PATRICK LOBENDAHN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 492

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 492

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5372

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICK LOBENDAHN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Ion Alexander, Member

Date2 July 2009

PlaceSydney

Decision

The decision under review is varied as follows:

(a) Mr Lobendahn had a reasonable excuse for failing to enter into a Newstart Activity Agreement on 2 April 2008 so that pursuant to subsection 624(2) of the Social Security Act 1991 he did not commit a newstart participation failure on 2 April 2008;

(b)       Mr Lobendahn committed three newstart participation failures on 7 May 2008, 2 June 2008 and 1 July 2008; and

(c) As a consequence of the three newstart participation failures committed on 7 May 2008, 2 June 2008 and 1 July 2008 pursuant to subsection 629(1)(a) of the Social Security Act 1991 newstart allowance is not payable to Mr Lobendahn for a period of eight weeks.

.................[sgd].............................

Dr Ion Alexander
  Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – participation failures – refusal to sign Newstart Activity Agreement – concern over privacy statement on Newstart Activity Agreement – failure to attend appointment – misreading of letter notifying of appointment – whether applicant had reasonable excuses for failures – decision under review varied

Social Security Act 1991 – sections 605, 624, 629

Social Security (Administration) Act 1999 – section 64

Social Security (Reasonable Excuse) (DEWR) Determination 2006

Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988

REASONS FOR DECISION

2 July 2009 Dr Ion Alexander, Member

1.      In this proceeding Mr Lobendahn seeks review of a decision of the Social Security Appeals Tribunal, dated 13 October 2008, to affirm prior decisions of Centrelink to apply two eight week non-payment periods in respect of his newstart allowance on the basis that he had committed four newstart participation failures in a twelve month period.

2.      Mr Lobendahn attended the hearing on 16 June 2008. He was unrepresented, but was able to give oral evidence.

3.      After having considered all the evidence and for reasons that follow, I find that during 2008 Mr Lobendahn committed three newstart participation failures and that therefore a single eight week non-payment period should be applied which means that his claim has been partially successful.

ISSUES

4. Section 605 of the Social Security Act 1991 (“the Act”) provides that the Secretary may require a person receiving newstart allowance to enter into a Newstart Activity Agreement (“Activity Agreement”).

5. Subsection 624(1)(c) of the Act provides that a person commits a newstart participation failure if they fail to comply with a requirement to enter into an Activity Agreement.

6. However, subsection 624(2) provides that a failure of a kind referred to in subsection (1) is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

7.      Mr Lobendahn does not dispute that he was asked to enter into an Activity Agreement on 2 April 2008, 7 May 2008 and 2 June 2008 and that on each occasion he refused to sign the said agreement.

8. The respondent contends that because Mr Lobendahn failed to sign an Activity Agreement on 2 April 2008, 7 May 2008 and 2 June 2008 he had committed a newstart participation failure on each occasion and that therefore payment of his allowance was subject to subsection 629(1)(a) of the Act. That subsection mandates that newstart allowance is not payable for a period of eight weeks if a person commits a newstart participation failure having committed newstart participation failures on two or more occasions during the period of 12 months preceding that failure.

9. Mr Lobendahn contends that on each occasion that he failed to enter into an Activity Agreement he had a reasonable excuse and that therefore pursuant to subsection 624(2) he has not committed any newstart participation failures.

10.     Therefore, the first issue to be determined is whether Mr Lobendahn had a reasonable excuse for failing to enter into an Activity Agreement on any of these three occasions.

11. Subsection 64(2) of the Social Security (Administration) Act1999 (“the Administration Act”) provides that a person receiving newstart allowance may be notified by the Secretary that they are required to attend a particular place for a particular purpose.

12. Subsection 624(1)(a) of the Act provides that a person commits a newstart participation failure if that person fails to comply with a requirement that was notified to the person under subsection 64(2) of the Administration Act that was reasonable and the notification included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure.

