RBJS and Secretary, Department of Jobs and Small Business (Social services second review)
[2018] AATA 1625
•1 June 2018
RBJS and Secretary, Department of Jobs and Small Business (Social services second review) [2018] AATA 1625 (1 June 2018)
Division:GENERAL DIVISION
File Number: 2017/1549
Re:RBJS
APPLICANT
AndSecretary, Department of Jobs and Small Business
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:1 June 2018
Place:Perth
The decision under review is affirmed.
....(Sgd)...........................................................
Member C Edwardes
CATCHWORDS
Social Security – Newstart allowance – non- compliance with Employment Pathway Plan –– failure to attend appointment with employment services provider – reconnection failure – medical conditions longstanding and temporary – cancellation of Newstart allowance – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 35(3)
Social Security Act 1991 (Cth) s593 - s603C
Social Security (Administration) Act 1999 (Cth) s42A – s42SA – ss42(G) – s80 – ss80(1) - s 179
CASES
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;
Mentink v Secretary, Department of Social Services [2016] FCAFC 39; 238 FCR
SECONDARY MATERIALS
Guide to Social Security Law, 1.1.M.160, 3.2.11.10, 3.1.13.30
REASONS FOR DECISION
Member C Edwardes
1 June 2018
THE APPLICATION
This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated on 14 February 2017. This decision affirmed a decision to cancel the Applicant’s Newstart Allowance (T2 15) (R1).
The Tribunal has the jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
On 25 August 2017 a confidentiality order was made under subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), giving the Applicant her pseudonym of RBJS and prohibiting the publication or other disclosure of Applicant’s name, address and other information tending to reveal the identity of the Applicant.
BACKGROUND
The Applicant was granted Newstart allowance with effect from 17 December 2007 (T19 131) (R1).
In 2015 the Applicant was referred to Great Southern Personnel (GSP), an employment services provider located in Albany. The Applicant regularly liaised with personnel at the GSP in order to satisfy the activity test under the Act.
On 27 October 2015 the Applicant’s general practitioner, Victor Seah, sent a letter to GSP stating that the Applicant was only medically consulted out of doors as she suffered from anaphylaxis to widespread antigens, including fragrances (ST5 153) (R1).
On or about 26 February 2016, the Applicant wrote a letter to the GSP stating:
I would prefer at the moment to do correspondence by email, I can’t always afford the net but I will try to have it for the next few months, or by letter, although our mail does not get delivered and I have to wait until my partner can pick it up for me. This is to avoid me having anxiety attacks…” (ST8 159) (R1).
On 31 March 2016, Ms McAleesse, a GSP employee, sent an email to the Applicant’s email address to set up the Applicant’s Job Plan and an Appointment Notification that indicated when the Applicant would next be emailed (ST10 161) (R1).
On 15 April 2016, the Applicant exchanged emails with Ms McAleese. The purpose of this correspondence was to set up the Applicant’s Job Plan and an Appointment Notification that indicated when the Applicant would next be emailed (R2 4).
The Appointment Notification letter sent to the Applicant on 15 April 2016 indicated that the Applicant was required to attend an appointment with GSP on Friday 29 April 2016, at 1:00 pm and asserted:
…You must attend the appointment outlined below in return for Newstart Allowance. If you do not attend this appointment and enter into or review your Job Plan as required, your payment may be stopped by Centre/ink. You may also lose back-pay if you don't have good reason for failing to attend. You are expected to participate fully in the appointment and behave appropriately. This is a notice under Social Security Law… (R2 4).
On 29 April 2016, Ms McAleese sent an email to the Applicant's email address to follow up with discussions in relation to the Applicant’s Job Plan and to provide the Applicant with an Appointment Notification that indicated when the Applicant would next be emailed (ST12 163) (R1).
