Nicholas Krivoshev and Secretary, Department of Employment
[2015] AATA 341
•19 May 2015
[2015] AATA 341
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4852-4853
Re
Nicholas Krivoshev
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 19 May 2015 Place Sydney The decisions under review are affirmed.
........................[sgd]................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – allowances – newstart allowance – reconnection failure – penalty for reconnection failure – cancellation of newstart allowance – failure to re-engage with disability service provider – decisions affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 593, 605
Social Security (Administration) Act 1999 (Cth) ss 42H, 42L, 42U, 42UA, 80
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1)
REASONS FOR DECISION
Dr Ion Alexander, Member
19 May 2015
BACKGROUND
In this proceeding, Mr Krivoshev seeks review of the Social Security Appeals Tribunal (SSAT) decision on 20 August 2014 to affirm the decision by Centrelink that he had committed a reconnection failure on 24 February 2014 with the application of a penalty of $509.50 and the decision to cancel his newstart allowance on 26 March 2014.
At the hearing the Tribunal heard another application and reserved its decision. Shortly after the hearing the Tribunal considered it necessary to make directions that required further materials to be filed in relation to this other application and it was foreshadowed that the hearing would be resumed. Since that matter has subsequently been resolved between the parties the Tribunal notes that it was not necessary to resume its proceedings.
ISSUES
Section 593 of the Social Security Act 1991 (the Act) sets out the qualification criteria for payment of newstart allowance. One of the criteria to qualify for newstart allowance is to enter into a Newstart Employment Pathway Plan (EPP), if required. Pursuant to section 605(3) a person who is required to enter into an EPP is to be given notice of the requirement to enter into an EPP and the places and times at which the plan is to be negotiated.
Division 3A of Part 3 of the Social Security (Administration) Act 1999 (the Administration Act) deals with compliance with a recipient’s obligations in relation to participation payments including newstart allowance. Section 42B(1) states:
The object of this Division is to encourage people to participate in employment and engage with employment services. It is also the object of this Division to secure compliance with a person’s obligations and requirements in relation to participation payments, and to ensure that those who do not comply are re-engaged with employment services as quickly as possible.
The Secretary may determine that a person commits a “no show no pay failure”, a “connection failure”, a “reconnection failure” or a “serious failure”. A person commits such a failure by failing to comply with his or her obligations in relation to a participation payment.
For a no show no pay failure, a penalty amount is deducted from the person’s participation payment. For a connection failure, a requirement may be imposed on the person and if the person fails to comply with the requirement, the person commits a reconnection failure. For a reconnection failure, generally a penalty amount is deducted from the person’s participation payment until the person complies with a requirement imposed on the person.
Section 42H(1) of the Administration Act provides that a person commits a reconnection failure if the person is required to comply with a reconnection requirement and the person fails to comply with the requirement.
However, section 42H(3) of the Administration Act provides that the Secretary must not determine that a person has committed a reconnection failure if the person satisfies the Secretary that they had a reasonable excuse for the failure.
Also section 42L provides that if the Secretary determines that a person commits a reconnection failure, the person’s penalty amount for the reconnection failure is to be deducted from the person’s instalment of a participation payment for the instalment period determined under subsection 42H(5).
By letter dated 20 January 2014 Mr Krivoshev was notified that he had an appointment on 3 February 2014 with CRS Australia (CRS), his Disability Employment Services Provider, for the purpose of assessing his employment needs, to tailor the services they would provide him based on this assessment and to negotiate his EPP with him.
Mr Krivoshev failed to attend the appointment with CRS on 3 February 2014.
In a telephone conversation on 20 February 2014 Mr Krivoshev was informed that because he failed to attend an appointment with CRS on 3 February 2014 he was required to attend a reconnection appointment with CRS on 24 February 2014. He was also informed that he may need to enter an EPP at that appointment.
He was informed that if he did not attend that appointment and enter an EPP, if required, his payments may be stopped and a penalty applied. He was informed that if he could not attend he would need to contact Centrelink before the appointment and that if he did not a penalty may be applied even if he had a reasonable excuse.
Mr Krivoshev was also informed that his payment may be cancelled if he has not re-engaged and it is more than four weeks after he was first asked to re-engage.
It is not disputed that Mr Krivoshev did not attend the reconnection appointment that was arranged for 24 February 2014.
On 6 March 2014, after reviewing a report from CRS, Centrelink contacted Mr Krivoshev and after considering his excuse for his non-attendance on 24 February 2014 decided that he did not have a reasonable excuse for his non-attendance. Also he was informed that he had to attend another reconnection appointment on 10 March 2014. By letter dated 7 March 2014 he was informed that a penalty had been imposed of $509.50. The reconnection failure period was 24 February 2014 to 9 March 2014, that is, the date before his next appointment.
On 10 March 2014, Mr Krivoshev did not attend the reconnection appointment.
On 21 March 2014, Mr Krivoshev failed to attend another reconnection appointment.
On 26 March 2014 Centrelink decided to cancel his newstart allowance, effective from 20 March 2014 because he failed to re-engage four weeks after failing to attend the reconnection appointment on 24 February 2014.
