Peranovic; Department of Family and Community Services

[2001] AATA 761

DECISION AND REASONS FOR DECISION [2001] AATA 761

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/598

GENERAL ADMINISTRATIVE DIVISION         )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Applicant
           And    ROBERT PERANOVIC    
  Respondent

DECISION

Tribunal       Ms J Cowdroy, Member     

Date5 September 2001

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution decides that: (i)           The respondent failed to comply with a requirement of his Newstart Activity Agreement; and (ii)       The respondent had not taken reasonable steps to comply with the requirement.            
  ................Signed..............................
  J Cowdroy
  Member
CATCHWORDS
SOCIAL SECURITY – newstart activity agreement – whether reasonable steps taken to comply with agreement

Social Security Act 1991 ss 593, 601

REASONS FOR DECISION

5 September 2001 Ms J Cowdroy, Member     

1. By decision dated 12 June 2001, the Social Security Appeals Tribunal set aside the Secretary's decision of 25 January 2001, as affirmed by an authorised review officer on 3 May 2001, that Mr Peranovic was subject to a newstart activity test breach, with consequent reduction of pension at the rate of 24 per cent for the period 11 January 2001 to 11 July 2001.

2. An application for review of that decision by the Administrative Appeals Tribunal was received on 10 July 2001. 

3. At issue was whether the respondent failed to comply with a requirement of his newstart activity agreement and if so, whether he had taken reasonable steps to comply with that requirement. 

APPLICANT'S SUBMISSIONS

1. The respondent had entered into a Customer Declaration Form Newstart Allowance on 21 September 2000 (T4), in which he acknowledged he had been issued with a jobseeker diary. He agreed to approach at least 10 employers per fortnight and record the details in the diary.   On the same day, he entered into a "Preparing for Work Agreement"  (T6), in which he agreed to approach 10 employers per fortnight, record the details in the diary for the period 21 September 2000 to 5 January 2001 and that he would return the completed diary on 5 January 2001.

2. In both those documents, information was provided about the consequences of failing to comply with the terms of the agreements.   Correspondence from Centrelink (T10-40) to the respondent reminded him of his obligations to complete the diary in accordance with his agreement.

3. The respondent's jobseeker diary, covering six fortnights commencing on 21 September 2000, was returned to Centrelink and no employer details were provided for the entire period of the diary.   There is provision in the diary for an explanation where a person has not been able to seek work due to "special circumstances" and the respondent had indicated that his special circumstances were:  "not enough money to look or keep the job" (T25).

4. On 18 April 2001, Centrelink had been provided with a list of 25 job contacts, (T32), which was short of the required 60.  None of those names were recorded in the jobseeker diary.   Consequently, it was contended that the respondent had failed to comply with a term of the Newstart Activity Agreement, in that his job seeking activities were inadequate as he did not contact sufficient prospective employers, and the names of those who he did contact were not recorded in the jobseeker diary.  It was contended that the respondent had the capacity to meet his obligations, which amounted to an average of one inquiry per day.

5. In respect of whether the respondent had taken reasonable steps to comply with his obligations, it was contended that the main reason for non-compliance was a matter within his control and therefore reasonable steps had not been taken.

RESPONDENT'S SUBMISSIONS

1. The respondent contended that his non-compliance with the terms of his agreement with Centrelink in relation to his job seeking efforts was attributable to straitened financial circumstances.  He said he had insufficient money to dress in a clean and tidy manner in order to approach prospective employers, as he could not afford to wash his clothes.  He said he was hungry and looking for food and these activities prevented him from looking for work.   Even if he managed to find a job, he insisted he would be unable keep it because he would not be able to maintain himself.  He did not have a phone connected in his name, although he had access to his brother's phone, who lived across the hallway.  He sometimes had access to the family car and he owned a bicycle, which was sometimes inoperable. 

2. He expressed his frustration at receiving contradictory advice from Centrelink about the status of his newstart allowance payments.  He believed he had been treated unfairly by some of the staff.  He referred to his non-compliance as a political statement in protest at the requirement to complete the jobseeker diary, which he perceived fulfilled no useful purpose and which he thought may be an illegal requirement, in any event.  He said "I chose not to fill it in".

3. However, he kept a record of the jobs for which he had applied, which was a combination of cold canvassing and responding to advertised vacancies.  He stated that in addition to the 25 names he had provided, he had contacted other prospective employers.

