[7]

   “I was a carer for Simon Garside of 18 Ashworth Street, Gailes Qld 4300.

   Simon kicked me out of the house on the 6-2-2017.  His reason for kicking me out was because I went to see an old friend I haven’t seen for 15 years and I was not there to get his alcohol and his pot (cannabis).  This had left me homeless and broke after asking my family members to help and they all basically laughed at me and said they would not help.

   I am now staying in Howard with another friend Sheridan Laskey at 2 Martha Street, Howard.  Sheridan is the only person I know who was willing to take me in.  Sheridan has been told by her doctor that she needs a carer so I am willing to become her carer if allowed to do so.

   After being abused by Simon every day I know Sheridan will treat me with respect as will I treat her with respect.

   If Sheridan did not take me in I would have been living on the street.  It was not by choice I moved up to Howard and it was more of a necessity”.

   [7] Exhibit 1, Tribunal Documents, T7, p23.

4. On 28 February 2017, an Authorised Review Officer (“ARO”) of the Department affirmed the original decision.[8]

   [8] Exhibit 1, Tribunal Documents, T10, p27.

5. On 8 March 2017, the Applicant lodged an Application with the AAT1 for review of the ARO decision.[9]

   [9] Exhibit 1, Tribunal Documents, T11, p32.

6. On 26 June 2017, AAT1 affirmed the decision under review.[10]

   [10] Exhibit 1, Tribunal Documents, T2, p3.

7. On 26 July 2017, the Applicant lodged an Application for further review of the decision to apply a 26 week non-payment period to his NSA payment.[11]

   [11] Exhibit 1, Tribunal Documents, T1, p1.

   EVIDENCE

8. The evidence before the Tribunal is contained in the following Exhibits which were admitted:

   1Exhibit 1 – Tribunal Documents

   2Exhibit 2 – Respondent’s Statement of Facts Issues and Contentions

   3Exhibit 3 – Australian Bureau of Statistics (ABS) Data for Brisbane LGA

   4Exhibit 4 – ABS Data for Fraser Coast LGA

   5Exhibit 5 – ABS Data for Ipswich LGA

   6Exhibit 6 – Email from Department of Employment dated 17 January 2018

   7Exhibit 7 – Centrelink employment separation certificate

   8Exhibit 8 – Centrelink Job Plan

   9Exhibit 9 – Participation Information

9. In addition, the Applicant attended the hearing by telephone and gave oral evidence.  The representative for the Respondent made submissions to the Tribunal.

10. It should be noted that Exhibits 3-9 inclusive were only provided to the Tribunal late in the afternoon of the day before the Hearing and they were posted by the Respondent to the Applicant on the same date.  The Applicant had not received them in the post at the time of the Hearing and had not had the opportunity to consider those documents.  It should be noted that none of those exhibits were considered nor put before any of the previous decision makers in this matter.  Because this matter relates to an Application for NSA in February 2017, I decided to proceed with the Hearing whilst allowing the Applicant a further period of 2 weeks after the Hearing to make any further written submissions in relation to those exhibits or regarding the matters arising during the Hearing.  Subsequently, the Applicant advised that he did not wish to make any further submissions.

11. It is apparent that both the ARO in her decision[12] and AAT1 in its decision relied on the MALEP tool to establish that the Applicant had reduced his employment prospects by moving from Gailes to Howard.  Although AAT1 did also note that:

    “Mr McArthur provided no evidence about local skill shortage or other factors that may have improved his job prospects by moving.  There is no evidence that Mr Howard (sic) was undertaking a specified activity or had been exempted from the requirement about moving and reducing his job prospects”.

    In relation to that statement it should be noted that the legislation does not impose any onus on the Applicant to provide evidence that his job prospects had been improved by moving.  The legislation only requires a determination as to whether the person’s job prospects have been reduced or not by moving to the new area.

    [12] Exhibit 1, Tribunal Documents, T2, p5.

    Applicant’s Evidence

12. As I have mentioned, the Applicant gave oral evidence to the Tribunal at the hearing.  Whilst this evidence was given by telephone, the Applicant impressed me that he was frank and honest in his evidence.  The Applicant gave evidence that he has a level 3 qualification as an arborist and horticulturist but that he last used his skills as an arborist and horticulturist about 20 years ago.  He said that he also has a ticket to operate a chainsaw and a stump grinder.  He said that he does not have, and has never had, a motor vehicle licence.  As a consequence, he says that he is reliant on public transport and private transport from friends.  He said that there were three people in his local area in Howard who were available to give him transport if required on a regular basis.

13. In relation to his employment history, the Applicant said that from 2008 until 2013 he was the fulltime carer for his ex-wife and during that period he received the carer’s benefit.  He said that for about 10 to 15 years before that he was also the carer for his ex-wife and he did not have any employment during that period.  He said that after he finished as carer for his ex-wife, he had a job as a builder’s assistant on Macleay Island for a period of about 6 months which ceased about 3 years ago.  He said that after this he lived with Simon Garside in Gailes for about 8 to 10 months.  At first he was trying to find a job but then Garside wanted him to be his carer and he became Garside’s fulltime carer.  He was in receipt of the carer’s benefit while he was looking after Garside.

14. The Applicant said that he has been in receipt of NSA, the subject of the present Application, since February 2017.  Prior to that, he was in receipt of NSA for about 1.5 years, a long time ago.

15. The Applicant gave evidence that Garside was abusive to him every day and would tell him to get out every second day.  He said that the abuse took the form of verbal abuse with swearing and abusive language.  He said that once or twice, Garside had “shaped up” to him, but nothing came of it.  He said that he left Gailes because Garside became very angry with him when he wasn’t there to go to the local pub for Garside and Garside then told him to get out, which the Applicant then did.  He said that he had met Sheridan Laskey on Macleay Island about 8 years ago and, when he was kicked out by Garside, she said that he could come up to Howard and stay with her and look after her as she needed a carer.  The Applicant went on to say that after he got to Howard she had changed her mind and he has not become her carer.

16. The Applicant said that he is not currently employed.  He said that he does not know how many job opportunities there are in Howard but there is a local pub, supermarket, sawmill, mower centre, landscaper and plant nursery.  He also said that the Hervey Bay area was about 30 minutes away and Maryborough was about 20 minutes away from Howard and they are both much larger areas than Howard.  He said that if he got a job in those places he would be able to get there either by transport with a friend or by public transport.

17. When questioned by the Respondent’s representative, the Applicant acknowledged that Gailes was a suburban area and, as Garside did not have a car, there was public transport available for the Applicant to either Brisbane or Ipswich.  He also acknowledged that there were more jobs in Ipswich and Brisbane but when Garside kicked him out he had nowhere else to live in that area.  He acknowledged that obtaining shift work would be more difficult if he didn’t have access to public transport.

18. The Applicant said that since he moved to Howard he has been seeking employment and had visited and given his resume to a number of businesses including the nurseries, sawmill, landscaper, hotel, takeaway shop, coffee shop and lawnmower centre.  He said that the sawmill was a little interested in him and he had been back there a couple of times, but nothing had come of it as yet.  He said that he goes to Sarina Russo in Pialba once a fortnight in relation to his Employment Pathway Plan, which is Exhibit 8.  In accordance with that plan, he is to undertake training with the Sarina Russo Institute from 7 December 2017 to 31 May 2018 for a Certificate in Hospitality.  He said he is starting that course online in a couple of weeks.  In relation to this, the Respondent advised the Tribunal that the Job Plan[13] was uploaded on the Centrelink system in the first week of January but it is not known when it was prepared and it is not dated.

    [13] Exhibit 8.

    RESPONDENT’S EVIDENCE AND SUBMISSIONS

19. The Respondent relies on the documents in the Tribunal Documents[14] and the additional documents tendered as Exhibits 3-9 inclusive as well as its Statement of Facts Issues and Contentions[15].

    [14] Exhibit 1, Tribunal Documents.

    [15] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions.

