Pettitt; Department of Family and Community Services

[2001] AATA 469

DECISION AND REASONS FOR DECISION [2001] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/1000

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      SECRETARY, DEPARTMENT OF FAMILY AND  COMMUNITY SERVICES     
  Applicant
           And    TIMOTHY ROY PETTITT
  Respondent

DECISION

Tribunal       Dr EK Christie, Member    

Date31 May 2001  

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that Timothy Pettitt unreasonably delayed entering into a Newstart Activity Agreement and, further, that the decision to apply an activity test breach rate reduction of 18% was correct.        

(Sgd)    EK CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY - activity test breach - rate reduction - whether unreasonable delay in entering newstart allowance activity agreement in circumstances - meaning of "unreasonable delay".

Social Security Act 1991 ss 607
Re Chadwick and Secretary, Department of Employment, Education, Training and Youth Affairs, AAT Decision 11524
Re Geeves and Secretary, Department of Employment, Education and Training, AAT Decision 10873
Thornton v Repatriation Commission (1981) 52 FLR 285

REASONS FOR DECISION

31 May 2001 Dr EK Christie, Member                

1. This is an application by the Secretary, Department of Family and Community Services ("the Department") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 26 September 2000 that set aside the decision of an Authorised Review Officer made on 13 June 2000.

2. The SSAT decided to substitute a new decision that an activity breach reduction at 18% for 26 weeks (from 14 April 2000 to 12 October 2000) should not be applied because "Mr Pettitt did not unreasonably delay entering into an activity agreement with his Job Network Member".

3. Centrelink imposed an activity test breach rate reduction of 18% for a six month period (14 April 2000 to 12 October 2000), the basis for this decision being that Mr Pettitt had failed to attend an interview with his Job Network Member on 31 March 2000.  The breach was imposed by Centrelink on 7 April 2000.

4. At the hearing the Department was represented by Mr R McQuinlan, Department Advocate.  Mr Pettitt represented himself.  The Department called Geoffrey Cook as a witness.

5. At the hearing, the Tribunal had in evidence before it, documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 – the "T" Documents (Exhibit 1) and the following exhibit:

• Exhibit 2            Centrelink documents marked as Attachments "A" to "F"

Issues before the Tribunal

1. The only issue before the Tribunal was whether there was "unreasonable delay", on Mr Pettitt's part, on entering into a newstart allowance activity agreement.
   Facts

2. On the basis of the evidence before it, the SSAT made the following findings:

   "(i)       Timothy Pettitt was in receipt of newstart allowance at all relevant times.

   (ii)On 13 March 2000 he was sent a letter to 28/228 Central Street, Labrador, requiring him to attend an interview with IPA Personnel, his new Job Network Member.

   (iii)He did not receive the letter and was unaware of the interview.

   (iv)On becoming aware of his new Job Network Member he made immediate contact with them." (Document T 2 Folio 8)

3. There was no dispute that Mr Pettitt entered into a newstart allowance activity agreement on 26 May 2000 (Exhibit 2, Attachment "F").
   Evidence of Geoffrey Cook, Manager, IPA Personnel, Southport

4. Mr Cook stated that Mr Pettitt had been in the Centrelink system for about ten years.  Mr Cook said that Mr Pettitt failed to attend interviews with IPA Personnel arranged for 31 March 2000 and 18 April 2000.  He said that Mr Pettitt had telephoned him on 27 April 2000, upset about his breach, and asked Mr Cook whether he could intervene on his behalf.  Mr Pettitt arrived at the IPA Personnel office on 28 April 2000 for the interview arranged and was angry and very aggressive towards staff in his behaviour.  Mr Pettitt refused to sign the activity agreement and "marched out of the office because he had been breached".  Mr Cook stated that the contact address IPA Personnel had for Mr Pettitt was the Central Street, Labrador address.  Mr Cook said that he raised this address matter with Mr Pettitt at the interview on 28 April 2000 but was not provided with any change of address in response.
   Contentions and Submissions of the Parties

5. Mr McQuinlan contended that Mr Pettitt had failed to attend a number of interviews with his Job Network Member:-

• an interview with IPA Personnel on 31 March 2000.  Notification was sent to his residential and postal address of 28/228 Central Street, Labrador (Document T9); and

• an interview arranged for 18 April 2000.

