NIGEL OSBORNE and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 633
•26 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 633
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/6185
GENERAL ADMINISTRATIVE DIVISION ) Re NIGEL OSBORNE Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date26 August 2009
PlaceHobart
Decision The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance - participation failures - failure to attend appointments - failure to comply with Newstart Activity Agreement - three participation failures - cancellation of Newstart Allowance - no reasonable excuse - decision to apply eight week non-payment period affirmed
Social Security Act 1991, ss 593(1), 601(1), (4), 605, 606(1), (2), (5), 624(1), (2), (2A)
Social Security (Reasonable Excuse) (DEWR) Determination 2006
Social Security (Administration) Act 1999, s 63(2)
Secretary, Department of Employment and Workplace Relations v Real (2007) FCA 988
Vatarescu and Secretary, Department of Education and Workplace Relations [2007] AATA 1717
REASONS FOR DECISION
26 August 2009 Ms A F Cunningham (Senior Member) 1. The applicant, Nigel Osborne, seeks the review of a decision of Centrelink to apply an eight week non-payment period of his Newstart Allowance (NSA) on the basis that he incurred three participation failures within a twelve month period. Centrelink's decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal (SSAT) on 1 December 2008.
2. Mr Osborne had most recently been in receipt of NSA since 21 December 2007. On 26 June 2008 he entered into an Activity Agreement with Tasmanian Business and Employment Centre. The Agreement contained a list of the compulsory activities which Mr Osborne is required to undertake in order to receive his Centrelink payments. Those activities included a requirement to undertake job search contacts, participate and complete Work for the Dole from 26/06 /2008 to 24/12/2008, provide evidence of job search attempts, attend interviews with business and employment on 25/06/2008; 09/07/2008 and 23/07/2008.
3. The Agreement further required that Mr Osborne advise his provider or Centrelink in advance of any reason that he was unable to attend a scheduled appointment or activity and reschedule any appointment that he was unable to attend. The Agreement explained what is meant by a participation failure and that payment may be stopped for a period of eight weeks in the event of three or more participation failures within twelve months.
Issues
4. The issues for the Tribunal to determine are:
a) whether Mr Osborne incurred participation failures on 7 August 2008, 19 August 2008 and 20 August 2008
b) if he did commit such failures, whether he had a reasonable excuse for any one or more of the failures
c) whether an eight week non-payment period should be imposed.
Legislation
5. The qualification criteria for NSA are contained in section 593 of the Social Security Act 1991 (Commonwealth) (the Act). Section 593(1) relevantly provides:
"593 Qualification for newstart allowance
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
...
(b) in the case of a person to whom subparagraph (a)(i) applies— throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test"
6. The provisions referring to the activity test are contained in section 601. Section 601(1) provides:
"601 Activity test
(1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
Note 1: For situations in which a person is taken to satisfy, or is not required to satisfy, the activity test see:
(a) section 603 (persons attending training camps or in remote areas);
(b) section 603A (special circumstances);
(c) section 603AA (persons 55 and over who are engaged in work);
(d) section 603AB (certain principal carers and people with partial capacity to work).
Note 2: See subsections (2A) and (2B) on what paid work is unsuitable".
7. Section 601(4) states that a person satisfies the activity test if they comply with the terms of the Newstart Activity Agreement, sub-section 5 provides that failure to comply with the Agreement constitutes a failure to satisfy the activity test in respect of the stated period.
8. Under section 605 a person may be required to enter into an activity agreement if they are receiving or have made a claim for newstart allowance. The terms that are to be included in the Newstart Activity Agreement are set out in section 606 which relevantly provides as follows:
"606 Newstart Employment Pathway Plans—terms
Suitable requirements
(1) Subject to sections 607 to 607B, a Newstart Employment Pathway Plan that is in force in relation to a person is to contain one or more terms (the requirements) that:
(a) the person is required to comply with; and
(b) the Secretary regards as suitable for the person.
(1A) However, a plan must not contain a requirement of a kind that the Secretary determines under subsection (1B).
