RICHARD MAKSYMIUK and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS

[2009] AATA 175

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 175

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No  2008/1398 &

GENERAL ADMINISTRATIVE DIVISION		)                2008/3692
Re		RICHARD MAKSYMIUK

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date17 March 2009

PlaceBrisbane

Decision In Matter No 2008/1398 the Tribunal sets aside the decision under review and substitutes the decision that Mr Maksymiuk’s newstart allowance should not have been cancelled on 20 February 2007.  Newstart allowance was payable to Mr Maksymiuk from 16 November 2007, being the date that he sought review of the cancellation decision.
In Matter No 2008/3692 the Tribunal affirms the decisions under review.

......................[sgd]......................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – newstart allowance – cancellation of newstart allowance – whether written notices effective – whether oral notification of requirement given – date of effect of decision where applicant delayed seeking review – cancellation decision set aside

SOCIAL SECURITY – newstart allowance – whether applicant was entitled to payment of arrears on new claim – decision affirmed 

SOCIAL SECURITY – newstart allowance – cancellation – refusal to enter into Activity Agreement – whether applicant qualified to receive payment – decision affirmed

Social Security Act 1991 (Cth) s 23(12).

Social Security (Administration) Act 1999 (Cth) ss 63, 64, 68 (2), 80(4)(iv), 81(1)(a), 85, 95(1), 109, 108, 179(4), 196, 196(5).

Administrative Appeals Tribunal Act 1975 (Cth) s 37.

REASONS FOR DECISION

17 March 2009 M J Carstairs, Senior Member      

1.      In these two applications Richard Maksymiuk seeks review of three decisions:

§  the first was a decision made in February 2007, cancelling his newstart allowance (the 2007 cancellation decision), and is the subject matter of application 2008/1398;

§  the other two were:

i.a decision made later in 2007, when Mr Maksymiuk re-applied to be paid newstart allowance after a gap of some 9 months, that decision being to pay him from the day he lodged his claim form, rather than an earlier date, namely when he first contacted Centrelink; and

ii.a decision made in February 2008, once again cancelling his payment (the 2008 cancellation decision) when Mr Maksymiuk refused to enter into a new “Activity Agreement”.

These latter two decisions form the subject matter of application No 2008/3692, having been reviewed together by the Social Security Appeals Tribunal.

2.      I have come to the decision that the first decision was wrong, and ought to be set aside.  However, the two other decisions were in accordance with the legislation, and ought to be affirmed. 

3.      Before explaining the reasons for my decisions, it is necessary to provide some background to the hearing of the matter in the Tribunal.

THE HEARING OF MR MAKSYMIUK’S APPLICATION

4.      Mr Maksymiuk’s matters have proceeded on three listed hearing days: 21 November 2008; 10 February 2009; and 12 March 2009.  Mr Maksymiuk’s matters were listed earlier in a Townsville circuit in July 2008, but that listing was vacated at Mr Maksymiuk’s request, in order to give him time to obtain documents under Freedom of Information (FOI) legislation.  It was appropriate to allow him that opportunity, in view of the fact that his matters were recent applications to the Tribunal. 

5.      The applications were then listed for the Tribunal’s November circuit to Townsville.  In the course of that hearing, Mr Maksymiuk indicated that he had been disadvantaged in preparing his case, because he had sought, but still had not obtained, his Centrelink file under FOI.  I decided that the hearing ought to proceed, despite Mr Maksymiuk not having the requested documents.

6. There were several reasons for doing so. One was that Mr Maksymiuk had never identified what he believes is “missing” from the already copious documentation filed by the respondent (in compliance with their obligations under s 37 of the Administrative Appeals Tribunal Act 1975).  Also, the reason Mr Maksymiuk did not have the FOI documents was that he took no reasonable steps to ensure that he received his mail at the hostel where he lives, even though he is well aware of the mail problems there.  I am confident that Centrelink sent the FOI documents to him in about September 2008. Mr Maksymiuk said he did not receive the documents.  But he claims that is so for most documents sent to him (whether by Centrelink, the Social Security Appeals Tribunal[1], or by this Tribunal).  He ought to make better arrangements to ensure he receives his mail. 

[1]        Folio 11; T2 (No 2008/3692).