The Appointment Notification letter sent to the Applicant dated 29 April 2016 indicated that the Applicant was required to attend an appointment with GSP on Friday, 13 May 2016, at 11:30 am. This letter asserted:
You must attend the appointment outlined below in return for Newstart Allowance. If you do not attend this appointment and enter into or review your Job Plan as required, your payment may be stopped by Centre/ink. You may also lose back-pay if you don't have good reason for failing to attend. You are expected to participate fully in the appointment and behave appropriately. This is a notice under Social Security Law (R2 4-5).
On 13 May 2016, the Department issued the Applicant with a notice, stated:
We are writing to you about your Newstart Allowance. Our records show that you missed an appointment with your employment services provider on 13 May 2016 and you did not contact them with a suitable reason why you did not attend. As a result, your Newstart Allowance has been stopped from 05 May 2016 ... If you have not already done so, you need to call your employment services provider as soon as possible on (08) 9842 1510 (call charges may apply) to:
Discuss the reasons you did not attend the appointment, and if required, attend a new appointment.
...If you do not call your provider and, if required, attend an appointment with them, your payment may be cancelled. If this happens, you will need to submit a new claim if you wish to receive a payment (T9 100) (R1).
On 17 May 2016, an online document recording was created on the Applicant's electronic Departmental file, which relevantly stated:
[A Department officer] contacted [the customer) to discuss current participation requirements. [The customer is] currently linked with GSP and has not been attending [appointments]. [The customer) advises medical conditional impact on her ability to participate. [The Department officer] discussed medical conditions in length and current treatment plan with gp (sic)…
[A Department officer] spoke to Sandra (sic) at gsp (sic) who has agreed to have consultant to contact [the customer at] 10am tomorrow. Further (sic) contacts will be via email at this stage. [The customer] is to sign job plan and return] the 4 job search is not for [the customer] to apply for work but to identify suitable work options for future. this will be in place until such time as new esat (sic) completed (T20 135) (R1).
On 18 May 2016, Ms McAleese sent an email to the Applicant's email address (ST13 164) (R1), which relevantly stated:
It was nice to talk to you this morning...
Please find attached a copy of your Job Plan with changes made to reflect our conversation this morning. I have put a copy of your Job Plan in the mail with a stamped return envelope. It would be appreciated if you can sign the Job Plan and return it to or office within 5 days of receiving the hard copy.
Notes from this mornings (sic) conversation:
We have agreed to have email contact fortnightly, commencing Thursday, June 2 at 1pm. As requested, appointments will fall on your pension week.
(Emphasis added.)
The Job Plan that was sent to the Applicant, dated 18 May 2016 relevantly stated:
I understand that if I don't comply with my mutual obligation requirements as set out in the items marked as compulsory below, my income support payments may be stopped or reduced ...
I agree to attend fortnightly Disability Employment Services appointments with Great Southern Personnel (R2 6).
On 2 June 2016, a Provider Comment Details record was created on the Applicant's electronic Departmental file, which relevantly stated:
[The job seeker] has not returned the signed Job Plan. She has had a hard copy of the mutually agreed updated Job Plan for 9 full working days and was requested to return it signed to Great Southern Personnel (T18 128) (R1).
On 2 June 2016, Ms McAleese sent an email to the Applicant's email address, which relevantly stated:
It was mutually agreed you would sign the updated Job Plan, we verbally agreed upon, and return it to Great Southern Personnel within 5 working days of receiving it. It was agreed you would email me if you wanted changes made, to date, I have not received an email requesting changes and the signed Job Plan has not been received by Great Southern Personnel. A hard copy of the Job Plan, with stamped return addressed envelope, was mailed to your address on 19/5/2016 and collected from the […] Postal Agency on Friday 20 May 2016 at 11:06am. Collection of the letter is confirmed with Australia Post tracking ...
Can you please email me details of 2 job searches you have undertaken in the past two weeks. Can you please include the date you searched; whether suitable work was found; and where you searches for jobs...
As mutually agreed and to meet compliance requirements, I require an email response from you by 4pm this afternoon to this email (ST15 166) (R1).