(1B) The Secretary must determine, by legislative instrument, the kinds of requirements that plans must not contain.
(1C) To avoid doubt, a determination under subsection (1B) does not limit the Secretary’s discretion to exclude other kinds of requirements from a particular plan under subsection (1).
Optional terms
(1D) A plan may also contain one or more terms that the person may, but is not required to, comply with.
Approval of requirements
(2) The requirements in a plan are to be approved by the Secretary".
9. Section 606(5) states that the agreement may be varied by negotiation, suspended or cancelled by the Secretary.
10. The following provisions whilst subsequently repealed, are referable to this review:
"624 Newstart participation failures
(1) 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; or
(e) fails to attend a job interview; or
(f) fails:
(i) to commence, complete or participate in an approved program of work for income support payment that the person is required to undertake; or
(ii) to comply with the conditions of such a program; or
(g) fails to continue his or her involvement in a labour market program because he or she:
(i) voluntarily ceases to take part in the program; or
(ii) is dismissed from the program for misconduct; or
(h) is issued with a notice under subsection 625(1) and fails to comply with it within the period specified in the notice; or
(i) fails to comply with subsection 625(2); or
(j) fails to comply with a requirement included in a Newstart Activity Agreement between the Secretary and the person to:
(i) undertake a certain number of job searches per fortnight; and
(ii) keep a record of the person’s job searches in a document referred to in the agreement as a job seeker diary; and
(iii) return the job seeker diary to the Department at the end of the period specified in the agreement; or
(k) fails to comply with a requirement to undertake another activity referred to in paragraph 626(1)(b).
(2) Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.
(2A) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing a newstart participation failure".
11. A newstart allowance is not payable for a period of eight weeks if the person commits three participation failures within a period of twelve months (section 629(1).
12. An approved program of work as referred to in section 624(1) is defined in section 23 as a program of work declared by the employment secretary under section 28. Work for the Dole (WFD) has been approved accordingly.
13. The legislative instrument referred to in section 624 with respect to "reasonable excuse" is the Social Security (Reasonable Excuse) (DEWR) Determination 2006. This Determination contains a list of matters that must be taken into account in determining whether the person had a reasonable excuse. The matters as stated in sub-section 2 are:
"(2) The matters are:
(a) the fact that the person is living in a non-permanent
location on the streets or is using emergency
accommodation or refuge at the time that the failure or
refusal occurred; and
(b) the literacy and language skills of the person, if the
person’s lack of such skills is significant; 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.
Federal Register of Legislative Instruments F2006C00520
4 Social Security (Reasonable Excuse) (FaCSIA) Determination 2006
(c) any illness, impairment or condition of the person that
requires frequent treatment, including any illness that is
episodic or unpredictable in nature; and
(d) any cognitive or neurological impairment of the person;
and
(e) any psychiatric or psychological impairment or mental
illness of the person; and
(f) any drug or alcohol dependency of the person; and
(g) any unforeseen family or caring responsibilities of the
person; and
(h) the death of an immediate family member; and
(i) if:
(i) the person has been in gaol; and
(ii) the period that the person spent in gaol exceeded
14 days; and
(iii) the person has been released; and
(iv) the person was released not more than 28 days
before the person’s failure to comply with the Act;
the person’s release from gaol".
14. Sub-section 3 states the matter will not be considered unless it had a significant effect on the person's capacity to comply with the requirement to which the failure or refusal relates.
Consideraton
15. The first consideration is whether Mr Osborne committed the asserted participation failures on 7, 19 and 20 August 2008.
16. In his evidence to the Tribunal Mr Osborne acknowledged that he was aware of the requirement to attend an appointment with Business and Employment on 7 August 2008 but failed to do so. Whilst he disputes that he received a letter dated 10 July 2008 notifying him of the appointment, Mr Osborne acknowledges that he was aware of the appointment date and time which was recorded in his own handwriting on a copy of the Activity Agreement. Mr Osborne also acknowledged that he was aware of the consequences of his not attending. Mr Osborne said that his reason for not attending was due to health issues and that he had been suffering from stomach ulcers. Mr Osborne confirmed that the address stated in the letter of 10 July 2008 was his correct address.
