Owen and Secretary, Department of Employment (Social services second review)

[2015] AATA 477

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)         No: 2014/6029

General Division  )

Re: Todd Owen
Applicant

And: Secretary, Department of Employment
Respondent

DIRECTION

TRIBUNAL:              Member Sandra Taglieri

DATE:   9 July 2015

PLACE:                    Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to replace the Respondent “Secretary, Department of Social Services” with “Secretary, Department of Employment”.

........................(Sgd) S Taglieri....................
  Member

Owen and Secretary, Department of Employment (Social services second review) [2015] AATA 477 (3 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6029
Re	Todd Owen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal	Member Sandra Taglieri
Date	3 July 2015
Place	Perth

The decision under review is affirmed.

...(Sgd) S Taglieri.....................................................................

Member Sandra Taglieri

Catchwords

SOCIAL SECURITY: Newstart Employment Pathway Plan- Applicant refused to sign new Plan- failed to comply with plan- whether requirement to enter plan breaches Australia’s Constitution or international obligations- he had no reasonable excuse pursuant to the legislation- decision under review affirmed.

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999 – s 42E(4) - s 42U – s 42U(2)

Social Security (Reasonable Excuse – participation Payment Obligations) (DEEWR) Determination 2009 – s 5(2) – s 5(2)(c) – s 5(3)

Cases

Reine and Secretary, Department of Family and Community Services [2005] AATA 425

Higgins v Commonwealth (1998) 79 FCR 528
Minister of State for Immigration & Ethnic Affairs v Teoh [1995] HCA 20
Zoia and Secretary, Department of Employment and Workplace Relations [2007] AATA 2066

Secondary Materials

Universal Declaration of Human Rights – Article 23 and 25

REASONS FOR DECISION

Member Sandra Taglieri

3 July 2015

BACKGROUND TO APPLICATION

1. In 2014, Mr Owen was in receipt of Newstart Allowance under the Social Security Act 1991 (SS Act). By a decision dated 9 June 2014, the Respondent determined to apply a connection failure[1] to Mr Owen’s record because he refused to enter into an Employment Pathway Plan (EPP), with his Employment Services Provider, Rocky Bay.[2]

   [1] Within the meaning of Section 42E of the Social Security Act 1991

   [2]Determination of Respondent, T8 at page 58 and 59 of T Documents

2. Mr Owen sought review of the decision of 9 June 2014 from an Authorised Review Officer of the Respondent and also the Social Security Appeals Tribunal, but was unsuccessful.

3. On 20 November 2014 Mr Owen applied to this Tribunal and his application was heard on 16 April 2015.

4. At the conclusion of the hearing, the parties were given leave to file additional written submissions, confined to the relevance (if any) of the Universal Declaration of Human Rights (UDHR) to the determination to be made by the Tribunal.

   CONTentions and issues arising

5. At the hearing, Mr Owen conceded that he had refused to enter into the EPP but he argued that his refusal was based on reasonable excuse. The effect of his argument was that because his refusal to enter the EPP was reasonably excused by virtue of subsection 42E(4) of the Social Security (Administration) Act 1999,  the Respondent ought not to have determined that he had committed a connection failure.

6. Mr Owen claimed that he was reasonably excused because the terms of the EPP required him to participate in 15 hours of work preparation activities a week and this was said to be contrary to his Constitutional Rights and Human Rights prescribed by Articles 23 and 25 of the UDHR.

7. As a result, the Tribunal is only required to determine whether the EPP refusal in the circumstances, is reasonably excused, such that there ought not to be a connection failure recorded.

   consideration of evidence relevant to issues

8. Mr Owen gave evidence at the hearing about suffering from a back condition since 2000 when he had a workplace injury. Since the injury, he had struggled with ongoing chronic back pain which in turn has impacted on his psychological state.

9. Following the work injury, he had not worked for a lengthy time, but then obtained work for 20 hours a week at a fresh fish store, cleaning and filleting fish. He said the employer required more and more of him and he resorted to alcohol to manage the pain and could not cope. He ended up having a breakdown and ceased work.

10. He said that as a result of his back condition, it had been proven over the years that he can only manage to work three hours of work at a time before his pain deteriorates. For this reason he said he could only engage in 12 hours (three hours on four occasions) of activity to prepare him for work, so he was not willing to sign the EPP which required 15 hours.