13. Mr Lobendahn was notified of an appointment on 1 July 2008 at CRS Australia by a letter dated 24 June 2008 for the purpose of reviewing his Activity Agreement and he does not dispute that he received the notification and that it complied with the requirements of subsection 624(1)(a) of the Act.

14. Mr Lobendahn submits, however, that he simply misread the letter and that this should be considered as a reasonable excuse pursuant to subsection 624(2) of the Act.

15. The respondent contends that misreading of the notification does not constitute a reasonable excuse for the purposes of subsection 624(2) and that Mr Lobendahn’s failure to attend was a fourth participation failure so that pursuant to subsection 629(1)(a) of the Act an additional eight week non-payment period applies.

16.     Therefore the second issue to be determined is whether Mr Lobendahn had a reasonable excuse for failing to attend the appointment on 1 July 2008.

17. I note that subsection 629(3) of the Act provides an additional discretion in that subsection 629(1) does not apply in relation to a repeated failure if the Secretary is for any other reason satisfied that subsection (1) should not apply to the failure.

EVIDENCE

18.     On 2 April 2008 Mr Lobendahn attended the CRS Australia office at Mt Druitt and was asked to enter into a new Activity Agreement.

19.     Mr Lobendahn had last signed a similar agreement, albeit in a different format, on 28 February 2006. In the intervening period he had a medical exemption in respect of such an agreement which had expired on 13 March 2008.

20.     Mr Lobendahn refused to sign the standard Activity Agreement because of perceived difficulties with the document in respect of privacy issues.

21.     The contemporaneous documents indicate that he did not wish information about his medical history to be shared with unspecified third parties and expressed particular concerns about a paragraph on page four of the agreement under the heading of Privacy which stated that “Your personal information is protected by law and can only be disclosed and used for purposes where Commonwealth legislation authorises, in special circumstances or where you give permission.”

22.     Mr Lobendahn indicated that he wanted the material in respect to privacy removed from the Activity Agreement. He was informed that this was not possible. Despite being informed of the potential consequences of failing to enter into an Activity Agreement Mr Lobendahn refused to sign the agreement on the day of the appointment or in the few days after which he was granted to make his own inquiries.

23.     A subsequent letter dated 23 April 2008, informing Mr Lobendahn of his rights and the consequences of not entering into an Activity Agreement, relevantly stated that “Your personal information is protected by law and can only be released to someone else in special circumstances, where commonwealth legislation authorises or requires, or where you give permission.”

24.     I note that this statement is different and notably less ambiguous than the statement included in the Activity Agreement.

25.     On 28 April 2008 a Centrelink Officer spoke to Mr Lobendahn and contemporaneous notes of the conversation indicate that again he continued to express concerns about privacy.

26.     On 29 April 2008 Mr Lobendahn was informed by letter that his failure to enter into an Activity Agreement was recorded as a newstart participation failure.

27.     On 7 May 2008 Mr Lobendahn attended an appointment at CRS Australia and again refused to sign an Activity Agreement. Contemporaneous notes indicate that Mr Lobendahn continued to express concerns about privacy, in particular the words “special circumstances”, and wanted the Activity Agreement to be changed before he would agree to sign it.

28.     The notes also indicate that the CRS Australia officer tried to discuss the relevant issues with Mr Lobendahn and provided him with additional information as well as suggesting other resources that would assist him in addressing his concerns.

29.     Despite this, Mr Lobendahn maintained his position and refused to sign the agreement.

30.     On 12 May 2008 Mr Lobendahn was informed by letter that a second newstart participation failure had been recorded, and in the letter he was informed of the consequences of committing three failures in a 12 month period.

31.     On 2 June 2008 Mr Lobendahn attended an appointment at CRS Australia and again refused to sign an Activity Agreement.

32.     On 13 June 2008 Mr Lobendahn was informed by letter that as a result of his failure to enter into an Activity Agreement a third newstart participation failure had been recorded and was advised that an eight week non-payment period commencing 14 June 2008 would be applied in respect of his newstart allowance.

