Pittorino and Department of Family and Community Services

[2002] AATA 558

DECISION AND REASONS FOR DECISION [2002] AATA 558

ADMINISTRATIVE APPEALS TRIBUNAL        Nº W2001/293
GENERAL ADMINISTRATIVE DIVISION
  Re:         JASON PHILLIP PITTORINO

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             8 July 2002
Place:            Perth

Decision:For reasons given orally at the hearing, the Tribunal sets aside the decision under review and substitutes a decision that:

(a) the applicant's failure to attend an interview on 9 and 24 January 2001 constitutes a breach of the activity test under s607(1) of the Social Security Act 1991 and that the newstart allowance be reduced by 18% for a period of 26 weeks; and

(b) the applicant's failure to attend an interview on 27 February 2001 constitutes a second breach of the activity test under s607(1) of the Social Security Act 1991 and that the newstart allowance be reduced by 24% for a period of 26 weeks.

…………(sgd G D Friedman)……….

Member

1. SOCIAL SECURITY - newstart allowance - failure to attend interviews - activity test breach

Social Security Act 1991 s601, 607, 625(1), 625(1A), 644AA, 644AE(2)

REASONS FOR DECISION

8 July 2002  G.D. Friedman, Member

1. This is an application by Jason Phillip Pittorino (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 1 November 2001, which affirmed decisions of Centrelink dated 24 January 2001, 21 February 2001 and 27 February 2001.  In the Centrelink decisions an authorised review officer affirmed the decision to impose two rate reductions and an eight-week non-payment period to the applicant's newstart allowance because of breaches of the activity test.

2. At the hearing of this matter on 8 July 2002 the applicant represented himself and Mr A. Jones, Centrelink advocate, represented the Department of Family and Community Services (the respondent).
   BACKGROUND

3. The applicant was receiving newstart allowance.  Centrelink claimed that it informed him by letters dated 13 December 2000 and 11 January 2001 that he should attend interviews at Mission Employment in Rockingham (Rockingham) on 9 January 2001 and 24 January 2001 respectively, to negotiate a preparing for work agreement, and that he did not attend.  Centrelink imposed three separate activity test breaches.  On 15 May 2001 an authorised review officer affirmed each decision and on 25 May 2001 the applicant sought review by the SSAT.  Following the decision of the SSAT the applicant on 20 August 2001 lodged an application with the Tribunal for review of the decision by the SSAT.
   EVIDENCE

4. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with one exhibit (Exhibit R1) tendered on behalf of the respondent.   

5. The applicant gave oral evidence and told the Tribunal that he received the letters informing him of the appointments on 9 and 24 January 2001. He said that telephoned Mission Employment before the first appointment asking that the interviews be conducted at the Centrelink office at Fremantle (Fremantle) as this was more convenient for him.  He said that a person he knew as Mandy assured him that as long as he made the arrangements with Fremantle then he need not attend at Rockingham.  He stated that he cancelled the first Rockingham appointment and would have followed the same procedure for the second appointment.

6. The applicant said that, in relation to the appointment scheduled for 27 February 2001, he probably did receive the letter of 12 February 2001 notifying him of the appointment.  He agreed that his statement to the SSAT that he did not receive the letter was probably incorrect.  Under cross-examination the applicant agreed that a file note made by Centrelink on 16 March 2001 after he attended Fremantle and explained his reasons for not attending the appointment on 27 February 2001 was probably correct.  He disputed the evidence given to the SSAT by Mr Lindsay Nicholson, the applicant's case manager at Rockingham, that Mr Nicholson explained to the applicant that any change in appointments would need to be arranged with Centrelink.
   CONSIDERATION OF THE ISSUES

1. Section 601 of the Social Security Act 1991 (the Act) provides that Newstart Allowance is subject to an activity test. Section 607(1) of the Act provides that:

   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.

Section 601(2) provides that:

A person also satisfies the activity test in respect of a period if:

(a)       the Secretary is of the opinion that, throughout the period, the person:

(i)should undertake particular paid work, other than paid work that is unsuitable to be done by the person; or

(ia)should participate in an approved program of work for unemployment payment;

…       

(b)the Secretary notifies the person that the person is required to act in accordance with the opinion; and

(c)the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement.

Section 601(6) defines reasonable steps:

For the purposes of this section, a person takes reasonable steps to comply with a notice under subsection (1A), with a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply 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. Mr Jones submitted that the applicant failed to attend interviews on 9 and 24 January 2001 (the first breach), 21 February 2001 (the second breach), and 27 February 2001 (the third breach).  He stated that by not attending the scheduled interviews the applicant had failed to enter an agreement without reasonable excuse.

1. Mr Jones stated that in relation to the second breach the respondent accepted that the notice issued to the applicant under s607(1)(c) advising him that he was considered to have failed to enter the agreement was posted on the same day as the day on which the breach was imposed. Mr Jones said that for this reason the applicant satisfied the requirements of s607(1) of the Act. He submitted that for the other breaches there was no reasonable excuse for the failure of the applicant to comply with the requirements of the Act, and that there were inconsistencies in the evidence given by the applicant. Mr Jones referred to the file note dated 16 March 2001 as evidence that the applicant did not contact Centrelink until that date, being several weeks after his appointments at Rockingham.

1. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.  In relation to the first and third breaches the Tribunal is satisfied that the applicant was aware of the details of the scheduled appointments at Mission Employment, Rockingham on 9 and 24 January 2001 and 27 February 2001 and that he should have attended.  The Tribunal finds that the recollection of the applicant is not accurate or consistent, and that there is no oral or written evidence to support his recollection of his version of events.  The Tribunal accepts that the applicant may have become confused by his understanding of any conversation he may have had with staff at Rockingham, and that the file note of 16 March 2001 is the most accurate record of contact made by the applicant after the various appointments at Rockingham were missed.

1. For these reasons the Tribunal accepts the submission by Mr Jones that, in relation to the first and third breaches, the applicant unreasonably delayed entering agreements concerning his obligations under the terms of newstart allowance by not attending the scheduled interviews.

1. In relation to the second breach the Tribunal accepts the submission by Mr Jones and finds that the breach is not made out.

1. For these reasons the Tribunal finds that two activity breaches have occurred within the relevant period of two years, and the appropriate cancellation of newstart allowance is as set out in s625(1) and s625(1A) of the Act.  For the first breach the appropriate reduction in newstart allowance is 18% for a period of 26 weeks (s644AA of the Act), and for the third breach (which becomes a second breach for the purposes of the Act) the appropriate reduction in newstart allowance is 24% for a period of 26 weeks (s644AE(2) of the Act)).

DECISION

1. For reasons given orally at the hearing, the Tribunal sets aside the decision under review and substitutes a decision that:

(a) the applicant's failure to attend an interview on 9 and 24 January 2001 constitutes a breach of the activity test under s607(1) of the Social Security Act 1991 and that the newstart allowance be reduced by 18% for a period of 26 weeks; and

(b) the applicant's failure to attend an interview on 27 February 2001 constitutes a second breach of the activity test under s607(1) of the Social Security Act 1991 and that the newstart allowance be reduced by 24% for a period of 26 weeks.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member

(sgd)       Jason Lim
              Associate

Date of hearing:  8 July 2002
Date of decision:  8 July 2002
Advocate for applicant:               Self-represented
Advocate for respondent:        Mr A. Jones, Centrelink