1. Furthermore, Mr McQuinlan submitted that the following issues were relevant in any consideration of why an activity breach was imposed:

• that Centrelink had advised Mr Pettitt, although he had failed to attend the interview on 31 March 2000, that he was still required to enter into an activity agreement at the interview arranged for 18 April 2000 – the second interview Mr Pettitt did not attend;

• that IPA Personnel sent an "Intensive Assistance – Possible Breach Notification" to Centrelink advising that Mr Pettitt had failed to attend the interviews on 31 March 2000 and 18 April 2000 (see Exhibit 2);

• that Mr G Cook of IPA Personnel had contacted Mr Pettitt to arrange an interview time and date for 28 April 2000.  However, Mr Pettitt refused to sign an activity agreement at this interview "because he had been breached"; and

• that on 11 May 2000, IPA Personnel advised Centrelink that Mr Pettitt had failed to sign the activity agreement by forwarding an "Intensive Assistance – Possible Breach Notification" (Exhibit 2, Attachment "D").

1. Mr McQuinlan submitted that there was some ambiguity on Mr Pettitt's part in keeping Centrelink informed of his actual address.  Mr McQuinlan further submitted that Mr Pettitt had received four duplicate "Application for Payment for Newstart Allowance" forms during the period 21 February to 10 May 2000.  The first form was issued on 21 February 2000 (Document T8).  Mr Pettitt had lodged the other three "Application for Payment for Newstart Allowance" forms with Centrelink on:
   (a)      30 March 2000 (Exhibit 2, Attachment "A");
   (b)      26 April 2000 (Document T19); and
   (c)       10 May 2000 (Document T24).
   However, the first Centrelink record provided by Mr Pettitt that he had changed his Labrador address was on the form lodged by him on 10 May 2000 (Document T24).

2. Mr McQuinlan contended that although Mr Pettitt was aware of missing mail from mail delivery problems at his Labrador address (see SSAT decision Document T2, Folio 6), he "did little, if anything, to secure its delivery".  It was Mr McQuinlan's contention that the fact that Mr Pettitt had to seek four duplicate "Application for Newstart Allowance Payment" forms in a relatively short period of time should have been sufficient to put him on notice that there were problems with his mail.  It was therefore reasonable to expect that Mr Pettitt would take additional or more timely steps to receive his mail.  For example, by having his letterbox repaired, redirecting his mail or providing Centrelink with some alternative address.

3. Mr McQuinlan further contended that notwithstanding mail delivery problems claimed by Mr Pettitt, he still received Centrelink letters and forms sent to his Labrador address (Exhibit 2, Attachment "B").

4. Accordingly, it was Mr McQuinlan's contention that the reason Mr Pettitt may not have received his mail was within his control.  However, Mr Pettitt did not take any, or insufficient, action to secure his mail.

5. Mr McQuinlan concluded that Mr Pettitt, by failing to attend interviews on 31 March 2000 and 18 April 2000, together with his conduct during the interview on 28 April 2000, had unreasonably delayed entering into a newstart allowance activity agreement.

6. Mr Pettitt stated that he generally agreed with Mr Cook's evidence except that he disputed the following matters:

• that he swore at IPA Personnel staff.  However, he conceded that he may have been aggressive; and

• that he had not taken steps to secure his mail.  Mr Pettitt said that he continued to have problems with his flatmate in this regard (see Document T2, Folios 5 and 6).

1. Mr Pettitt stated that he was aware of the activity rate breach when he attended the IPA Personnel office on 28 April 2000 and became frustrated when he was given no explanation as to why he had been breached.  Furthermore, he was given no opportunity to find out the reason, but rather was asked to leave the office.  Mr Pettitt said that he felt he had been deceived in being required to attend this interview as his impression from Mr Cook's phone request for this interview was that it would be for the purpose "of restoring his breach".  Because of all of these reasons, and his frustration, he refused to sign the activity agreement at that time.
   The Law

2. The relevant legislation is contained in Section 607 of the Social Security Act 1991 which states:

"If:

(a)a person has been given notice under subsection 605(3) of a requirement to enter into a Newstart Activity Agreement; and

(b)because the person did not:

(i)attend the negotiation of the agreement; or

(ii)respond to correspondence about the agreement; or

(iii)agree to terms of the agreement proposed by the Secretary;

or for any other reason, the Secretary is satisfied that the person is unreasonably delaying entering into the agreement;

then:

(c)the Secretary may give the person notice that the person is being taken to have failed to enter the agreement; and

(d)if the notice is given – the person is taken to have so failed."