On 2 June 2016, a Non-Attendance Report was created on the Applicant's electronic Departmental file, which indicated that the Applicant failed to attend the appointment with GSP on 2 June 2016, and a Provider Comment Details record was created on the Applicant's electronic Departmental, which relevantly stated:
DNA/ [did not attend – – invalid reason]: Email appointment: Email sent to RBJS at 1.26pm today and no response at 4.50pm (T18 129) (R1).
On 2 June 2016, an online document recording was created on the Applicant's electronic Departmental file, which relevantly stated:
Newstart Allowance suspended from 02 JUN 2016 for not attending a provider appointment.
If they have not already done so, the job seeker must contact Great Southern Personnel on 0898421510 to re-engage. Payment will auto restore after the job seeker has attended the appointment (where the provider asked them to do so).
The decision has been made under section 80 of the SS(A)A (T20 136) (R1).
The Department issued the Applicant with a notice dated 2 June 2016, which relevantly stated:
We are writing to you about your Newstart Allowance. Our records show that you missed an appointment with your employment services provider on 02 June 2016 and you did not contact them with a suitable reason why you did not attend. As a result, your Newstart Allowance has been stopped from 02 June 2016 ...
If you have not already done so, you need to call your employment services provider as soon as possible on (08) 9842 1510 (call charges may apply) to:
discuss the reasons you did not attend the appointment, and if required, attend a new appointment.
.. .If you do not call your provider and, if required, attend an appointment with them, your payment may be cancelled. If this happens, you will need to submit a new claim if you wish to receive a payment (T11 104) (R1).
On 1 July 2016 the Department cancelled the Applicant’s Newstart Allowance, on the basis that she was not satisfying the activity test. The cancellation of the Applicant’s Newstart Allowance was effective as at 2 June 2016 (T10 102-103) (R1).
ISSUES FOR DETERMINATION
The relevant issues for the Tribunal to determine are:
(a)was the Applicant exempt from satisfying the Newstart activity test on the basis of Dr Victor Seah’s medical certificate dated 23 August 2016;
(b)if so, did the Applicant fail to attend an appointment on 2 June 2016 that she was required to attend in line with the Newstart Employment Pathway Plan that was in force at the time;
(c)if so, did the Applicant fail to comply with a reconnection requirement imposed on the Applicant because of the failure referred to in paragraph (b) above; and
(d)if so, should the Applicant’s Newstart allowance be cancelled from 2 June 2016.
RELEVANT LEGISLATION
The relevant provisions governing qualification for Newstart allowance are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.
The relevant policy is contained in the Guide to Social Security Law (the Guide) which ought to be applied unless there are cogent reasons for departing from it (Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634).
Was the Applicant exempt from satisfying the Newstart activity test during the relevant period on the basis on information in the medical certificate dated 23 August 2016 from Dr Seah?
Section 593 of the Act specifies the requirements that must be satisfied to qualify for Newstart allowance.
Qualification for newstart allowance
1Subject 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;
…
(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…
Subsection 603C(1)(a) of the Act provides that a person is not required to satisfy the activity test in respect of a period if throughout such period the person is temporarily incapacitated for work due to sickness or an accident. Subsection 603C(1)(e) of the Act provides that a person is required to provide an approved medical certificate. Criteria in subsection 603C(1) of the Act is set out below:
Incapacitated person not required to satisfy activity test
1Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:
(a)throughout the period the person is incapacitated for work because of sickness or an accident; and
(b)the incapacity is causey67d wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and
(c)the incapacity is, or is likely to be, of a temporary nature; and
(d)if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for Newstart allowance; and
(e)the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:
(i) the medical practitioner's diagnosis; and
(ii) the medical practitioner's prognosis; and
(iii) that the person is incapacitated for work; and
(f)the Secretary is satisfied that the incapacity has not been brought about with the view to obtaining an exemption from the activity test.