33.     On 24 June 2008 CRS Australia wrote to Mr Lobendahn advising him of an appointment on 1 July 2008 for the purpose of reviewing his Activity Agreement.

34.     The letter clearly stated that a failure to attend the appointment without a valid reason may be considered a participation failure and may lead to his Centrelink benefit being stopped.

35.     Mr Lobendahn did not attend this appointment. He subsequently contacted CRS Australia on 7 July 2008 and indicated that he had got his dates mixed up and thought that his appointment was on 8 July 2008.

36.     On 18 July 2008 Centrelink informed Mr Lobendahn that they had decided to record his failure to attend the appointment as a newstart participation failure and that newstart allowance was not payable for a period of eight weeks commencing 12 July 2008.

37.     In his oral evidence Mr Lobendahn stated that he had no difficulty with the Activity Agreement itself with regard to the participation requirement, but was concerned that his personal medical information could go to unnamed third parties and contractors of Centrelink.

38.     Mr Lobendahn confirmed his concerns noted above in respect of the information included in the document about privacy, in particular, the words “special circumstances”. He said that he was unable to get a satisfactory explanation of the implication of these words in respect of his perceived rights of privacy.

39.     Mr Lobendahn conceded that he had previously signed similar Activity Agreements, albeit in a different format, and had not raised any concerns about privacy at that time because he had been unaware of procedures and practices in regards to personal information. He explained that it had become more of an issue for him in 2008 because of his recent personal experience with the procedures of NSW Health with regard to information after his daughter was born.

40.     In response to questions from the Tribunal, Mr Lobendahn admitted that one of the reasons he didn’t sign the Activity Agreement was because he thought that by signing the document he was giving permission for his personal information to be given to third parties.

41.     In the course of his evidence it became clear that Mr Lobendahn had misunderstood the purpose of the inclusion of the information in respect of privacy in the Activity Agreement and that it was merely information and not part of the agreement itself. It became clear that he appeared to be confused about the relevant issues and had been somewhat unwilling to accept what appeared to be reasonable attempts at explanation.

42.     In respect of his failure to attend CRS Australia on 1 July 2008 Mr Lobendahn admitted that it was a genuine mistake on his part. The excuse he provided was that when he received the letter he was on his way out the door to pick up his daughter and only quickly looked at it assuming that the appointment would be on a Monday or Tuesday in the week commencing 7 July 2008.

43.     I note that the letter was sent on 24 June 2008.

CONSIDERATION

44.     As noted above, the relevant questions in this case are whether Mr Lobendahn had a reasonable excuse to refuse to sign an Activity Agreement on any or all of the three occasions on 2 April 2008, 7 May 2008 and 2 June 2008 and whether he had a reasonable excuse for his failure to attend a duly notified appointment on 1 July 2008.

45.     At the relevant time, the Social Security (Reasonable Excuse) (DEWR) Determination2006 (“the Reasonable Excuse Determination”) was the legislative instrument required by subsection 624(2A) of the Act setting out matters which the Secretary must take into account for the purposes of determining whether a person had a reasonable excuse for committing a newstart participation failure.

46. The instrument, however, is not exhaustive as subsection 624(2B) of the Act provides that a determination under subsection (2A) does not limit the matters that the Secretary may take into account.

47.     There is no evidence before me that any of the matters listed in the Reasonable Excuse Determination apply to Mr Lobendahn’s factual situation. In particular, there was no evidence before me that at the relevant times Mr Lobendahn’s medical problems prevented him from complying with the statutory requirements.

48.     Therefore I must consider whether there was any other relevant matter that I must take into account in determining whether Mr Lobendahn had a reasonable excuse for any or all of his newstart participation failures.

49.     The respondent submits that the information sheet attached to the Activity Agreement is not part of the agreement and that newstart recipients are not asked to consent to it. Rather, they are being asked in the substantive part of the agreement to commit to undertake preparing for work activities or job search activities. Also, regardless of whether a newstart recipient signs an Activity Agreement Centrelink’s obligations and responsibilities in relation to the handling of their clients’ personal information is governed by legislation.

50.     On this basis, the respondent contends that Mr Lobendahn’s concerns about privacy and, in particular, the wording of the information sheet attached to the Activity Agreement cannot be considered a reasonable excuse for not entering into that agreement.

51.     While I accept the substance of the respondent’s submission I have decided that in respect of Mr Lobendahn’s failure to enter into an Activity Agreement on 2 April 2008 he had a reasonable excuse, and that therefore this failure was not a newstart participation failure.

52.     In doing so I am mindful of the decision of the Federal Court in Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988 where in considering the question as to whether a person had a reasonable excuse Kiefel J observed at [6] that:

… 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…

53.     Her honour went on to say at [7]:

It follows, in my view, that 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 enquiry by reference to it. It simply requires a consideration of the excuse put forward...

54.     On 2 April 2008 Mr Lobendahn was asked to sign a document which for reasons noted above raised significant concerns in his mind.

55.     The fact that these concerns may have been unfounded in reality does not, in my view, mean that he was not entitled to be given an opportunity to have these concerns addressed.

56.     Therefore, I am satisfied that Mr Lobendahn had a reasonable excuse not to sign the Activity Agreement on this occasion so that he had time to seek appropriate advice and consider his options.

57. This means that pursuant to subsection 624(2) his failure to enter into an Activity Agreement on 2 April 2008 was not a newstart participation failure.

58.     However, after having considered all the evidence I am of the view that by 7 May 2008 Mr Lobendahn had sufficient time to address his concerns and his failure to do so was significantly contributed to by an apparent unwillingness to accept reasonable advice.

59. Therefore, I am satisfied that on 7 May 2008 and 2 June 2008 Mr Lobendahn did not have a reasonable excuse for his failures to enter into an Activity Agreement and that pursuant to subsection 624(1)(c) these failures were newstart participation failures.

60.      In respect of Mr Lobendahn’s failure to attend an appointment with CRS Australia on 1 July 2008 I found his reasons confused and unconvincing and was not satisfied that he had a reasonable excuse for his failure.

61.     In deciding I note that Mr Lobendahn had several years experience with newstart allowance and was well aware of the requirements and the consequences of failing to meet those requirements. In addition, at the time he was well aware of already having three newstart participation failures recorded in 2008 and should have been more attentive to any correspondence from Centrelink.

62. Therefore, as Mr Lobendahn did not have a reasonable excuse, his failure to attend the appointment was a newstart participation failure pursuant to subsection 624(1)(a) of the Act.

63. In respect of subsection 629(3) I am satisfied that, after having considered the evidence before me, there is no other reason for subsection 629(1) not to apply.

Decision

64.     For the reasons outlined above, the decision under review is varied as follows:

(a)Mr Lobendahn had a reasonable excuse for failing to enter into a Newstart Activity Agreement on 2 April 2008 so that pursuant to subsection 624(2) of the Social Security Act 1991 he did not commit a newstart participation failure on 2 April 2008;

(b)Mr Lobendahn committed three newstart participation failures on 7 May 2008, 2 June 2008 and 1 July 2008; and

(c)As a consequence of the three newstart participation failures committed on 7 May 2008, 2 June 2008 and 1 July 2008 pursuant to subsection 629(1)(a) of the Social Security Act 1991 newstart allowance is not payable to Mr Lobendahn for a period of eight weeks.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

Signed:         ............[sgd]...................................................................
  Associate

Date of Hearing  16 June 2009
Date of Decision  2 July 2009
Appearance for the Applicant        Self-represented
Appearance for the Respondent    Ms S Memmott, Centrelink Legal Services   and Procurement Branch