Pickering and Secretary, Department of Family and Community Services

[2002] AATA 882

DECISION AND REASONS FOR DECISION [2002] AATA 882

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/618

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

DECISION

Tribunal       Mr O Rinaudo, Member    

Date4 October 2002 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.          

..................(Sgd).......................
  O Rinaudo
  Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – activity test – whether applicant has breached activity test – whether applicant had unreasonably delayed entering agreement - imposition of rate reduction for breach

Social Security Act 1991 ss 607, 625, 625(1A), 644 AA, 644AE

Re Thomas and Department of Family and Community Services [2001] AATA 618
Thornton v Repatriation Commission (1981) 52 FLR 285
Re Geeves and Department of Social Security (1996) 41 ALD 467

Re Chadwick and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT Decision 11524, 11 December 1996)

Re Hoang and Department of Family and Community Services [2001] AATA 597

REASONS FOR DECISION

4 October 2002       Mr O Rinaudo, Member                

Decision under Review

1. The applicant, Mr Jeffrey Pickering, appeals against a decision made by the Social Security Appeals Tribunal on 13 June 2002 affirming a decision made by Centrelink on 19 February 2002, and affirmed by an Authorised Review Officer on    17 May 2002, to impose an activity test breach and rate reduction of 18% for the period 19 February 2002 to 19 August 2002.
   Evidence

2. At the hearing of this application on 12 September 2002, in addition to the "T" documents which were marked Exhibit 1 and contemporaneous handwritten notes by an employee of Mission Employment, Mr Lou Gatti (Client Manager) which was marked Exhibit 2, evidence was given by Mr Pickering, the applicant, and from Mr Gatti.

3. Mr Pickering told the Tribunal that he was aware of the interview which had been set up for him for 22 January 2002 to negotiate his Preparing for Work Agreement which was to include intensive assistance.  Mr Pickering told the Tribunal that he "completely forgot" the appointment.  Although there was some suggestion that Mr Pickering had not received the letter sent to him by Mission Australia on       3 January 2002 (T5 Folio 22) advising him of the interview, it was clear from his response that he must have received the letter as he did not attend the interview because he had forgotten.  Mr Pickering told the Tribunal that letters had been taken out of his mail box and he had not received some letters for this reason.

4. Mr Pickering also noted that he was not sure if he had received the letter sent to him on 23 January 2002 (T7 Folio 30) advising him of the new appointment day on 29 January 2002.  This letter says:

   "I am obliged under the Social Security Act 1991 to inform Centrelink if you do not contact me before 29 January 2002 to arrange another interview."

5. Mr Pickering acknowledged that he must have received this letter because he went to Mission Australia on 29 November 2002.  When questioned about this, Mr Pickering indicated that whilst his reading was not good he was able to read and understand documents.  He told the Tribunal that he understood the letter to mean that he was to attend at Mission Australia on 29 January 2002. 

6. Mr Pickering's evidence was that he attended at Mission Australia on            29 January 2002 and waited for about half an hour to see Mr Gatti.  Eventually, the applicant was advised by a friend that there was a prospect of a job.  This friend was a person by the name of Ian Mason.  This friend told him that he was to turn up at a car yard at 11 am and to put his name down.  Mr Pickering stated that upon receiving this information he went over to the cubicle where Mr Gatti was sitting, interrupted him and said to him that he was leaving and to make another appointment for him.  Mr Pickering told the Tribunal that he knew that all interviews were important and also knew that if he did not go to an interview he could have his rate of payment varied.

7. Mr Pickering stated he did not receive the letter sent to him by Centrelink on       4 February 2002 as by then he had left the address.  He confirmed that he had not notified Centrelink of the change of address.  When asked, he advised that he did not concern himself with making arrangements to obtain mail after he had left a particular address because "I don't worry about mail".  He said that he eventually told Centrelink of his change of address.

8. Mr Pickering was unable to say with certainty when he had left the address.  Under cross-examination he admitted that he may well have been at the address on the date the letter would have been received.

9. Mr Gatti gave evidence to the Tribunal confirming that he had been Client Manager for Mission Australia for some two years.  He advised that his current position was in Intensive Assistance.  He confirmed that he was the Case Manager for the applicant. 

10. Mr Gatti told the Tribunal that the interview had been set for Mr Pickering for 22 January 2002 as a Preparing for Work Interview which was designed to improve a person's work prospects. Mr Gatti told the Tribunal that Mr Pickering did not interrupt his interview on 29 January although he was aware that Mr Pickering was in the building as he had been advised about this.  Mr Gatti in fact went out to see Mr Pickering after the interview he was having concluded.  However, Mr Pickering had left by then.  Mr Gatti said that he tried on a number of occasions to contact Mr Pickering but was unable to do so by telephone. 

11. Although in cross-examination Mr Pickering insisted that he had interrupted Mr Gatti to tell him to arrange another interview, Mr Gatti denied this.  Mr Pickering said that his conversation with Mr Gatti had been overheard by a secretary in the office and he wished to be told the name of the secretary so that he could call her in evidence. The Tribunal determined that the secretary's privacy outweighed the assistance it might provide to Mr Pickering and to the Tribunal in this case.  The Tribunal was not prepared to adjourn the hearing so that this potential witness could be called.
    Issues

12. The only issue before the Tribunal was whether Mr Pickering had unreasonably delayed entering into a Preparing for Work Agreement to include Intensive Assistance.
    Legislation

13. The relevant legislation is contained in section 607 of the Social Security Act 1991 which says:

    "607  Newstart Activity Agreements – failure to negotiate
    607(1)  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.