17. Mr Osborne agreed that he had not attended the scheduled appointment on 19 August 2008 but contended that he had requested that the appointment date be changed, again due to problems with his stomach.
18. It was Mr Osborne's evidence that he had attended at the Centrelink office prior to the appointment on 19 August at either 1.20 pm or 2.20 pm and requested that the appointment be changed because he was not feeling well. He states that he was informed that he needed to attend at Business and Employment being the location for the appointment. Mr Osborne contends that he telephoned Business and Employment approximately five minutes before the scheduled appointment time but was told that it could not be changed. Mr Osborne referred to a call charge detail sheet which indicated that he had made a telephone call on 19 August at 2.58 pm. The respondent's records at T7 record that Mr Osborne had not attended the appointment but had telephoned at 4.25 pm on 19 August 2008 and asked to have his appointment rescheduled. He was informed that he would have to contact Centrelink to have it rescheduled.
19. Mr Osborne does not dispute that he failed to attend Work for the Dole on 20 August 2008. Whilst he contended in his evidence to the Tribunal that he knew nothing about the appointment, the date was affirmed by him in his own handwriting on the copy of the Activity Statement contained at T3. There is evidence in the T Documents that Mr Osborne also failed to attend the Work for the Dole Program on 21 and 22 August 2008.
20. It is evident on the basis of the oral evidence given at the hearing, the T Documents that were tendered in evidence and other documentation tendered at the hearing that appointments were scheduled on 7 and 19 August 2008 and a Work for the Dole activity on 20 August 2008. Mr Osborne does not dispute that he failed to attend the appointments and I find accordingly. I am also satisfied that Mr Osborne was duly notified and made aware of the appointment times as required by section 63(2) of the Social Security (Administration) Act 1999. There are several references in the T Documents in the form of data inputs which show attempts made by Centrelink officers to confirm the appointment dates and times. Whilst messages were left on Mr Osborne's telephone recording system, no responses were received from him.
21. The Tribunal is satisfied that Mr Osborne was made aware of the consequences of him not attending the scheduled appointments. The Tribunal accepts that Mr Osborne made an attempt to change the appointment date for 19 August 2008. This request was either made just prior to or after the scheduled appointment time of 3.00 pm. Mr Osborne contended that he had stomach problems. Whether his explanation and actions amounted to a reasonable excuse will be considered subsequently in the course of this decision.
22. There is also no dispute that Mr Osborne failed to attend Work for the Dole on 20 August 2008. By entering into the Activity Agreement with Tasmanian Business and Employment Centre on 26 June 2006 Mr Osborne agreed to participate fully and complete Work for the Dole. His explanation for not attending as given to a Centrelink officer on 29 August 2008 was that he was not feeling well.
23. The Tribunal is satisfied on the basis of the records contained in the T Documents and Mr Osborne's own admission that he did not attend Work for the Dole on 20 August 2008.
Reasonable Excuse
24. The next matter for consideration is whether Mr Osborne's reasons for his non-attendance constitute "reasonable excuse" within the meaning of the legislation.
25. Reference has been made to the list of matters contained in the Reasonable Excuse Determination that can be taken into account. Section 624(2B) suggests that the consideration is not limited to this list of matters and that other reasons proffered can be considered. Sub-section 3 of the Determination requires however that the Secretary be satisfied that the matter "had a significant effect on the person's capacity to comply with the requirement or provision of the Act to which the failure or refusal relates".
26. I am required to consider the particular reason put forward by the person rather than the whole of the person's circumstances. As Kiefel J noted in Secretary, Department of Employment and Workplace Relations v Real (2007) FCA 988:
"6. It is not whether the Tribunal considers that, in all the circumstances, the respondent should be excused. It is whether the Tribunal is satisfied about the reason proffered by him which justifies his non-compliance with the notice.
