Price and Secretary, Department of Employment and Workplace Relations

[2006] AATA 518

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W2005/380

GENERAL ADMINSTRATIVE  DIVISION		)
Re		JOHN PRICE

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date14 June 2006

PlacePerth

Decision The decision of the Social Security Appeals Tribunal dated 17 October 2005 is affirmed.

...........[Sgd. Mr A Sweidan].......................

Senior Member

CATCHWORDS

Social Security Appeal from decision of SSAT – Failure to undertake required number of jobsearch contacts.

REASONS FOR DECISION

14 June 2006 Mr A Sweidan, Senior Member    

Background

1.        This is an appeal against a decision of the Social Security Appeals Tribunal dated 17 October 2005.  At the hearing the applicant represented himself and gave evidence in support of his appeal.  The respondent was represented by Mr Frank Nipperus a Legal Services Officer in Centrelink’s Legal Services Branch.

2.        The respondent’s Statement of Facts and Contentions reads as follows:

3.1Mr John Price was granted Newstart Allowance from 20 October 1997 and has been in receipt of that benefit from that date. (T4;P60 - 104)

3.2Mr Price was receiving Newstart Allowance when on 13 September 2004 he signed a Preparing for Work Agreement which also included a Job Search Plan  for the period 13 September 2004 to 14 March 2005. (T9; P120 - 128).

3.3On 31 August 2004 Centrelink wrote to Mr Price. That letter stated, "You recently developed a Participation Agreement with us.  This sets out the activities which you agree to do.  Please feel free to contact us if you would like to talk about how you are going with your agreement.  Remember that you need to keep following your agreement while you are receiving Newstart Allowance.   If you are finding it hard to do any of the agreed activities, or if you feel that you are not getting the right help or support, we would be happy to discuss this with you." (Attachment A).

3.4Included in this agreement among other things was the requirement  for Mr Price  ‘from 13.09.04 to 14.03.05 undertake 4 job search contacts per fortnight and record these job search contacts on my application for payment forms.  These job search contacts will include all types of suitable work …’ (T9;P123) (J02).

3.5On Mr Price's Application for Payment Form that he lodged on the 1 October 2004 and that covered the period 21 August 2004 to the 1 October 2004 (6 weeks), he provided the names of 4 Jobsearch contacts instead of the required 12 contacts (T6;P111)

3.6On Mr Price's Application for Payment Form that he lodged on the 29 October 2004 and that covered the period 2 October 2004 to the 29 October 2004 (3 weeks), he provided the names of no Jobsearch contacts instead of the required 6 contacts. (T7;P113)

3.7On Mr Price's Application for Payment Form that he lodged on the 26 November 2004 and that covered the period 30 October 2004 to the 26 November 2004 (4 weeks), he provided the names of no Jobsearch contacts instead of the required 8 contacts.  (T8;P115)

3.8On Mr Price's Application for Payment Form that he lodged on the 22 December 2004 and that covered the period 27 November 2004 to the 24 December 2004 (4 weeks), he provided the names of no Jobsearch contacts instead of the required 8 contacts.  (A4 to Centrelink letter of 30 December 2005).

3.9On Mr Price's Application for Payment Form that he lodged on the 21 January 2005 and that covered the period 25 December 2004 to the 21 January 2004 (4 weeks), he provided the names of no Jobsearch contacts instead of the required 8 contacts.  (A5 to Centrelink letter of 30 December 2005)

3.10On Mr Price's Application for Payment Form that he lodged on the 18 February 2005 and that covered the period 22 January 2004 to the 18 February 2005 (4 weeks), he provided the names of no Jobsearch contacts instead of the required 8 contacts.  (A6 to Centrelink letter of 30 December 2005)

3.11On Mr Price's Application for Payment Form that he lodged on the 4 March 2005 and that covered the period 19 February 2005 to the 4 March 2005 (2 weeks), he provided the names of no Jobsearch contacts instead of the required 4 contacts.  (A7 to Centrelink letter of 30 December 2005)

3.12On Mr Price's Application for Payment Form that he lodged on the 18 March 2005 and that covered the period 5 March 2005 to the 18 March 2005 (2 weeks), he provided the names of 4 Jobsearch contacts as required of him.  (A8 to Centrelink letter of 30 December 2005)

3.13Also included in the Preparing for Work Agreement Mr John Price states (T9;P121) that,  "I understand that:  If I do not keep to the terms of this agreement including the Job Search Plan, my Allowance can be reduced or stopped altogether". Mr Price then goes on to state that, "I understand that I must still respond to Centrelink and Job Network Members requests".