    Note: refusal to enter a Newstart Activity Agreement disqualifies a person for newstart allowance – see paragraph 593(e).

    607(2)  A notice under paragraph (1)(c) must:

    (a)be in writing; and

    (b)set out the reasons for the decision to give the notice; and

    (c)include a statement describing the rights of the person to apply for the review of the decision."

Discussion of the Issues

1. Mission Employment sent Mr Pickering a letter on 3 January 2002 requiring him to attend an interview to re-negotiate his Preparing for Work Agreement to include Intensive Assistance.  Mr Pickering did not attend the interview on               22 January 2002 as he says he forgot.  On 23 January 2002, Mission Employment sent Mr Pickering a letter asking him to contact them by 29 January 2002 to arrange a further appointment.  Mr Pickering attended at the office of Mission Employment on          29 January 2002.  The only contentious issue in this application is whether on that day Mr Pickering saw his Case Manager, Mr Gatti, and told him to arrange another appointment or not. 

2. It is accepted that Mr Pickering was in the Mission Employment office on 29 January 2002. In any event, Mr Pickering admits that he left the office before arranging an appointment or discussing with Mr Gatti why he had not attended at the interview on 22 January 2002.  In fact, even on Mr Pickering's evidence, all he did was to make a request over the top of a cubicle (whilst Mr Gatti was interviewing some other client) to make another appointment.  He then left the Mission Employment office he says to put his name down for some work in town.  The Tribunal was told he did not receive employment as a result of putting his name down.

3. On 4 February 2002 Centrelink sent Mr Pickering a letter advising that he had failed to attend the interview with Mission Employment and that he may incur an activity test penalty.  The letter also advised Mr Pickering to contact Centrelink by         11 February 2002 to discuss the issue in more detail.  Mr Pickering did not contact Centrelink before 11 February 2002, and on 19 February 2002 Centrelink made a decision to impose an activity test breach and rate reduction of 18% for the period       19 February 2002 to 19 August 2002.

4. In evidence Mr Pickering said he had left the address and did not receive this letter.  However, he also told the Tribunal that he had not told Centrelink or Mission Employment of his change of address and that he did not worry about mail. 
   Submissions

5. The applicant submitted that he had not unreasonably delayed re-negotiating a Preparing for Work Agreement as although he had forgotten the interview on       22 January 2002 he had attended at the office of Mission Employment on               29 January 2002 and had told his Case Manager to arrange another appointment.  Mr Pickering said that other recipients had been given more than one interview to comply with their obligations and he should not be any different.  He submitted that it was an issue of whether Mission Employment were trying to find him work or not and accordingly he should not have been breached.

6. In oral and written submissions obtained from the representative of the respondent, it was submitted that the applicant had unreasonably delayed re-negotiating his Preparing for Work Agreement because the applicant had been required to attend an interview on 22 January 2002 at 3.00 pm which he failed to do.  He had further failed to take reasonable steps to ensure that he enter into the new Preparing for Work Agreement.  In this regard it was submitted to me that I should have regard for a number of recent decisions including the decision in Re Thomas and Department of Family and Community Services [2001] AATA 618 (2 July 2002) where Dr EK Christie, Member quoted Fisher J in Thornton v Repatriation Commission (1981) 52 FLR 285 at 290:

   "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."

7. Further, Dr Christie quoted Deputy President Blow in Re Geeves and Department of Social Security (1996) 41 ALD 467 in which it was held that unreasonable delay included the situation where "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".

8. It was further submitted to me 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" (see Re Thomas; Re Chadwick and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT Decision 11524, 11 December 1996) and Re Hoang and Department of Family and Community Services[2001] AATA 597).

9. In this case Mr Pickering gives no explanation for not attending the interview on 22 January 2002 other than he forgot.  The Tribunal is prepared to accept the evidence of Mr Pickering that he put his head over the top of a cubicle and spoke to his Case Manager, Mr Gatti, on 29 January 2002 to make another appointment.  In the Tribunal's view this is simply inadequate response by Mr Pickering given that he had missed an appointment and was attending a second appointment and was attending at Mission Employment at the request of his Case Manager to discuss his situation. 

10. The Tribunal is satisfied that even if it accepts that Mr Pickering spoke to Mr Gatti over the top of the cubicle, this was completely, inadequate and unreasonable, and showed a complete disregard for his obligations as a recipient of social security benefits.  Accordingly, the Tribunal is satisfied that Mr Pickering has in this case unreasonably delayed re-negotiating a Preparing for Work Agreement with Intensive Assistance and accordingly the decision under review is affirmed. 

11. For completeness sake, the Tribunal notes that section 625 of the Social Security Act sets out the penalty for a person who has failed to enter into a newstart agreement. In the circumstances where Mr Pickering has not had any other breach in the last two years, section 625(1A) of the Act provides the appropriate rate reduction period to be applied. Pursuant to sections 644AA and 644AE, the activity test breach rate reduction period is 18% for 26 weeks.

12. The Tribunal is satisfied in this case that the respondent took all required procedural steps in reaching its conclusion and notifying the applicant. 
    Decision

13. The decision of the Social Security Appeals Tribunal dated 13 June 2002 to affirm a decision made by Centrelink on 19 February 2002 to impose an activity test breach and rate reduction of 18% for the period 19 February 2002 to 19 August 2002 on the applicant is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  12 September 2002, Bundaberg
Date of Decision  4 October 2002

The Applicant Appeared in Person
Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate