Manikantan and Secretary, Department of Jobs and Small Business (Social services second review)
[2018] AATA 685
•29 March 2018
Manikantan and Secretary, Department of Jobs and Small Business (Social services second review) [2018] AATA 685 (29 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/1959
Re:Kariadath Manikantan
APPLICANT
Secretary, Department of Jobs and Small BusinessAnd
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:29 March 2018
Place:Sydney
The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – Newstart allowance – mutual obligation requirement – Newstart Employment Pathway Plan (EPP) – failure to enter a EPP – disagreement with terms of EPP – suspension – failure to report – cancellation – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 593, 601, 605, 606
Social Security (Administration) Act 1999 (Cth) ss 68, 95
CASES
Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member A Poljak
29 March 2018
The applicant, Mr Manikantan, first received Newstart allowance on 16 December 1996. Since approximately 2004, the applicant has frequently received Newstart allowance, with regular suspensions or cancellations due to overseas absences.
On 7 November 2016, the Department of Human Services (“Centrelink”) decided to cancel the applicant’s Newstart allowance with effect from 8 October 2016 because he failed to report over two consecutive fortnights. The applicant sought an internal review of this decision and on 29 November 2016, an Authorised Review Officer (“ARO”) of Centrelink affirmed the original decision to cancel the applicant’s Newstart allowance.
On 24 March 2017, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) reviewed and affirmed the decision dated 29 November 2016, to cancel the applicant’s Newstart allowance with effect from 8 October 2016. This is the decision under review in these proceedings.
RELEVANT LEGISLATIVE PROVISIONS
Section 593 of the Social Security Act 1991 (Cth) (“the Act”) specifies the requirements that an applicant must satisfy in order to qualify for Newstart allowance. In summary, it provides that a person qualifies for Newstart allowance if the person is unemployed, satisfies the activity test and if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan (“EPP”), the person enters into such EPP; subsection 593(1)(a), (b) and (e). Subsection 593(1)(f) of the Act provides that while an EPP is in force, “the person satisfies the Secretary that the person is complying with the requirements in the plan”.
Pursuant to section 601 of the Act, a person satisfies the activity test if they’re actively seeking and willing to undertake paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
Section 605(1)(a) of the Act allows the Secretary to require a person to enter into an EPP if “the person is receiving, or has made a claim for, a newstart allowance”. Section 605(3) provides:
(3) The Secretary is to give a person who is required to enter into a Newstart Employment Pathway Plan notice of:
(a) the requirement; and
(b) the places and times at which the plan is to be negotiated.
Subsection 68(2) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) provides that the Secretary may give notice that requires a person to inform the Department of, inter alia, a specified event or change in circumstances; or give the Department one or more statements about a matter that might affect the payment to the person of the social security payment.
Section 95 of the Administration Act provides that a social security payment may be automatically cancelled if a person fails to provide a statement under subsection 68(2). Subsections 95(1) and (2) provide:
(1) If:
(a) a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b) the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c) the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
BACKGROUND AND CONSIDERATION
By letter dated 22 August 2016, the applicant was notified that he must attend an appointment with his service provider on 31 August 2016. The letter set out the time and place of the appointment and indicated that the purpose of the appointment included entering into an EPP. Similarly, by letter dated 17 October 2017, the applicant was notified of an appointment scheduled for 25 October 2016.
The applicant attended both appointments on 31 August 2016 and 25 October 2016.
In a Participation Report dated 6 September 2016, it was recorded that on 31 August 2016 the applicant “made it clear that he will only si[g]n job plan if he changed all the writing on job plan”. It is also noted “this is the second job plan client has wish not to sign and we had given client over one week to attend office client stated will not sign…seen client again on 31/08/2016 client again did not want to sign job plan gave client over 96 hours to sign job plan client failed to sign job plan”. In the comment section of the report, the job provider noted a number of EPP alterations requested by the applicant.
In a letter dated 7 September 2016, Centrelink notified the applicant that their records showed that he may not have met one of the conditions for receiving his Newstart payment and if he did not have a reasonable excuse for his actions, he could lose his payment. It notes that if the applicant did not contact Centrelink before the next payment date, his payment may be stopped.
On 3 October 2016, Centrelink sent the applicant a Reporting Statement, which is an information notice under the Administration Act that (relevantly) required him to report on 21 October 2016 for the period 8 October 2016 to 21 October 2016 and on 4 November 2016 for the period 22 October 2016 to 4 November 2016. The Reporting Statement clearly states that if the applicant did not report by 5pm on the reporting date his Newstart allowance would stop.