3.14On the 13 September 2004 when Mr Price attended signed his Preparing for Work Agreement (T9; P120 - 128), and was presented with a log book (diary) and requested to complete the logbook and return it at each review (T9;P118) to be held on the 5 October 2004; 26 October 2004 and the 16 November 2004 (T9;P124 (J08)).

3.15On the 5 October 2004 Mr Price attended his review but failed to return his log book as request of him on the 13 September 2004. (T9;P118)  Mr Price provided a piece of paper with 3 jobs written on it that he had applied for. This is half the amount of Job contacts that he was required to provide under his Preparing for Work Agreement (T9;P123)(J02).  Mr Price was issued with another appointments book and log book with the requirement to record 4 jobs per week.  Mr Price was also requested to contact volunteering W.A. to investigate prospect of volunteer work.  Mr Price needs to get recent workforce experience and something for his resume.

3.16On the 26 October 2004 Mr Price attended his review but again failed to return his log book as request of him on the 13 September 2004. (T9;P118) and on the 5 October 2005 (T9;P118).  Mr Price provided a piece of paper with 4 jobs written on it that he had applied for. This is below the amount of Job contacts that he was required to provide (4 Jobs per fortnight) under his Preparing for Work Agreement (T9;P123)(J02) or the 4 jobs per week as requested at his review on the 5 October 2004 (T9;P118).  In respect to Volunteering work Mr Price advised that he had approached Volunteering W.A. and 2 companies he was referred to have not been available when he called or gone to their premise.  Mr Price was advised he could contact any registered charity or community based organisation for work.

3.17On 22 November 2004 Mr Price attended PVS Workfind and presented a piece of paper with 4 job efforts on it. The PVS Workfind officer explained Mr Price’s job search activity requirements to him. [T9:p118]

3.18On 14 December 2004 Mr Price attended PVS Workfind. It was explained to him that the 4 jobs he had written down for 3 weeks jobsearch was insufficient. [T9:p119] 

3.19On the 14 December 2004 PVS Workfind sent a facsimile to the Centrelink Office in Innaloo in which PVS Workfind stated, "John has shown no motivation to jobsearch or do voluntary work - does not attend three time weekly for jobsearch, has never applied for minimum amount of jobs (4 per week as per jsp) and has told me he is not interested in working.  He would rather pursue a film career." [T9:p117]

3.20Mr Price failed to comply with the term of his Preparing for Work Agreement (Job Search Plan) [T9:p123] during the period in question.

3.21On 18 December 2004 Mr price was sent a notice asking him to contact Centrelink about his failure to comply with his job search plan. [T10:p129]

3.22Centrelink discussed Mr Price’s options with him, including transfer Job Network Members by contacting DEWR, reconnecting with PVS Workfind by attending an appointment with them or undertaking voluntary work. [T12:p131]

3.23On 7 February 2005 a Centrelink officer determined that Mr Price had not attempted to reconnect with PVS Workfind nor given any information about voluntary work that he had undertaken. [T12:p132] 

3.24On the 7 February 2005 Centrelink wrote to Mr Price advising of the imposition  of a rate reduction penalty of 18% against his  payments for the period 21 February 2005 to the 21 August 2005 because he failed to comply with the terms of his Job Search Plan Agreement with his Job Network Provider. [T16:pp138-140]

3.25On 12 February 2005 Mr Price sought a review of the decision to impose an activity test breach rate reduction penalty. [T19:p143]

3.26On 13 June 2005 Mr Price sought an Authorised Review Officer review of the decision to impose an activity test breach rate reduction penalty. [T23:p149]

3.27On 6 September 2005 the Authorised Review Officer affirmed the decision to impose an activity test breach rate reduction of 18% for the period 21 February 2005 to 21 August 2005. [T38:pp170-181]

3.28On 17 October 2005 the SSAT affirmed the decision under review. [T1:p2-9]

3.        The issues are whether:

i)The applicant has failed to comply with any of the terms on his Newstart Activity Agreement;

ii)If so, has the applicant committed an Activity Test breach? And

iii)If so, should an Activity Test Rate Reduction Period be applied to the applicant’s Newstart Allowance.