11. His evidence was that in the time leading up to June 2014, he had been undertaking 3 hours a week of voluntary work experience at a café, was studying to be a Barista and also engaged in training as an Artist with an Art teacher for 2 and a half hours every Monday. In response to a question from the Tribunal, Mr Owen also said he engaged in paining and other artwork at his home for an estimated 3 to 4 hours per week.

12. Any activities involving use of his arms were said to cause his pain to increase and he found through experience that three hours of such activity at a time with a day rest in between was all he could do and keep his condition and pain manageable.

13. The effect of all Mr Owen’s evidence was that he considered he should not have to endure more pain by being made to do work or work preparation activities beyond 12 hours per week.

14. The Tribunal had evidence contained in a Job Capacity Assessment Report.[3] The Assessor was a Registered Nurse, but had input from an Occupational Therapist and a psychologist. The Assessor met with Mr Owen in person and after assessment expressed that view that despite Mr Owen’s back condition and depression, he had capacity to perform 15-22 hours per week of moderate less skilled work. It is clear that the Assessor took into account all medical evidence available and also Mr Owen’s statements in forming this view.

    [3] Report dated 26.5.14, T6 at pages 43 to 48 of the T Documents.

    evaluation of the merits of mr owen’s contentions

15. Mr Owen’s contention that his refusal to enter the EPP was reasonably excused because its terms were in breach of his Constitutional rights has no merit. It is well settled that the Commonwealth has the power to make legislation that qualifies or imposes conditions on receipt of a social security benefit. [4] As such, the requirement that Mr Owen enter into an EPP was lawful and not contrary to his Constitutional rights.

    [4] Higgs v Commonwealth (1998) 79 FCR 528 at 532, followed in Zoia v Secretary, Department of Education, Employment and Workplace Relations (No. 2)[2009] FCA 924, per McKerracher J at paragraph 25 and 26

16. The contention that refusal to enter into the EPP was reasonably excused because its terms were a breach of the UDHR required somewhat closer scrutiny. I have carefully considered the additional written submissions from the parties filed after the hearing.

17. The Respondent has conceded that Australia voted in favour of the adoption and proclamation of the UDHR by the United Nations General Assembly.[5] The Respondent has submitted that the Commonwealth Parliament has not directly incorporated the rights (including those in Article 23 and 25 of the UDHR) into Australian domestic law. I accept the submission for two reasons. First, there is no evidence before me to the contrary. Secondly, the nature of the rights are analogous to those considered by the High Court in Minister for Immigration and Ethnic Affairs v Teoh,[6] and by DP Forgie in Reine and Secretary, Department of Family and Community Services.[7]

    [5] Paragraph 6 of the Respondent’s written submissions dated 30 April 2015

    [6] [1995] HCA 20

    [7] [2005] AATA 435

18. Applying the principles established in Teoh and Reine, as there is no ambiguity in relation to the statutory provision that imposes the requirement on Mr Owen to enter into an EPP, there is no occasion to turn to the UDHR for guidance.

19. Further, the Commonwealth Parliament has expressly provided for the circumstances which must be taken into account when deciding whether a connection failure is reasonably excused.[8] The Social Security (Reasonable Excuse-Participation Payment Obligations) Determination 2009 (The Determination) is the relevant Determination to Mr Owen’s matter.

    [8] Section 42U of the Social Security Administration Act 1999) and Social Security (Reasonable Excuse Participation Payment Obligations) Determination (2009) being the relevant Determination to Mr Owen’s matter.

20. Of the provisions contained in section 5(2) of the Determination, only subsection 5(2)(c) is potentially relevant on the facts before the Tribunal.

21. However, it is plain that the Determination does not limit the matters that can be taken into account in deciding whether there was a reasonable excuse for a connection failure.[9]

    [9] Section 42U(2) of the Social Security (Administration) Act 1999

22. On the facts before the Tribunal, no issue arises about procedural fairness in the context of the doctrine of legitimate expectations referred to in Teoh[10] because Mr Owen was told of the consequences of him refusing to enter the EPP and he was given opportunity to put his reasons beforehand.[11] 

    [10] As per Mason CJ and Deane J at 291 – 292

    [11] See T7, pages 49 to 51, Participation Report – Failure to enter/vary

23. It is still incumbent upon the Tribunal to consider if there is any merit in the argument that Mr Owen’s connection failure is reasonably excused because:

    (a)His back condition and pain are such as that it was unreasonable to require him to undertake 15 hours of work preparation activity[12]; or

    (b)of Article 23 and 25 of UDHR in some way.

    [12] Subsection 5(2)(c) of the Determination

    was it reasonable to require mr owen to engage in 15 hours per week work participation activity?

24. The reason Mr Owen chose to only do 12 hours work participation or preparation activity is because of his experience of pain. The experience of pain is subjective and its impact on function is therefore difficult to objectively assess.

25. Nevertheless, eligibility for benefits available under the Social Security Act 1991 require objective assessment, as does determination of whether conditions imposed on eligibility are satisfied.

26. If a person’s individual subjective choice about pain is allowed to solely determine whether conditions of eligibility for benefits are satisfied, the entire foundation of the social security scheme will be vulnerable. As such, in my view it is only appropriate to take choice of activity based on pain experience into account when assessing if Mr Owen had a reasonable excuse, if there is objective corroboration of the degree of pain experience and how it impacts on function.

27. There is little material before the Tribunal which objectively corroborates Mr Owen’s evidence about pain experience and its impact on function. Dr Winterton’s report and his opinions do objectively corroborate the existence of the thoracic back condition and pain. However, he only identified functional impacts relating to endurance, movement and dexterity (e.g. walking, bending, sitting, standing, lifting, carry and manipulating objects.) Dr Winterton added “cannot stay in one position for long and sensitivity to cold”. He makes no specific reference to any use of arms causing increased pain.

28. Mr Owen’s evidence was very specific about what made his pain worse. He said that it was any activity using his arms. When cross-examined and asked whether he could do three hours office work a day with breaks as required, he said breaks would not help and that if he is distracted from the pain, he preferred to do that three hours’ work without a break.

29. This evidence is telling as it demonstrates that if distracted, despite his back and arm pain, he can work three hours at a time without break. It also indicates that when he chooses, he will undertake activity which causes increased pain. Another example of this is that he has a goal of pursuing art as a career, which involves considerable use of the arms.

30. There was no evidence that Dr Winterton had placed any specific time limits on the length of time Mr Owen should participate in activity involving use of his arms.

31. I consider that the views contained in the Job Capacity Assessor’s report about functional capacity of at least 15 hours per week were well reasoned and soundly expressed by persons with relevant expertise.

    reasonable excuse by reference to udhr?

32. Article 23 of the UDHR relates to employment and Article 25 relates to living standards. The requirement to enter into the EPP is a condition imposed on being eligible for Newstart Allowance and does not deprive Mr Owen of the rights contemplated by the Article 23 or 25 of the UDHR.

33. If however the terms of the EPP did somehow impact adversely on the rights in the UDHR (as opposed to depriving the right), this may on particular facts (but not those presently before the Tribunal), be a matter relevant to whether there was reasonable excuse for refusing to enter the EPP.

34. There is no evidence at all that Mr Owen had the rights in Article 23 and 25 in mind when he refused to sign the EPP. I am therefore not satisfied that they had any, let alone a significant effect on his capacity to comply with the EPP. For that reason by virtue of section 5(3) of the Determination, I cannot take them into account when determining if there was a reasonable excuse for refusing to enter the EPP.

    conclusion

35. While I accept that Mr Owen suffers pain from his back condition. I do not accept that it objectively prevented him from performing 15 hours of work preparation activity per week. I reject the contention that he was reasonably excused from entering the EPP by his pain experience or any matter in section 5(2) of the Determination.

36. Further, he was not reasonably excused from refusing to enter the EEP by any rights under the Constitution or UDHR.

37. The application is dismissed and the decision under review is affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Member Sandra Taglieri

...(Sgd) A Tran.....................................................................

Associate

Dated 3 July 2015

Date(s) of hearing	11 May 2015
Applicant	In person
Representative for the Respondent	Solene Yik Long
Solicitors for the Respondent	Australian Government Solicitor