7. ... The Tribunal was obliged to consider what the respondent said was the reason for his non-attendance. It may be expected that this would involve his state of mind, but I do not think it is correct to frame the statutory inquiry by reference to it. It simply requires a consideration of the excuse put forward".
27. Mr Osborne has stated that the reason for his non-attendance on 7 August 2008, was because he was in conflict with Business and Employment. He was unhappy with their service and the WFD program supervisor was making fun of the unemployed.
28. Reference was made to a statement of the the Tribunal in Vatarescu and Secretary, Department of Education and Workplace Relations [2007] AATA 1717 at 25:
"If a Job Network Member fails to provide a satisfactory level of service to a jobseeker, it is open for the jobseeker to take up any concerns with the Job Network Member. Having done that, if the jobseeker is still not satisfied then it lies open for the jobseeker to raise his or her concerns with the Department".
29. There is no record of any formal complaint having been lodged or any steps taken by Mr Osborne to resolve any conflict.
30. On 15 August 2008 Mr Osborne wrote a letter stating that:
"Because of my on-going problem with the management at Business and Employment in Burnie, I have stopped any more contact with them and the Work for the Dole Program at the on-line centre that they sent me to. I know that this breaks my Mutual Obligation with Centrelink, but I have had enough of being discriminated against. If this means being unemployed with no Centrelink benefits, so be it. At least I won't have to put up with some of the bad staff in BEC". (T6).
31. In his evidence to the Tribunal Mr Osborne also referred to stomach troubles however he had not informed Centrelink that this was a reason for his non-attendance.
32. The only evidence in support of Mr Osborne's health problems is a statement from Dr Lyall dated 9 April 2009 certifying that Mr Osborne suffers from gastro oesophageal reflux disease which is treated with acimax medication. Mr Osborne provided copies of the medication. There was also a letter from Mr Osborne's father, Brian Osborne dated 3 March 2009 which states that his son was ill on the 24/7/08 and 25/7/08. None of this documentation however is specifically referable to 7 August 2008. There is no evidence to support a conclusion that Mr Osborne's health problems were such as to have a significant affect on his capacity to comply with the requirement to attend the appointment with Centrelink on 7 August 2008.
33. Following Mr Osborne's failure to attend his appointment on 7 August 2008 telephone messages were left on his landline and mobile answering machines confirming his failure to attend. On 18 August 2008 an attempted contact was made regarding Mr Osborne's appointment on 19 August. (T7) Mr Osborne maintains that he attempted to change the appointment time because he was not feeling well. The respondent maintains that the contact received from Mr Osborne was sometime after the scheduled appointment time at 3.00 whereas Mr Osborne maintains that it was prior to the appointment. The copy of the call charge details indicated that a call was made at 2.58 pm. Mr Osborne was unable to confirm to whom the call was made. The telephone number is not that of the Centrelink office but an employment agency.
34. Given that the appointment was scheduled for 3.00 pm, it is clear that Mr Osborne's attempts to change the appointment were not made within a reasonable time. There is also insufficient evidence to satisfy me that the reason proffered by him, namely ill-health, was such that it was significant enough to affect his capacity to attend the scheduled appointment. Accordingly I cannot accept that Mr Osborne's reason for non-attendance was reasonable in the circumstances. His letter of 15 August 2008 referred to above, suggests that Mr Osborne had no intention of attending any further appointments.
35. For the same reasons, I do not accept Mr Osborne's explanations for not attending WOD on 20 August 2008. None of the documentation referred to above with respect to his state of health is referable to this date and does not satisfy me that his state of health had a significant effect on his ability to attend WFD. I accordingly conclude that Mr Osborne did not have a reasonable excuse for this failure to attend WFD on 20 August 2008.
Conclusion
36. Having found that Mr Osborne committed newstart participation failures on three occasions within a twelve month period without reasonable excuse, I find the provisions of section 629(1) of the Act satisfied and accordingly affirm the original decision to apply an eight week non-payment period.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 3 July 2009
Date of Decision 26 August 2009
Advocate for the Applicant Applicant on his own behalf
Advocate for the Respondent Mr F Aaberg, Centrelink Legal Services
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