Consideration of the Issues

1. The objective of the Tribunal is to review administrative decisions, not only on their merits but in accordance with the law at all times.

2. There is no dispute that Mr Pettitt failed to attend interviews on 31 March 2000 and 18 April 2000.  At issue, however, is whether such non-attendance should be taken to amount to "unreasonable delay" in entering an agreement.

3. The meaning of "unreasonable delay" has been considered judicially:

• In Thornton v Repatriation Commission (1981) 52 FLR 285 at 290, Fisher J stated:

  "In my opinion a delay is unreasonable if it can be said that no reasonable man acting in good faith would in the circumstances have approved the delay."

• In Re Geeves and Secretary, Department of Employment, Education and Training (AAT Decision 10873), the Tribunal held that unreasonably delaying entering an Agreement "involves some mental element".  For example, the Tribunal held that a person unreasonably delays entering into a Case Management Activity Agreement if "he or she is aware of an appointment notified pursuant to s.38(5)(b) for the negotiation of the agreement and, without any reasonable cause or excuse fails to attend that appointment".

• In Re Chadwick and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT Decision 11524), the Tribunal held that whether a person has unreasonably delayed entering into a Case Management Agreement must be determined objectively by considering what a reasonable person would do.

1. In determining the issues in dispute, the Tribunal must apply these authorities to the facts, objectively, to decide whether Mr Pettitt had a reasonable excuse for the delay in entering into the newstart allowance activity agreement on 26 May 2000.  The Tribunal has carefully examined the submissions by the parties and all the evidence and information before it.

2. Whilst Mr Pettitt has stated that mail delivery problems had resulted in his not receiving Centrelink notices of interview, the Tribunal finds that there was evidence before it – which was not available to the SSAT – that indicates that there was no such problem with "Application for Payment for Newstart Allowance" forms lodged (paragraphs 12 and 14).  In addition, Mr Cook's evidence was that at the time of the 28 April interview, the Centrelink record of Mr Pettitt's address remained the Labrador address, notwithstanding Mr Pettitt had been given an opportunity to notify a change of address (paragraph 9).

3. Mr Pettitt had three opportunities to enter into the activity agreement:  31 March 2000, 18 April 2000 and 28 April 2000.  Whilst the Tribunal accepts the evidence of Mr Pettitt that he did not receive the notices advising him of the interview on 31 March 2000 and 18 April 2000, the central issue remains whether Mr Pettitt "unreasonably delayed" entering into the activity agreement.

4. Mr Pettitt has been a recipient of Centrelink benefits for some time (paragraph 9).  He had been sent notices of failing to attend interviews arranged and the consequences for failing to attend (paragraph 11).  Also, he had to seek four duplicate "Application for Newstart Allowance Payment" forms over a short period of time which indicated problems with his mail. 

5. It is the Tribunal's view that Mr Pettitt did not take sufficient action to ensure delivery and receipt of his mail – given that this was within his control.  His failure to attend the interview on 31 March 2000 (from which Mr Pettitt was breached) and on 18 April 2000 were a consequence of his failure to take sufficient action to control his mail.  The failure to enter into an agreement on 28 April 2000 arose independently of this reason.

6. The Tribunal also makes the observation that Mr Pettitt, as a social security recipient for many years, could reasonably be expected to be aware of his obligations as a recipient – including the obligation to complete a newstart allowance activity agreement.

7. The Tribunal makes the observation that the breakdown in communication between Mr Pettitt and Mr Cook at the 28 April 2000 interview appears to be a misunderstanding of the purpose of the interview.  The Tribunal concludes that the conduct of Mr Pettitt in these circumstances is not a relevant consideration in this application for review.

8. For all of the above reasons, the Tribunal is satisfied that, on applying the legal authorities (paragraph 22), Mr Pettitt's failure to attend the interviews on 31 March 2000 and 18 April 2000 represents an "unreasonable delay" in entering the newstart allowance activity agreement.

9. The Tribunal decides to set aside the decision under review and in substitution therefor decides:

(a)that Timothy Pettitt unreasonably delayed entering into a newstart activity agreement; and

(b)that the decision to apply an activity test breach rate reduction of 18% was correct.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  26 April 2001
Date of Decision  31 May 2001
Solicitor for the Applicant         Mr R McQuinlan, Departmental Advocate
Rep. for the Respondent         Respondent appeared in person