The Guide at Instructions 1.1.M.160, states:
Mutual obligation requirements refer to the general principle that it is fair and reasonable to expect unemployed people receiving activity tested income support to do their best to find work, undertake activities that will improve their skills and increase their employment prospects and, in some circumstances, contribute something to their community in return for receiving income support.
Mutual obligation requirements are referred to as activity test and participation requirements under social security law
The Guide at Instruments 3.2.11.10 states:
Social security law provides for a temporary incapacity exemption from the mutual obligation requirements for any job seeker who has an inability to work for 8 hours or more per week due to a medical condition, which is supported by medical evidence and who is also unable to undertake another appropriate activity for 8 hours or more a week.
The Tribunal notes that paragraph 603C(1A) of the Act stipulates “the Secretary must comply with guidelines (if any) determined and in force under (1B)…” The Tribunal will not consider guidelines pursuant to subsection 603C(1A) of the Act as the Tribunal notes that there are no applicable guidelines that were or are in force.
Did the Applicant fail to attend an appointment on 2 June 2016 that she was required to attend pursuant to an employment pathway plan (EPP) that was in force
Paragraph 593(1)(e) of the Act provides that if a person is required by the Secretary to enter into a Newstart Employment Pathway Plan, the person is to enter into that plan. Paragraph 593(1)(f) of the Act provides, to be qualified for Newstart allowance, a person must comply with the requirements of a Newstart Employment Pathway Plan that is in force in relation to that person.
Did the Applicant fail to comply with a reconnection requirement imposed because of her failure to attend the appointment on 2 June 2016.
Instruction 3.1.13.30 of the Guide provides:
Where a job seeker fails to attend an appointment with their provider (regardless of whether or not they had a reasonable excuse), and their provider decides to report that to DHS, their provider will book a rescheduled appointment, which will be a reconnection requirement. If the job seeker incurs a connection failure for failing to attend a participation-related appointment with DHS, failing to enter into a Job Plan or failing to comply with the job search requirements in their Job Plan without a reasonable excuse, DHS will generally issue the job seeker with a reconnection requirement. DHS will generally also book the reconnection appointment where the provider submits a report due to non-attendance at a specialist or third party provider appointment, regardless of whether a connection failure is applied.
The reconnection requirement will depend on the circumstances but will be:
· attendance at a further appointment, for job seekers who have missed an appointment,
· to complete a job seeker diary for job seekers who have not met their job search requirements, or
· attendance at a further appointment to enter into a Job Plan, for job seekers who have failed to enter into a Job Plan.
When the reconnection requirement is to attend a further appointment, it can be on the same day as the contact is made with the job seeker to discuss the failure to attend the initial appointment, if this is reasonable and will present no difficulties for the job seeker. Additionally, a reconnection appointment can be undertaken over the phone where this is the most suitable method of reengaging the job seeker and suits the sorts of services to be delivered during the appointment. If an appointment cannot be arranged to occur within 2 business days of contact with the job seeker, the job seeker's payment, if suspended, must be restored with back pay and any non-attendance failure period must be ended.
A reconnection failure occurs if the job seeker fails to meet their reconnection requirement without a reasonable excuse. They then immediately enter a reconnection failure period and need to meet a further reconnection requirement.
If the job seeker has a reasonable excuse for failing to meet their reconnection requirement, they do not incur a reconnection failure but they will usually be given another reconnection requirement.
If a job seeker has incurred a connection failure for refusing to enter into a Job Plan and has been given a reconnection requirement to attend a further appointment to enter into a Job Plan, they may incur a reconnection failure for not attending the appointment…
Section 42G of the Administration Act provides:
Reconnection requirements
If:
(a)the Secretary determines that a person commits a connection failure; or
(b)a person fails to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person; or
(c)a person fails to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person …
then:
(d)if, in relation to a failure referred to in paragraph (b), (c) or (ca), the Secretary determines, under subsection 42SA(1), that a participation payment is not payable to the person--the Secretary must require the person to comply with a requirement (the reconnection requirement ); or
(e)in any other case--the Secretary may require the person to comply with a requirement (the reconnection requirement ).
Note: The Secretary must notify the person of the effect of not complying with the reconnection requirement (see section 42K).
Should the Applicant’s Newstart allowance ought to be cancelled from 2 June 2016
Paragraph 42SA(1)(b) of the Administration Act provides that the Secretary may determine that a participation payment is not payable to a person if the person fails to attend an appointment that the person is required to attend by an employment pathway plan in force in relation to the person.
Qualification requirements for the Newstart allowance are set out in section 593 of the Act and mentioned in earlier paragraphs in this decision.
Subsection 80(1) of the Administration Act provides:
Cancellation or suspension determination
1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended…
The question of whether a payment should be cancelled rather than merely suspended under section 80 of the Administration Act was considered in Mentink v Secretary, Department of Social Services [2016] FCAFC 39; 238 FCR, in which the Court stated at [49] that the intention of section 80 ‘was that a payment would be cancelled where the person was not qualified for the payment, and suspended where the person was qualified but the payment was nonetheless not payable in the circumstances.’
EVIDENCE
The Tribunal received the following evidence:
·A1 – Applicant’s submission with annexures received by Tribunal 21 August 2017;
·R1 – T Documents (T1-T20; pages 1-147) received by Tribunal 8 May 2017 and Supplementary T Documents (ST1-ST18, pages 148-169) received by Tribunal 8 May 2017).
·R2 – Respondent’s Statement of Facts, Issues and Contentions (SOFIC) received by Tribunal 22 September 2017.
·R3 – Respondent’s List of Authorities located on page 18 of SOFIC.
·R4 – Annexure A to SOFICs – email from Employment Co-ordinator Applicant 15 April 2016.
·R5 – Annexure B to SOFICs – Letter to Applicant from Great Southern Personnel.
·R6 – Annexure C to SOFICs – Letter to Applicant from Great Southern Personnel dated 13 May 2016)
·R7 – Annexure D to SOFICs – Applicant’s Job Plan.
Oral submissions
This matter was heard in Perth on 12 March 2018. The Applicant appeared in person by phone and the Respondent was represented by Ms Claire Campbell by phone from Sparke Helmore Lawyers.
Under cross examination, the Respondent referred the Applicant to Dr Seah’s medical certificate (T5, 74 – 90) (R1). The Applicant agreed:
·She had suffered from migraines from an early age.
·That her symptoms on 23 August 2016 included “tingling in the mouth with exposure to some perfumes…”
·The severe limitation on her ability to function in the public domain had persisted for more than 24 months.
·Within the next 2 years the effect of her severe limitation on her ability to function in the public domain was expected to remain unchanged.
·Her principle complaint, as outlined in her AAT1 decision was that she suffered from 20 migraines every month. “She also said that she suffers from depression and anxiety. She said that she had been attending at the premises of her DES Provider [DSP], but prefers to go into the rooms, because of her anxiety about anaphylaxis…”
·The conditions outlined by Dr Seah in the medical certificate dated 23 August 2016 were longstanding.
·That she had received a letter written to her from Centrelink on 2 June 2016 that her Newstart allowance had been stopped.
At the hearing:
·The Applicant stated that she had attended previous appointments with the GSP and that this had not been recorded.
·The Applicant referred to the fact that Dr Seah’s medical certificate dated 23 August 2016 referred to her condition over the previous 4 months. The Applicant claimed that she was very ill when she had to attend her doctor’s appointment dated on 2 June 2016. The Applicant stated that she had no money for internet, and that she did not agree with certain aspects of her employment pathway plan.
The Applicant’s partner, additionally provided evidence at the hearing. The Applicant’s partner stated that he had driven the Applicant to many Centrelink appointments, and that not all appointments attended by the Applicant were registered in Departmental records.
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
CONSIDERATION
Was the Applicant exempt from satisfying the Newstart activity test during the relevant period on the basis of information in the medical certificate dated 23 August 2016 from Dr Seah?
On 23 August 2016, the Applicant provided a medical certificate from her general practitioner. This medical certificate stated that the Applicant suffered from anaphylaxis to widespread antigens including fragrances, migraine and anxiety/depression. Dr. Seah stated that, as of Monday 30 November 2015 to Friday 26 February 2016 inclusive, the Applicant was “unfit to work in the public domain … generally [unable] to enter a public building where exposure to fragrances [wa]s likely or could occur in an anticipated fashion... On a few days a week … incapacitated with severe headaches…” (T8 99).
The Tribunal considers the Applicant’s contentions in her application for review, namely, that she was “very ill from…conditions [anxiety depression anaphylaxis] and an exacerbation of … attacks…”
The Tribunal notes and agrees with the Respondent’s contentions, namely, that the Applicant’s condition of anxiety and depressive disorder was an exacerbation of an existing condition that had been in existence since the 1990s (R2 12). Dr. Seah states that the Applicant’s conditions, being, anaphylaxis to widespread antigens including fragrances, migraines and anxiety/depression were all permanent conditions (ST7 158) (R1), thus, could not be considered temporary for the purposes of paragraph 603C(1)(c) of the Act. (Emphasis added.)
The Tribunal agrees with the Respondent’s contentions in that the medical certificate dated 23 August 2016 does not properly address the Applicant’s medical conditions and capacity for work when the Applicant’s Newstart allowance was cancelled. The Tribunal finds that the relevant medical certificate states that the Applicant was incapacitated from 23 August 2016 to 22 October 2016, and that the Applicant’s total incapacitation had been ongoing “since 2014 and prior.” The Applicant’s newstart allowance was cancelled on 1 July 2016, with effect from 2 June 2016. These time periods do not coincide with each other.
The Tribunal finds that the Applicant was not exempt from satisfying the newstart activity test during the relevant period based on information in the medical certificate dated 23 August 2016.
Did the Applicant fail to attend an appointment on 2 June 2016 that she was required to attend pursuant to an EPP that was in force?
The Tribunal agrees with the Respondent’s contention that the Applicant verbally agreed upon the terms of a Job Plan with GSP on 18 May 2016, and that this Job Plan was also sent to the Applicant in writing (ST13 164) (R1). The Tribunal agrees, pursuant to subsection 593(1)(f) of the Act, that the Applicant was required to comply with the terms of the Job Plan and that terms of the Job plan included “to have email contact fortnightly, commencing Thursday, June 2.” (ST13 164) (R1)
The Tribunal notes the terms of the Job Plan that was sent to the Applicant, dated 18 May 2016 (1) (R7). These terms asserted that the Applicant was to “…understand if I don’t comply with my mutual obligation requirements as set out in the items marked… my income support payments may be stopped or reduced… [furthermore] I agree to attend fortnightly Disability Employment Services appointments with Great Southern Personnel…”
The Tribunal notes the Non-Attendance Report that was created on the Applicant’s electronic Departmental file which indicated that the Applicant failed to attend the appointment with GSP on 2 June 2016. (T12 106) (R1)
The Tribunal considers the Applicant’s contentions at the hearing, particularly in relation to Dr Seah’s medical certificate dated 23 August 2016, and that this medical certificate referred to her condition over the previous 4 months from 23 August 2016.
The Tribunal considers the Applicant’s contentions during the hearing that she was very ill when she had to attend her doctor’s appointment on 2 June 2016. The Tribunal considers the Applicant’s statement during the hearing that she had no money for internet, and that she did not agree with certain aspects of her employment pathway plan.
The Tribunal however finds that there was an EPP in force, the Applicant was required to attend the appointment on 2 June 2016, and the Applicant failed to attend the appointment on 2 June 2016.
Did the Applicant fail to comply with a reconnection requirement imposed because of her failure to attend the appointment on 2 June 2016
The Tribunal finds, as established above, the Applicant failed to attend an appointment on 2 June 2016 that she was required to attend pursuant to a Job Plan that was in force. The Tribunal notes, when applying section 42A of the Administration Act, the Secretary is required to impose a reconnection requirement under section 42G of the Administration Act.
The Tribunal notes, on 2 June 2016, the Department issued a notice to the Applicant regarding the non-attendance (T11 104-105) (R1). The Tribunal agrees with the Respondent’s contentions that this notice in effect was a notice of immediate non-payment determination under subsection 42A(1). The Tribunal notes that the notice dated 2 June 2016 also required the Applicant to contact her employment services provider to discuss the reasons for not attending and attend a new appointment if required. The notice stated: “If you do not call your provider and, if required, attend an appointment with them, your payment may be cancelled.” This provided notification of the effect of not complying with the reconnection requirement as required by section 42K of the Administration Act.
The Tribunal notes the Applicant’s contentions that she was not medically fit enough to reconnect with her provider after 2 June 2016. The Applicant additional states that she was not sure if she had received the letter from Centrelink dated 1 July 2016 stating:
You were recently advised that you needed to contact your employment services provider to discuss an appointment you missed. Our records show you did not contact them to make a new appointment or discuss the reason you did not attend. As a result, your Newstart Allowance has been cancelled from 2 June 2016…. This letter is a notice of decision made under social security law. Information about what to do if you think this decision is wrong is on the back of the letter… if you need to continue to receive an income support payment, you will need to make a claim for this payment… (T10 102) (R1).
The Tribunal finds, despite the Applicant’s contentions in paragraphs 54 and 55 of this decision, the Applicant was given the opportunity to reengage with the GSP. Whilst the Applicant contends that her medical conditions precluded her from reengaging with the DSP, evidence before the Tribunal shows this is not the case. The Tribunal therefore finds that the Applicant failed to comply with the reconnection requirement imposed because of her failure to attend the appointment on 2 June 2016.
Should the Applicant’s newstart allowance be cancelled from 2 June 2016.
The Tribunal finds that the Applicant was afforded every opportunity to attend an appointment with GSP but failed to do so.
The Tribunal finds that the Applicant was well aware of her obligations to meeting the requirements pertaining to the activity test, and the reconnection requirements, but decided not to satisfy such obligations. The Tribunal notes, as observed by the Applicant’s testimony during cross examination that the Applicant has been on the Newstart allowance since 17 December 2007 and is well aware of compliance requirements of this allowance.
As established in the above paragraphs of the decision, the Tribunal finds that the Applicant failed to qualify for Newstart allowance as she did not satisfy the activity test. The Tribunal notes that paragraph 80(1)(a) of the Administration Act states:
If the Secretary is satisfied that a social security payment is being, or has been, paid to a person: who is not, or was not qualified for the payment; the Secretary is to determine that the payment is to be cancelled or suspended.
The Tribunal notes paragraph 49 of Mentink v Secretary, Department of Social Services [2016] FCAFC 39 stating that the question of whether a payment should be cancelled rather than merely suspended under section 80 of the Administration Act:
…was that a payment would be cancelled where the person was not qualified for the payment, and suspected where the person was qualified but the payment was nonetheless not payable in the circumstances.
The Tribunal further considers commentary in the Guide. Namely, instruction 3.1.13.30 provides that continued failure to comply with a reconnection requirement may result in a loss of qualification of payment. The Tribunal notes, where the person has been required to reconnect but still has not reconnected four weeks after first being required to do so, their payment may be cancelled (T4 56) (R1). The Tribunal notes that that the Applicant failed to contact the GSP four weeks after she missed her appointment on 2 June 2016 (T10 102) (R1). The Tribunal therefore agrees that the decision to cancel the Applicant’s Newstart allowance was correct.
DECISION
The decision under review is affirmed.
I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
.......(Sgd).................................................
Associate
Dated: 1 June 2018
Date of hearing: 12 March 2018 Applicant: In person Solicitors for the Respondent: Claire Campbell, Sparke Helmore Lawyers
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