Mr Krivoshev did not receive any payments from 20 March 2014 until he re-claimed on 9 April 2014.
Therefore the issues in respect of the SSAT decision 20 August 2014 are:
·Did Mr Krivoshev have a reasonable excuse for his failure to attend the reconnection appointment on 24 February 2014, and, if not;
·Did a reconnection failure penalty apply for the period 24 February 2014 to 9 March 2014; and
·Was newstart allowance properly cancelled on 26 March 2014?
DID MR KRIVOSHEV HAVE A REASONABLE EXCUSE FOR HIS FAILURE TO ATTEND THE RECONNECTION APPOINTMENT ON 24 FEBRUARY 2014?
Section 42U of the Administration Act provides that the Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether someone has a reasonable excuse for committing a reconnection failure under paragraph 42H(3)(a) of the Administration Act.
The Guide to Social Security Law (the Guide) at 3.1.13.90 provides some examples of circumstances in which it would not be reasonable to expect the person to give prior notification of their inability to attend including the following:
· The job seeker or an immediate or close family member suffered a sudden serious illness or was hospitalised.
· The job seeker lacked access to any means of contacting the provider (e.g. the job seeker had no mobile phone credit and no reasonable access to any other means of contacting the provider, such as a friend’s phone or a public phone.)
· The job seeker was not made aware of the requirements to give advance notice.
Clause 5(2) of the Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1) (the Determination) sets out the matters to be taken into account in determining if a person has a reasonable excuse for the purposes of subsection 42U(1) of the Administration Act:
(a)that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure; and
(b)the literacy and language skills of the person; and
Example for paragraph (b):
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c)an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature; and
(d)a cognitive or neurological impairment of the person; and
(e)a psychiatric or psychological impairment or mental illness of the person; and
(f)a drug or alcohol dependency of the person; and
(g)unforeseen family or caring responsibilities of the person; and
(h)that the person was subjected to criminal violence (including domestic violence and sexual assault); and
(i)that the person was adversely affected by the death of an immediate family member or close relative; and
(j)if:
(i) the person has been imprisoned for a continuous period of more than 14 days; and
(ii) the person has been released; and
(iii) the person was released not more than 28 days before the failure was committed;
the person’s imprisonment or release from imprisonment.
Also section 5(3) of the Determination requires that “the Secretary must not take into account a matter if the Secretary is not satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement, or the provision of the 1991 Act or the Administration Act, to which the failure relates.”
The Guide provides additional factors to consider including:
·disabilities the person may have (including any requirements as a direct result of the disability such as the need for a carer or personal assistant),
·if the person was working at the time they were expected to meet their requirement,
·if the person had a job interview at the time they were expected to meet their requirement,
·lack of availability and affordability of transport,
·lack of availability of child care, and
·lack of awareness of the requirement (e.g. through non-receipt of correspondence).
Section 42UA of the Administration Act requires that in deciding whether a person has a reasonable excuse for failing to participate in an activity that the person is required to undertake or to attend an appointment that the person is required to attend the excuse cannot be a reasonable excuse unless notice of the excuse is provided to the appropriate person or body prior to the time the activity was due to commence or the appointment was to take place or in the circumstances it was not reasonable to expect the person to give prior notice.
In the record of contact with Mr Krivoshev on 6 March 2014 it was noted that he stated “that he contacted the provider to advise he couldn’t attend as he was going to Centrelink to pick up a concession card for public transport and he end up staying at Centrelink for long due to wait times.” (sic)
It is also recorded that “Michelle” the provider contact was contacted on 6 March 2014 and confirmed that Mr Krivoshev “did not make any attempt to contact JSAP for his missed re engagement appt”.
In a hand written note to the authorised review officer dated 10 April 2014 Mr Krivoshev claimed that he rang CRS on 24 February 2014 and spoke to Michelle who told him his name was not on the list. He added, however, that when he rang Michelle a few days before writing this letter she told him he was on the list.
Mr Krivoshev also referred in his handwritten note to providing to Centrelink in late January 2014 a medical certificate that indicated that he was not fit to work between 24 January 2014 and 24 April 2014. Centrelink obtained a copy of this medical certificate from the doctor as the medical certificate was not on Mr Krivoshev’s file. The ARO noted that the conditions described in the medical certificate had been assessed in a Job Capacity Assessment in January 2013 and Mr Krivoshev was assessed as having work capacity of more than 15 hours a week. In the circumstances the ARO considered that his medical conditions did not impact on his ability to attend an appointment with the provider.
In his oral evidence, Mr Krivoshev claimed that he rang CRS and left a message on an answer machine and also went to Fairfield Centrelink to get his concession card and told Fairfield Centrelink that he was going to get an ultrasound.
At the hearing, Mr Krivoshev provided a copy of a medical certificate written by Dr N S Kaushik dated 6 March 2015 stating that on 24 February 2014 he had to attend for an ultrasound of the thyroid gland at “Marrickville Imaging Clinic”.
Mr Krivoshev also provided a copy of a medical certificate dated 12 February 2015 signed by Dr H Kaushik stating that he attended “Comprehensive Medical Imaging” at Marrickville for a procedure on 24 February 2014.
