MURPHY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS

[2010] AATA 590

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 590

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1597

GENERL ADMINISTRATIVE DIVISION		)
Re		DAVID MURPHY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member
Ms K Hogan, Member  

Date9 August 2010

PlacePerth

Decision

The Tribunal sets aside the decision under review and substitutes a decision that:

1. under s.43 of the Social Security (Administration) Act 1999 (the Administrative Act) the applicant is subject to an eight week non-payment period of his Newstart Allowance on the basis that he was dismissed from his employment due to misconduct.

2. under s.1158(1) of the Social Security Act 1991 Mr Murphy is not entitled to receive Newstart Allowance whilst he is in jail.

3. under s.42S(4) of the Administration Act serving the non-payment period after Mr Murphy is released from jail would cause Mr Murphy severe financial hardship, therefore he will not be required to serve the non-payment period.

...(SGD) Mr A Sweidan.....

Senior Member

CATCHWORDS

Social Security – Newstart Allowance – non-payment period – severe financial hardship – decision under review varied

LEGISLATION

Administrative Appeals Act 1975 s 41(2)

Social Security (Administration) Act 1999 s 42S, s42Y, s 43

Social Security Act 1991 s 1158(1)

REASONS FOR DECISION

9 August 2010 Mr A Sweidan, Senior Member
Ms K Hogan, Member        

1.      This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made 23 March 2010 which affirmed a decision made by a delegate of the Secretary to the Department of Social Security on 18 December 2009 and a decision by an authorised review officer ("ARO") on 6 January 2010 to affirm the decision that Mr Murphy should serve an eight week non-payment period of his Newstart Allowance (“NSA”) payments as he had been dismissed from his employment due to serious misconduct

2. On 23 April 2010 the Administrative Appeals Tribunal (“the Tribunal”) determined that the implementation of the SSAT decision should be stayed, pursuant to s41 (2) of the Administrative Appeals Tribunal Act 1975.

Evidence

3.      Mr Murphy gave evidence by phone from Hakea prison.

4.      Mr Murphy advised the Tribunal that he anticipated being released from prison the following Friday.

5.      Mr Murphy did not dispute that he was dismissed from his employment due to misconduct.

6.      Mr Murphy gave evidence that he had no assets. He said that prior to his arrest he had commenced a lawn mowing business but that when he was arrested his equipment had been left on the side of the road and had been stolen.

7.      Mr Murphy gave evidence that he has no assets and debts of the following approximate amounts:

i) $2,000.00 to Centrelink;

ii) $1,000.00 to Cash Converters; and

iii) $500.00-$600.00 to Aussie Cash.

8.      Mr Murphy gave evidence that he suffered the following medical conditions:

i) Scheuermann's Disease which causes chronic back pain;

ii) Blindness in left eye; and

iii) Stomach cancer.

9.      As a consequence of these conditions Mr Murphy requires Methadone for pain relief.

10.     His expenses are $4.00 per day for Methadone, $200.00 per week for rent, which leaves approximately $4.00 per fortnight from his Newstart allowance.

11.     He is dependant upon the charity St Vincent De Paul for food.

12.     Mr Murphy’s evidence was not challenged at the hearing by Mr Holt.

13.     Mr Holt questioned whether whilst in prison, Mr Murphy’s treatment expenses are met.  Mr Murphy responded that they were.

Issue

14.     Mr Murphy, having conceded the facts regarding his dismissal for misconduct left the only issue before the Tribunal to be whether serving the non payment period would cause Mr Murphy severe financial hardship.

Legislative Background

15.     The legislative provisions relating to unemployment arising from misconduct are as follows:

“SOCIAL SECURITY (ADMINISTRATION) ACT 1999 - SECT 42S

Unemployment resulting from a voluntary act or  misconduct

(1) A participation payment is not payable to a person for the period mentioned in subsection (3) if the Secretary determines that:

(a) the person is unemployed as a result (whether direct or indirect) of a voluntary act of the person; or

(b) the person is unemployed as a result of the person's misconduct as an employee.

Note: The Secretary may continue the participation payment pending the outcome of an application for review (see sections 131 and 145 of the Administration Act).

Limitations on determination

(2) Despite paragraph (1) (a), the Secretary must not make a determination under that paragraph if the Secretary is satisfied that the voluntary act was reasonable.

Period of non‑payment

(3) The participation payment is not payable to the person for the period (the unemployment non‑payment period) of 8 weeks beginning on:

(a) the day that the person becomes unemployed as a result of the person's voluntary act or misconduct; or

(b) if the person is receiving a participation payment at the time of the voluntary act or misconduct--the first day of the first instalment period that begins after the day the Secretary   makes the determination, if the Secretary considers that day is more appropriate than the day mentioned in paragraph(a).

Note 1: The Secretary may end an unemployment non‑payment period under subsection (4).

Note 2: For the day the Secretary makes the determination, see section 42Y.

Ending unemployment non‑payment periods

(4) The Secretary may end a person's unemployment non‑payment period if:

(a) the Secretary determines that serving the unemployment non‑payment period would cause the person to be in severe financial hardship; and

(b) the person is in a class of persons specified by legislative instrument under subsection(5).

16.     The legislative provisions in respect of the lack of entitlement to Newstart Allowance while Mr Murphy was in Hakea, so far as relevant, provide as follows:

“1158(1) A social security pension is not payable to a person on a pension payday if:

(i) on that payday the person is:

(a) in gaol; or

(b) undergoing psychiatric confinement because the person has been charged with committing an offence; and

(ii) that payday is not the first pension payday and not the last pension payday in the period of imprisonment or confinement.”

Submissions

17. Mr Holt, on behalf of the Secretary, submitted that at the time of the hearing Mr Murphy was in prison and that he was not suffering financial hardship and therefore did not satisfy paragraphs (a) and (b) of subsection 42S(4) of the Administration Act.

18.     Mr Murphy submitted that although he was able to receive medical treatment whilst he was incarcerated he would not be able to afford treatment once he was released from prison.

Findings

19.     The Tribunal finds that Mr Murphy is not entitled to Newstart Allowance during the period of imprisonment and therefore the eight week non payment period does not apply whilst Mr Murphy is imprisoned.

20.     The Tribunal finds that Mr Murphy is subject to an eight week unemployment non-payment period on his Newstart Allowance on the basis that he was dismissed due to misconduct.

21.     The Tribunal finds that having regard to Mr Murphy’s financial circumstances and his need for medical treatment that he would suffer severe financial hardship if he were to serve the eight week non-payment period.

Decision

22.     The Tribunal sets aside the decision under review and substitutes a decision that:

22.1under s.43 of the Social Security (Administration) Act 1999 (the Administration Act) Mr Murphy is subject to an eight week unemployment non-payment period on his Newstart Allowance on the basis that he was dismissed due to misconduct.

22.2under s.1158(1) of the Social Security Act 1991 Mr Murphy is not entitled to receive Newstart Allowance whilst he is in jail.

22.3under s.42S(4) of the Administration Act serving the non-payment period after Mr Murphy is released from jail would cause Mr Murphy severe financial hardship, therefore he will not be required to serve the non-payment period.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member and Ms K Hogan, Member

Signed: ..(sgd) T Freeman.............
  Associate

Date/s of Hearing   6 July 2010
Date of Decision   9 August 2010
Representative for Applicant       Self-represented
Representative for Respondent   Mr A Holt

Centrelink Legal Services Branch