4. The respondent stated he spent a considerable amount of time, "fighting Centrelink", as well as looking for food, fixing his bike and said that he spent three days at Centrelink trying to resolve ongoing problems with his newstart allowance, which did not leave much time to seek work.  He acknowledged that he received some support from his sister and other family members.  He said he applied for numerous other jobs during the period in question but had not kept a record of the contacts he had made.  He said that he had applied for three times the amount of jobs listed at T32.

FINDINGS

1. It is not disputed that the respondent failed to comply with a term of his newstart agreement, in that he did not complete a jobseeker diary in the manner that was agreed to.

2. The main reason for the failure to comply was not due to the respondent's impoverished financial circumstances.  

3. The Tribunal finds that throughout the period of the jobseeker diary, the applicant was receiving the maximum rate of newstart allowance and rent allowance to which he was entitled, less a withholding in respect of an overpayment made some time earlier.  It was not the case that his payments fluctuated to any great extent, and the conflicting advice conveyed to the respondence in the letters from Centrelink had no effect on the amount of his newstart allowance.

4. Although the respondent provided a list of 25 employers he had contacted during the period encompassed by the jobseeker diary, this was insufficient to meet his obligations, and in any event, their names were not recorded in the diary.

5. The respondent's evidence left no doubt that he was capable of contacting the required number of potential employers and recording the details in the jobseeker diary, if he had chosen to do so.  That he did not did so was, to a significant degree, motivated by a desire to bring to the department's attention his dissatisfaction with the requirement to keep a jobseeker diary and other grievances in respect of his dealings with Centrelink.

THE LEGISLATION AND ITS APPLICATION

1. Section 593(1) and (2A) of the Social Security Act 1991 ("the Act"), sets out the qualification for newstart allowance:

   SECTION 593 QUALIFICATION FOR NEWSTART ALLOWANCE

   593(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

   (ii)       the person is a CDEP Scheme participant in respect of the period; and

   ……
   (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; and

   (c)       if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and
   (d)       if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and
   (e)       if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and
   (f)        while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
   ……
   (g)       throughout the period the person:

   (i)        subject to subsection (2B), is at least 21 years of age and has not reached the pension age; and

   (ii)       is an Australian resident; and

   (i)        the person was not in receipt of a youth allowance during the period.

   ……

   593(2A) For the purposes of paragraph (1)(f) or (2)(f), a person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement unless the person has failed to comply with the terms of the agreement and:
   (a) the main reason for failing to comply involved a matter that was within the person's control; or

   (b) the circumstances that prevented the person from complying were reasonably foreseeable by the person

1. Section 601(1) of the Act sets out the manner in which a person satisfies the activity test. It states:

   SECTION 601 ACTIVITY TEST
   601(1) Subject to subsections (1A) and (3), 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.

2. Section 601(5) states:

   601(5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).

3. Applying this sub-section to the present circumstances, even if the respondent satisfies the Secretary that he was actively seeking and willing to undertake paid work that is suitable, the effect of failure to take reasonable steps to comply with the terms of a newstart activity agreement means he cannot be taken to satisfy the activity test.

4. It was acknowledged by the applicant that various letters that had been sent to the respondent would have created confusion.  The Tribunal was mindful of the fact that the respondent experienced frustration at receiving conflicting advice about the status of his newstart allowance and the time expended in trying to resolve these issues.  However, as was pointed out during the hearing, such matters have no relevance in assessing whether the respondent took reasonable steps to comply with a term of his newstart agreement.

5. The main reason why the respondent failed to comply with the terms of his Newstart Activity Agreement was a matter of personal choice.  Whilst he may have experienced financial difficulties during the period of the jobseeker diary, he managed to contact 25 potential employers whose names and details he recorded, as well as many others which were not recorded.  The respondent's evidence on that aspect demonstrated to the Tribunal an ability on his part to fulfil his obligations if he chose to do so.

6. That he chose not do so in protest against what he perceived as an unreasonable and unjustifiable requirement is a matter that was within his control.  Consequently, the Tribunal finds that the respondent did not take reasonable steps to comply with the terms of a Newstart Activity Agreement, as a result of which he did not satisfy the activity test throughout the period of the jobseeker diary.

   I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

   Signed:         .....................................................................................
              B. Hitchchco, Secretary

   Date of Hearing  6 August 2001
   Date of Decision  5 September 2001
   For the Applicant  Mr P Kanowski, Departmental Advocate
   For the Respondent                 In Person