There is no documentary evidence that Mr Krivoshev ever informed Centrelink that he attended an ultrasound examination on 24 February 2014.
In his oral evidence, Mr Krivoshev was unable to remember when he first knew about the ultrasound examination and was not able to explain why he had not told Centrelink. He indicated that he was “confused”.
The fact that Mr Krivoshev provided different excuses at other times, did not tell Centrelink about the ultrasound appointment and did not provide any documentary confirmation of his attendance at the imaging practice until the day of the hearing in my mind raises doubts about the reliability of this evidence.
Even if it could be accepted that Mr Krivoshev attended the ultrasound examination on 24 February 2014 in deciding whether this was a reasonable excuse for this failure to attend I would need to be satisfied that there were circumstances that made it unreasonable for Mr Krivoshev to give prior notice of his non-attendance.
In his oral evidence Mr Krivoshev was unable to remember when he knew about the ultrasound examination.
Although Mr Krivoshev claimed to have contacted CRS on 24 February 2014 his claim is not supported by documentary evidence and I am not persuaded that he did contact CRS on that day.
I am not satisfied that Mr Krivoshev’s circumstances were such that it was not reasonable to expect him to give prior notification of his inability to attend the appointment whatever his excuse may be.
It follows that in accordance with section 42UA of the Administration Act Mr Krivoshev did not have a reasonable excuse for his failure to attend the CRS appointment on 24 February 2014 and that a reconnection failure occurred on that date.
DID A RECONNECTION PENALTY APPLY FOR THE PERIOD 24 FEBRUARY 2014 TO 9 MARCH 2014?
Section 42H(4) of the Administration Act provides that a reconnection failure period:
(a)begins on the day the person commits the failure; and
(b)ends on:
(i) the day before the person complies with any further reconnection requirement imposed on the person in relation to the reconnection failure; or
(ii) if the person fails to comply with a further reconnection requirement imposed on the person in relation to the reconnection failure, and the person satisfies the Secretary that the person has a reasonable excuse for the failure—the day before the person fails to comply with the requirement.
Centrelink applied a reconnection failure penalty totalling $509.50 for the period of 24 February 2014 to 9 March 2014. At the time the decision was made to impose the penalty Mr Krivoshev was expected to attend a reconnection appointment on 10 March 2014.
For the reasons given above I am satisfied that a reconnection failure was committed by Mr Krivoshev on 24 February 2014.
Mr Krivoshev’s failed to attend the reconnection appointment scheduled at 10:30 am on 10 March 2014.
Centrelink records show that CRS tried to contact Mr Krivoshev on 10 March 2014 but was not successful. He subsequently contacted CRS at 3:55 pm on that day to advise that he was unable to make the appointment. There is also a record of Mr Krivoshev advising Centrelink on that day that he could not attend the appointment. None of the records of his phone calls refer to any excuse for his non-attendance.
A participation report records that on 19 March 2014 a Centrelink officer had:
… confirmed that the [jobseeker] was given a [medical certificate] with dates 24/1 – 24/4/2014 and I have considered that he did attempt to reschedule the appt did call c/link on the 10 march. [It] has now been explained [to him] that the [medical certificate] is not on his file and he has no exemption in place therefore he must be attending appts with CRS
A letter dated 19 March 2014 advised that he had given a reasonable excuse for not being able to meet his reconnection requirement.
On consideration of the evidence I am satisfied that that the reconnection failure period was correctly applied in accordance with the provision of section 42H of the Administration Act and the penalty amount was correctly calculated.
WAS NEWSTART ALLOWANCE PROPERLY CANCELLED?
On 26 March 2014 Centrelink cancelled Mr Krivoshev’s newstart allowance, with date of effect of 20 March 2014, because he failed to re-engage within 28 days of the first reconnection failure on the 24 February 2014.
Section 605(1) of the Act provides that the Secretary may require a person to enter into an Employment Pathway Plan if the person is receiving newstart allowance.
By letter dated 20 January 2014 Mr Krivoshev was informed of the need to attend CRS to negotiate an EPP.
On 20 February 2014 Mr Krivoshev was told that he will need to attend a reconnection appointment on 24 February 2014 and may need to enter into an EPP at that appointment.
On 24 February 2014 Mr Krivoshev failed to attend the reconnection appointment, did not have a reasonable excuse and was not able to be entered into an EPP.
Mr Krivoshev also failed to attend two subsequent reconnection appointments on 10 March 2014 and 21 March 2014.
Consequently, pursuant to section 593 of the Act Mr Krivoshev was no longer qualified for newstart allowance.
Section 80 of the Administration Act provides that if a social security payment is being paid to a person who is not qualified for the payment the Secretary is to determine that the payment is to be cancelled or suspended.
On consideration of the evidence I am satisfied that the cancellation of newstart allowance on 26 March 2014 was correct.
DECISION
The decisions under review are affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member .......................[sgd].................................................
Dated 19 May 2015
Date of hearing 23 March 2015 Applicant In person Solicitor for the Respondent Ms B Salaji, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Benefits
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Administrative Decision
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Judicial Review
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