20. The Respondent’s representative at the Hearing acknowledged that, prior to the submission of the documents being Exhibits 3-9 inclusive the day before the hearing, the only documents on the Respondent’s records relating to the reduction in the Applicant’s employment prospects refer to the MALEP test which shows a higher unemployment rate in Howard than in Gailes.  Whilst the Respondent submitted that its decision makers in the Fraser Coast area take local factors into account, its representative conceded that there is no document in its records showing that its decision-makers took other factors into account.  The Respondent further conceded that there is no document in the Department’s file records showing that anything other than the MALEP test was considered by the previous decision makers to determine whether the Applicant’s employment prospects were reduced by his moving from Gailes to Howard.

21. As previously mentioned, the MALEP test results[16] show that at the relevant time the unemployment rate in Gailes was 4.7% and in Howard it was 10.3%.  As this was more than a 2 percentage point adverse difference, in accordance with the Guide it was determined that the Applicant’s employment prospects were reduced by moving to Howard.

    [16] Exhibit 1, Tribunal Documents, T14, p48.

22. At the Hearing, the Respondent relied on the additional documents in Exhibits 3-9 inclusive as well as the evidence given by the Applicant to establish the factors which should be considered by the Tribunal in determining whether the Applicant’s employment prospects were reduced by his moving to Howard.

23. The Respondent referred to and relied on a number of statistics in the ABS data in Exhibits 3, 4 and 5:

    ·The data at page 10 of each of those Exhibits showing the percentage of people in each of those regions who are on NSA and who have been receiving it for more than 365 days:

    oFraser LGA – 2016 – 74.5%

    oIpswich LGA – 2016 – 71.9%

    oBrisbane LGA – 2016 – 67.6%

    oIt was submitted that this demonstrates that in the Fraser Coast region, which includes Howard, a higher percentage of the people receiving NSA are on it for more than a year than in Ipswich or Brisbane.

    ·The data at page 10 of each of those Exhibits showing the weekly income levels of persons over 15 years in the 2016 Census in each of those regions and particularly the percentage receiving the lowest weekly income of $1 - 499.00 per week.

    oFraser Coast LGA - 41.6%.

    oIpswich LGA – 27.9%.

    oBrisbane LGA – 23.8%

    oIt was submitted that there are a larger number of people in the Fraser Coast region on the lowest income level because they are in jobs with lower skill levels.  It was submitted that the Applicant was in that lower skill job market and there was more competition for lower skill jobs in Fraser Coast than in Ipswich or Brisbane.

    ·The data at page 7 of each of those Exhibits showing the proportion of employed persons in various industries at the 2016 Census which showed that the industries in the Fraser Coast with the highest proportion of employment were:

    oConstruction, retail trade, accommodation and food services, education and training and healthcare and social assistance. 

    oIn Ipswich, the industries with the highest proportion of employed persons were manufacturing, construction, retail trade, public administration and safety, education and training and healthcare and social assistance.

    oIn Brisbane, they were manufacturing, construction, retail trade, professional and scientific services, education and training and healthcare and social assistance.

    ·It was submitted that this data shows that there are likely to be more unskilled jobs in Brisbane and Ipswich in industries which the Applicant could access than in the Fraser Coast.

    ·I do however note that there is considerable overlap in those industries which are common to each of these regions including construction, retail, education and training and healthcare and social assistance.  Unsurprisingly, given its coastal location with tourism, Fraser Coast has a higher proportion in accommodation and food services.

1. The Respondent submitted that the email in Exhibit 6 indicates that there is no reliable data for unskilled work in each of those regions and relies on the unemployment data for 2017 referred to in that email for the Ipswich Statistical Area and the Wide Bay Statistical Area, which respectively include Gailes and Howard.  It was submitted that this data shows that the Wide Bay had a higher unemployment rate than Ipswich.  Whilst that is correct, I note that the average difference for the first 11 months of 2017 was 1.2%, with Wide Bay being higher.  I note that this is less than the 2% threshold referred to in the Guide.

2. The Respondent submitted that based on the Applicant’s evidence, because he was dependent on public transport to get to work, public transport was more accessible in Brisbane and Ipswich than in Howard.  Therefore, he would have access to a wider range of suitable jobs in Gailes that in Howard.

3. The Respondent further submitted that, because the Applicant was dependent on public transport and transport from friends, he would have difficulty accessing jobs that were outside a 9 to 5 working day or which involved shift work.  It submitted that limitations which access to transport placed upon him reduces his employment prospects in Howard when compared to Ipswich.

4. I do however note that the Applicant’s evidence was that Maryborough was 20 minutes away and Hervey Bay 30 minutes away from Howard, and both were accessible by public transport.  The Applicant also said that if he got a job in either of those locations, he would be able to get to work.  He said that when he was living in Gailes, Simon Garside did not have a car and he was dependent on public transport.  Whereas in Howard he has three friends, including Ms Laskey, who are able to provide him with private transport.

5. The Respondent’s representative accepted that there was no evidence before the Tribunal that the Applicant has been unable to obtain employment in either Gailes or Howard because he was unable to access transport.  However, it submitted that the differences in access to public transport in each of those places is a factor to be considered.

6. The Respondent submitted that there is no statistical data available on job vacancies or job seekers for either the Gailes or Howard areas.  However, it submitted that the ABS data demonstrates that the unemployment rate for the Fraser Coast region is higher than that for each of Ipswich and Brisbane.  It submitted that the available ABS data also demonstrates that there is likely to be more competition for the lower skill jobs suitable for the Applicant in the Fraser Coast area than in each of Ipswich and Brisbane.  It was submitted that, in addition to the unemployment data, these were relevant considerations that the Applicant’s move to Howard had reduced his employment prospects.

   CONSIDERATION

7. In Secretary Department of Family and Community Services and Pitkin,[17] the Tribunal stated:

   At para 61:

   ”The term ‘employment prospects’ has no special meaning under the Act and can be understood to mean in common usage the probability or likelihood of or potential for obtaining paid work. The term, in the statutory context in which it is used, does not refer to all available work, whether paid or unpaid, or suitable or unsuitable. It refers only to employment in paid work that is not unsuitable”.

   At para 61:

   “Following Castleman,[18] paid work that is unsuitable, or in the converse, that is suitable, to be undertaken by a person is only described by the limits of physical or mental capacity, but also by the extent of the person’s skills, training, qualifications and experience or capability”.

   At para 65:

   “In order to find that a person has reduced his or her employment prospects by moving into a new place of residence, it is necessary to determine, whether as a matter of probability, the person reduced the likelihood of obtaining paid work that was not unsuitable by so moving”.

   [17] [2005] AATA 532.

   [18] Castleman v Secretary Department of Social Security (1999) 29 AAR 458.

8. There are a number of previous decisions of the Tribunal, including Re Secretary Department of Employment and Workplace Relations and Trajcevski,[19] in which it was noted at para 39 that in this line of cases, the Tribunal has “rejected taking a purely statistical approach which looks at only the relative employment statistics in the two locations to determine whether a person has reduced his or her employment prospects.  An analysis of the individual situation is important in each case”.

   [19] [2005] AATA 415.

9. In Trajcevski, the Tribunal was considering whether a move from Melbourne to Port Augusta lowered Mr Trajcevski’s employment prospects.  At para 40 it stated:

   “The Department relies on a broad statistic to argue that ‘objectively’ the Respondent’s prospects of work have reduced by moving to Port Augusta.  The Tribunal does not accept that a broad statistic should be determinative of this matter.  The statistic plays no regard to individual groups of people when finer and more specific statistical data, which the Department acknowledges is not available to it, may produce a different result.  The delegate appears to have paid little regard to the individual circumstances of the Respondent which must be considered in this case”.

   At para 45 the Tribunal stated:

   “The respondent belongs to a specific group of long-term unemployed men over 50, unskilled and in addition have language barriers to employment.  These are people with very significant barriers to employment wherever they reside and the statistic quoted does not look at specific groups.  The Tribunal considers that the data is perhaps applicable to the average job seeker without barriers to employment.  The respondent is not in this category”.

10. It is apparent that the previous decision-makers in this matter within the Department, the ARO and AAT1 were solely or largely influenced by the MALEP tool statistics as to the Applicant’s relative employment prospects in each of Gailes and Howard. The Respondent’s Guide, to which I have previously referred, states that whilst the MALEP tool provides a statistical comparison of the two locations, consideration of the evidence provided by this tool is only part of the MALEP determination.  The Guide goes on to state:

    “Decision makers must also take into account factors such as a person’s skills, local industry needs, seasonal work, vacancy rates and skill shortages”.

11. Apart from the MALEP test results, in this case the Applicant relies on broad ABS data to establish that the unemployment rate in the Fraser Coast region is higher than those for each of the Ipswich and Brisbane regions.  That ABS data also indicates that the industry groups which employ most persons in each of those regions are slightly different, but as I have previously noted, many of them are common to each of those regions.  I have also previously noted that the comparative unemployment rates referred to in Exhibit 6 for Ipswich and Wide Bay for the 2017 year, show that the Wide Bay area was slightly higher for that period by an average of 1.2% per month, which is lower than the Respondent’s MALEP tool threshold difference of 2%.

12. The Respondent also relies on other evidence from the Applicant that he is unskilled and reliant on public transport which limits his ability to access what is said to be a smaller pool of unskilled jobs in the Fraser Coast region than in the Brisbane or Ipswich region.

13. I consider that, in the present case, the Applicant’s circumstances are not dissimilar to those described in Trajcevski[20] although, in this case, the Applicant does not have any language barriers.  The Applicant is now 54 years of age.  In the past 20 years, he has only had one period of 6 months of paid employment as a builder’s assistant.  That work finished some 3 years ago.  During that period, he has mostly been engaged as a carer of his ex-wife or other persons in respect of which he has received carer benefits.  He is dependent on others to provide him with accommodation and private transport.  Whilst he has some qualifications as an arborist and to operate a chainsaw and stump grinder, he is otherwise unskilled.  He is at a substantial disadvantage on the open labour market.  His employment history suggests that he will have difficulty obtaining employment wherever he resides.

    [20] [2005] AATA 415.

14. The Applicant has given evidence that, in accordance with the Job Plan,[21] he is about to undertake a course with Sarina Russo Institute for a Certificate III in Hospitality.  He has also given evidence that if he can obtain a job in the Howard, Maryborough or Hervey Bay areas, he will be able to get to that employment either by public or private transport.   He has given evidence that he has approached a number of businesses in the Howard area seeking employment and the local sawmill expressed some interest in him, although he has not yet been offered a job there.

    [21] Exhibit 8.

15. I am not persuaded by the Respondent’s general statistical evidence that it is more probable than not that the Applicant reduced his employment prospects by moving from a place of residence in Gailes to a new place of residence in Howard.

16. Having regard to the evidence of the Applicant’s circumstances to which I have referred, I am not satisfied as a matter of probability that the Applicant reduced his employment prospects by moving his place of residence from Gailes to Howard.  It follows therefore that this issue is resolved in the Applicant’s favour.

17. It is not necessary for me to consider the issue of whether the Applicant had sufficient reason for his move to Howard.

18. I am satisfied that a 26-week non-payment period should not be applied to the payment of NSA to the Applicant.

    CONCLUSION

19. I find that the Applicant did not reduce his employment prospects by moving his place of residence from Gailes to Howard.  Accordingly I find that the Respondent should not apply the non-payment period of 26 weeks to the payment of NSA to the Applicant.

20. The Application for review is successful and the decision of AAT1 under review is set aside.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D R Davies

................................. [SGD].......................................

Associate

Dated: 19 February 2018

Date of hearing:	18 January 2018
Applicant:	By phone
Advocate for the Respondent:	Ms Maleah Underhill
Solicitors for the Respondent:	Department of Human Services