On 22 October 2016, the applicant’s Newstart allowance was suspended. In a letter of the same date, Centrelink advised the applicant that he must, as soon as possible, contact them to discuss the suspension or his Newstart may be cancelled. This information was verbally relayed to the applicant again on 27 October 2016.
As a consequence of the applicant’s failure to enter an EPP and the subsequent suspension of the applicant’s Newstart allowance on 22 October 2016, he was unable to report as per his reporting requirements until he contacted Centrelink to discuss his suspension and his failure to enter into an EPP.
In a Participation Report dated 29 October 2016, it is noted that on 25 October 2016 the “client advised he does not need to attend office for job search as client can do this at home and client has refused to attend any course to assist client as client believes that client only needs to apply for position in his field and nothing more, client has been unemployed for over 400 weeks, client modify this job plan to his own needs RC advised client unable to sign client job plan client stated that he can make these changes”. Under ‘Provider Comments’, it is noted that the applicant “makes own changes” to EPP and that the job service provider was “unable to sign job plan due to changes”. The applicant was given 48 hours to consider his position however the applicant refused.
The content of the Participation Reports detailed above is consistent with contemporaneous notes taken by the job service provider for both appointments and the applicant’s own correspondence in emails to his job service provider dated 31 August 2016 and 25 October 2016.
While the applicant has said that he was trying to negotiate an EPP that better suited his needs, there is limited flexibility for the applicant to negotiate the terms of an EPP. This is plain from section 606 of the Act which states that a person is required to comply with the terms of an EPP that the Secretary regards as suitable.
Further, in Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268 at [38]-[39] the Federal Court stated the following about what is meant by the term “negotiate” in section 605(3) of the Act in the statutory context:
[38] Central to this trio is Mr Kronen’s conception of what is signified by the words “to be negotiated” in s 605(3). What is clear is that the level of permissible compromise and of required mutual agreement that this formula might otherwise suggest when used in other contexts, is radically curtailed in this statutory setting. Whether one can say that the ordinary meaning of “negotiate” is what is intended here (albeit what can be negotiated is limited by the Act and its purposes), hence the meaning is a question of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (proposition 2); or that its meaning and hence proper construction is contrived by its legislative settings, hence are questions of law: Pozzolanic, 287 (propositions 1 and 4), what is clear is that Mr Kronen misapprehends the latitude the Act gives him. Elblematic of this was his presenting Maxima with negotiation procedures which included referral to an independent panel if any terms could not be agreed.
[39] If Mr Kronen is to qualify for a newstart allowance, he was required, in the circumstances, enter into an activity agreement: s 593(1)(e); he was required to undertake one or more activities that the Secretary regarded as suitable for the person: s 606(1); the terms of the agreement were to be approved by the Secretary. In this scheme, the “right to negotiate” could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions or actions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement.
Instruction 3.2.8.50 of the Guide to Social Security Law (“the Guide”) provides:
Jobseekers are encouraged and should consult with their employment services providers to identify appropriate activities they are interested in, or may prefer to undertake, to meet their mutual obligation requirements. While employment services providers will take these things into account, wherever possible, employment services providers (as delegates of the Secretary of the Department of Employment) have the final decision on what should be included in a jobseeker’s Job Plan. [Emphasis added]
Having careful regard to the applicant’s evidence, I am satisfied that the applicant has failed to meet his requirements under subsections 593(1)(c)-(f) of the Act because he refused to sign an EPP and had no intention of entering into an EPP (which was acceptable to his job service provider).
As a consequence of the applicant’s failure to enter an EPP and the subsequent suspension of the applicant’s Newstart allowance on 22 October 2016, he was unable to meet his fortnightly reporting requirements. Consequently, he failed to report for two consecutive fortnights being the weeks ending on 21 October 2016 and 4 November 2016. In a letter dated 7 November 2016, the applicant was advised by Centrelink that his Newstart allowance had been cancelled from 8 October 2016 (the start of the first fortnightly reporting period) for failure to report. I am not satisfied that there are any special circumstances in this matter which prevented the applicant from contacting Centrelink to discuss his suspension and to ensure that he reported on time as per his reporting requirements.
For the above reasons, I am satisfied that the decision to cancel the applicant’s Newstart allowance from 8 October 2016 was correct.
DECISION
The decision under review is affirmed.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 29 March 2018
Date(s) of hearing: 30 August 2017 Applicant: In person Solicitors for the Respondent: T Galvin, Department of Human Services
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