4.       The respondent’s contentions read as follows:

4.1The relevant legislation in this matter is contained in the Social Security Act 1991 (the Act).

4.2The qualifications of Newstart Allowance are set out in section 593 of the Act.  One of the requirements is that a person satisfies the activity test or is exempted from the activity test.  In Mr Price’s case he is required to satisfy the activity test in order to receive Newstart Allowance.

4.3Sections 604 to 606 of the Act set out that a person can be required to enter into a Newstart Activity Agreement.  A Preparing for Work Agreement is considered to be a Newstart Activity Agreement for the purposes of the Act.  Mr Price entered into a Newstart Activity Agreement on 13 September 2004.

4.4Section 601(5) of the act 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).

4.5Section 626 of the Act states:

626.(1) Subject to subsection (2), if:

(a)a person is required to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and

(b)the person fails to take reasonable steps to comply with the terms of the Newstart Activity Agreement (the failure);

a newstart allowance is not payable to the person because of the failure.

4.6Given the above, Mr Price is required to take reasonable steps to comply with the terms of his Newstart Activity Agreement.  One of the terms of the agreement was ‘from 13.09.04 to 14.03.05 undertake 4 job search contacts per fortnight and record these job search contacts on my application for payment forms.  These job search contacts will include all types of suitable work …’.  

4.7Six of the eight applications for payment forms in the period from 13 September 2004 to 18 March 2005 did not have a record of Mr Price’s job search contacts. Details of contacts he provided to PVS Workfind did not substantiate that he had undertaken 4 job search contacts per fortnight. Consequently Mr Price has failed to comply with the terms of the agreement.

4.8Section 626 of the Act allows for the application of an activity test rate reduction period where a person has failed to take reasonable steps to comply with the terms of Newstart Activity Agreement. Section 644AA explains how the activity test rate reduction period is to be applied.  Section 644A(1) provides that the rate reduction period is for 26 weeks. Section 644AE provides that in instances where the breach is a person’s first breach in a two year period, the rate reduction is 18%.  In Mr Price’s case a rate reduction of 18% should be applied to his newstart allowance for a period of twenty six weeks due to the activity test breach.

5.        Mr Price claimed in evidence that he was only obliged to make two job applications per fortnight and not four as contended by the respondent.  He claimed that he had complied with this obligation and had made at least two applications per fortnight although he acknowledged that he did not have records to substantiate this claim.  He also said that he had destroyed some of the records that he had previously kept.

6.        It is clear that there was friction between Mr Price and the person at PVS Workfind which was the contractor engaged by the respondent to assist the applicant in obtaining employment.  PVS Workfind claimed and reported to the respondent that the applicant had failed to keep various appointments with them.  This was denied by the applicant in his evidence.

7.        Even if the Tribunal accepts that the applicant did in fact undertake two job search contacts per fortnight as he claims, it is clear that he did not take reasonable steps to comply with the terms of his Newstart Activity Agreement which required him to undertake four job search contacts per fortnight.  The applicant failed to provide any evidence that he had even undertaken two job search contacts per fortnight other than his unsupported evidence to the Tribunal as there is no documentary record of his claimed attempts.

8.        In the circumstances the Tribunal affirms the decision of the Social Security Appeals Tribunal.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:          .........[Ms R Riberi]..............................................
  Associate

Date of Hearing  19 April 2006
Date of Decision  14 June 2006

Representative for the
Applicant  Unrepresented

Representative for the

Respondent  Mr F Nipperus