7.      Having commenced taking the evidence in Townsville, it nevertheless was appropriate to allow Mr Maksymiuk the opportunity to have access to the FOI documents, and allow the parties time to make submissions on any relevant matters they might wish to raise in relation to the additional materials.  Centrelink undertook to once again provide him with the FOI documents.    

8.      At the resumed hearing (by telephone) on 10 February 2009, Mr Maksymiuk said he still had not received the documents, despite Centrelink this time having forwarded them by registered post. 

9.      Centrelink also had not provided me with the Customer Record Access Monitor Report (CRAM Report) for the dates 30 January 2007 to 5 February 2007, which I had requested at the hearing in November 2007, and expected would be provided to me before the resumed hearing.  So there were now two good reasons not to proceed on that day.  However, to ensure that when we did resume Mr Maksymiuk would have the FOI documents, I made directions that Mr Maksymiuk would go to Centrelink, and personally collect and sign for the FOI documents. 

10.     Both parties agreed that the telephone hearing would resume on 12 March 2009, under the same arrangements, namely, that Mr Maksymiuk would go to the local Centrelink office, where a telephone and private room would be made available to him. 

11.     When the hearing next resumed on 12 March 2009, Mr Maksymiuk was not in attendance.  The office manager confirmed that Mr Maksymiuk was not in the office that day, as had been arranged.  I was satisfied that Mr Maksymiuk had been notified of the time and place of the hearing, not only when he was consulted and agreed to that date at the previous hearing, but details were also confirmed by email, and by registered post letter.  In those circumstances, I proceeded to finalise the hearing in his absence.  In doing so, I was aware that since the previous hearing on 10 February 2009, Mr Maksymiuk had lodged an application for review of the FOI decision.  But I do not see this as a reason to delay the applications that are before me. 

12.     I turn now to those applications and the respective decisions under review.

MATTER 2008/1398:  THE 2007 NEWSTART CANCELLATION DECISION

13.     The issue in this application is whether Centrelink’s 2007 cancellation decision was the correct or preferable decision, taking into account all relevant circumstances. The respondent submits that it was, but the step to cancel someone’s social security payment is one that has serious ramifications for a person, leaving them without income support.  It is a decision that ought to be taken only on the strongest of grounds.  The respondent’s grounds, I note from submissions, present as something of a moveable feast. This squarely raises the question, in my view, of whether the necessary grounds for cancellation were present at the time the decision was made.

14.     Before looking at the 2007 cancellation in any detail, it is helpful to canvass briefly Mr Maksymiuk’s circumstances as they relate to his receipt of newstart allowance. 

15.     Mr Maksymiuk is a long-term newstart recipient.  He is undertaking part-time PhD studies in mathematics at James Cook University.  Mr Maksymiuk is in his fifties and seems to have some difficulty finding employment.  There are references at various places in the documents to there being medical issues that might stand in the way of his gaining employment. These were not set out in any detail, but I do note that, (at least until late in 2006), Centrelink took into account matters such as Mr Maksymiuk’s age, lack of recent workplace experience, and the medical issues, in allowing him to lodge his newstart claim forms on a 12-weekly basis[2], rather than on the usual fortnightly basis.  Also, Mr Maksymiuk had not been asked to update his Activity Agreement with Centrelink from 2004.

[2]        Folios 42 – 44; T8.

16.     An Activity Agreement is a formal agreement made between a newstart recipient and Centrelink, outlining the obligations that must be satisfied to continue payments.  Centrelink uses Activity Agreements to monitor a person’s job seeking efforts.  Normally the terms of an Agreement will include the person’s obligations while in receipt of the allowance, such as the minimum number of job contacts required per fortnight, and any necessary diary-keeping with reference to employment efforts.

17.     The degree of leniency Centrelink was affording to Mr Maksymiuk came to an abrupt end in 2006 when someone decided that Mr Maksymiuk should be putting in greater work efforts, and that he be placed back on a fortnightly lodgement cycle.  It appears, however, that no-one told Mr Maksymiuk about this.  His newstart allowance was simply cancelled after he failed to lodge a form one fortnight.  The 2006 cancellation decision predates the 2007 cancellation, but the two, in my view, are not unrelated.  For one thing, the review of the 2006 cancellation and the imposition of the 2007 cancellation happen within a very short space of time.  Indeed, the 2007 cancellation flew in the face of recommendations of the authorised review officer, Mr Laurie Brown, who had reviewed and set aside the 2006 cancellation decision.   

18.     Mr Brown’s decision to overturn the 2006 cancellation decision, took into account salient matters with respect to Mr Maksymiuk's case, including that:

§  in 2004 a Centrelink social worker had assessed Mr Maksymiuk as having a mental health issue into which he lacked insight.  Apparently, at the time disability support pension was considered his more appropriate payment, but Mr Maksymiuk was unwilling to claim a disability pension.  So it was recommended that his Centrelink record be flagged so that his job-seeking efforts would be reduced to ensure that he had “less conflict with respect to his Centrelink responsibilities”[3];

§  at the time of the 2006 cancellation, Mr Maksymiuk had been making 12-weekly lodgements for over two years, and it had not been explained to him that he was expected now to lodge fortnightly.  Mr Brown was unable to locate any written notification about the change.

[3]        Folio 123; T 22.

19.     Accordingly, on 23 January 2007, Mr Brown set aside the 2006 cancellation decision and restored Mr Maksymiuk’s payment. The arrears amounted to $2,740.26[4].   Mr Brown’s decision statement reads as follows:

I have decided that:

·Your payment will be restored and you should be paid arrears of Newstart Allowance from 17 October 2006.

·Under section 600 of the Social Security Act 1991 you should be eligible to lodge your Application for Payment Forms every 12 weeks as long as you are satisfying the requirements of Newstart Allowance and you comply with the Notification and Recipient Obligations for Newstart allowance [5].

[4]        Folios 58 – 60; T13.

[5]        Folio 57; T12.

20.     I would pause here to observe that perhaps Mr Brown went beyond the scope of reviewing the 2006 cancellation decision by making recommendations with respect to future payments.  But Mr Maksymiuk reasonably could take it, in accordance with the plain words of Mr Brown’s decision, that he had been returned to 12-weekly reporting.

21.     It seems that others in Centrelink disagreed with Mr Brown’s conclusions.  Computer records reveal ensuing discussions within Centrelink to the effect that Mr Maksymiuk was to have more frequent intervention than 12-weekly; consistent with new initiatives for newstart recipients. Mr Maksymiuk was to be placed in the “contact model” and he would be required to come into Centrelink for a “participation discussion” each fortnight[6].    

[6]        Folios 101 – 123; T22.

22. To that end, it was necessary that he sign a new Activity Agreement. There was a draft of such an Agreement (at T14) in the documents filed under s 37 of the Administrative Appeals Tribunal Act1975 [7].  One proposed undertaking described in the document was that Mr Maksymiuk would set out his job-seeking activities in a “Participation Record” which he would bring to Centrelink fortnightly, on dates to be advised.  The cover page referred to this is as being an Agreement developed between Mr Maksymiuk and Centrelink on 30 January 2007[8].  This was supported by a computer record stating “customer negotiated a new Activity Agreement with IYC on 30 January 2007” (IYC being the acronym for the Centrelink officer involved)[9]. 

[7]        Folio 61- 64; T14.

[8]        Folio 61; T14.

[9]        Folio 134; T23.

23.     However, the document at T14 is unsigned and undated.  Mr Maksymiuk maintains that he never went to Centrelink on 30 January 2007, let alone signed the Agreement.  Centrelink officer IYC was not called to give evidence to say otherwise. 

24.     Taking into account Mr Maksymiuk’s subsequent refusal to sign Agreements with Centrelink, I think it is unlikely that he would have signed this Agreement on 30 January 2007.  It is important to bear in mind that Mr Brown, only days prior to this, had confirmed that Mr Maksymiuk would return to 12-weekly lodgement.  Mr McQuinlan, who appeared for the respondent, quite properly conceded that it was unlikely Mr Maksymiuk would have signed an Agreement in this form, which would require him to submit again to fortnightly attendances at Centrelink.  

25.     What happened next was that Centrelink sent Mr Maksymiuk five letters dated 30 January 2007: one was about the arrears payment following from Mr Maksymiuk’s successful appeal of the 2006 cancellation decision;[10] one was a notice under s196 of the Social Security (Administration) Act 1999 (the Administration Act) telling him that he had to come to Centrelink on 5 February 2007; one was a covering letter;[11] one was described as a “Reporting Statement” and set out a number of proposed dates for “participation interviews,” that letter noting that this was “an information notice given under social security law”;[12] and the final one was an “Account Statement”[13].

[10]        Folios 58 – 60; T13.

[11]        Folios 66 – 67; T16.

[12]        Folios 67 – 68; T16.

[13]        Folios 68 -69; T16.

26.     Only two of these letters could have any significance for Mr Maksymiuk’s ongoing obligations to Centrelink.  That is, only the letters that required Mr Maksymiuk to “do something”. These, therefore, were the only written communications that might have any relevance, in terms of the 2007 cancellation decision that was shortly to follow.  Those letters are:

§ the notice under s 196 of the Administration Act requiring Mr Maksymiuk to attend Centrelink on 5 February 2007.

(The respondent now acknowledges that this notice was invalid, as it did not give Mr Maksymiuk the required 14 days notice[14].)

§  the letter (the “information notice”) requiring Mr Maksymiuk to attend “participation interviews” on nominated dates, one date being 19 February 2007. Mr Maksymiuk does not claim he attended Centrelink on 19 February.

[14]        Social Security (Administration) Act 1999; s 196(5).

27.     Mr Maksymiuk says he did not receive any of these letters. Whatever the true position, the legislation clearly provides that when letters of this kind are forwarded to a person’s correct postal address, under the legislation, they are deemed to have been received: s 23(12) of the Social Security Act 1991 (Social Security Act).These letters were correctly addressed to the place where Mr Maksymiuk lived.  That point is sufficiently and correctly dealt with in the Social Security Appeals Tribunal decision at paragraph 19[15].

[15]        Folio 13; T2.

28. Without convincing evidence that Mr Maksymiuk had signed the proposed Activity Agreement, and taking account that the purported s 196 notice to attend Centrelink on 5 February 2007 was invalid, what was left as a basis for the 2007 cancellation decision? It would seem that only basis was the letter (“information notice”) requiring him to attend “participation interviews”; more specifically the one set down for 19 February 2007, which he did not attend.

29.     Mr Maksymiuk was told of the 2007 cancellation decision in a letter dated 20 February 2007:

Your newstart allowance has been cancelled from 23 January 2007 because we have not received your application for payment form.

30.     It is curious that in the course of review, the step to cancel has been described as being taken on several different grounds:

§  failing to report to Centrelink on 6 February 2007 – this was the ground referred to in the internal review of the original decision;[16]

§  not lodging a form on 5 February 2007 – this was the ground relied upon by the authorised review officer;[17] and

§  Mr Maksymiuk’s failure to attend the interview on 19 February 2007 – this was the ground relied upon by the Social Security Appeals Tribunal.

[16]        Folios 73 – 75; T18.

[17]        Folio 84; T21.

31.     Of course, as Mr McQuinlan at one point submitted, a cancellation decision may be justified under more than one provision in the social security law.  But it seems to me that the shifting grounds evidenced here put in doubt the correctness of the 2007 cancellation decision.

32. The Social Security Appeals Tribunal decision, and this was relied upon in the respondent’s Statement of Facts and Contentions, identified as the source of the power to cancel in Mr Maksymiuk’s case, s 95 of the Administration Act which provides as follows:

95.(1)  If: 

(a) a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and

(b) the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and

(c) the person does not comply with the notice so far as it relates to a particular period; 

then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.

33. There was, as it will be recalled, only one letter sent to Mr Maksymiuk on 30 January 2007 that could remain for consideration as providing a valid basis for cancellation. Does it meet the requirement of being a “notice under s 68(2)” as referred to in s 95?

34. I would firstly observe that the respondent no longer seems to suggest that that letter satisfied the requirements of s 68 of the Administration Act. Rather, what is now relied upon are computer records of oral discussions with Mr Maksymiuk at Centrelink on various dates in January 2007. These, Mr McQuinlan submitted, should be taken as oral notifications to Mr Maksymiuk that he must attend at Centrelink on a fortnightly basis. In that regard, Mr McQuinlan further submitted, these oral communications were valid notification, given under either s 63 or perhaps s 64 of the Administration Act. Each of these sections allows for a notification or requirement to be given to a person other than in writing.

35.     Mr McQuinlan submitted that there are a number of provisions in the Administration Act under which Centrelink can require people to provide information or require them to attend the kind of interviews that Mr Maksymiuk was asked to attend. However, I was not satisfied, if oral communication is being relied upon as a ground for cancellation, that Mr Maksymiuk was told clearly that he had to attend Centrelink on a particular date. There was no direct evidence concerning the specific content of any oral discussions. Mr Maksymiuk was not cross-examined on the point.

36. Furthermore, s 63 and s 64 of the Administration Act are not referred to in s 95 and cannot provide the grounds that would permit an automatic cancellation of Mr Maksymiuk’s newstart allowance under that section. Nor does s 81 of the Administration Act permit cancellation; it being another section of the Administration Act that covers cancellation decisions. However that section does not apply to newstart allowees: s 81(1)(a) of the Administration Act. That leaves s 80 of the Administration Act as the general provision available to cancel or suspend where the Secretary is satisfied that newstart allowance was not payable.

37. Section 80(4)(iv), however, excludes from the exercise of the Secretary’s power to cancel or suspend, cases that involve newstart payability issues arising because a person commits a “participation failure” under s 626 of the Social Security Act. Mr Maksymiuk’s failure to attend his participation interview on 19 February 2007 probably falls within that description. In my view it is thereby excluded.

38.     Centrelink could require Mr Maksymiuk to lodge his forms fortnightly and attend participation interviews, as described.  However, in the context of the then very recent review by Mr Brown, which confirmed that Mr Maksymiuk should be eligible to lodge forms on a 12-weekly basis, it seems to me that there would need to be the plainest communication with Mr Maksymiuk that, less than seven days later, Mr Brown’s decision was going to be overturned.

39. I doubt that this was made plain to Mr Maksymiuk. First, there is the lack of clear evidence with respect to what, if any, discussions took place with respect to re-negotiating an Activity Agreement. Then there is what seems like a barrage of letters sent to Mr Maksymiuk on 30 January 2007. In the context of his then recent successful appeal these multiple letters were likely to be confusing, even if they had not been demonstrably deficient as written notices under the Administration Act.

40.     It ought to be borne in mind that the general provisions applying to newstart allowees, would normally see a matter of the kind relied upon here to cancel Mr Maksymiuk’s payment, being dealt with as a “participation failure”, a less harsh alternative than cancellation of the payment.

41.      Some reference ought to be made also to the evident concerns that some in Centrelink have held with regard to Mr Maksymiuk’s mental health.  There is the 2004 social work report.  Apparently, a Social Security Appeals Tribunal decision[18] in 2004 also addressed similar matters.[19]  

[18]        Folio 12; T2.

[19]        It is referred to at T2, but was not provided to the Tribunal as part of the T-documents.

42.     In all the circumstances, Centrelink ought to have issued Mr Maksymiuk with a warning.  If something more was needed, his newstart payment could have been suspended pending his compliance.  There were a number of circumstances in Mr Maksymiuk’s case that would suggest suspension as being preferable to cancellation.  In Gidaro v Secretary, Department of Social Security (1998) 184 ALR 550 the Federal Court referred to the need for careful consideration to be given to the choice between cancellation and suspension of social security payments.

43. Accordingly, I would set aside the cancellation decision and substitute the decision that Mr Maksymiuk’s newstart allowance should not have been cancelled. The 2007 cancellation decision was not in accordance with the Administration Act.

44. This decision one that is referred to as a “favourable determination” under the Administration Act[20] and there are rules that govern what date of effect applies to such decisions.   

[20]        Social Security (Administration) Act 1999; s108.

DATE OF EFFECT OF DECISION

45.     Mr McQuinlan submitted that whatever might now be regarded as wrong with the 2007 cancellation decision, Mr Maksymiuk failed to lodge an application for review in a timely way.  He did not contact Centrelink until 16 November 2007.  In Mr McQuinlan’s submission Mr Maksymiuk’s newstart payments cannot be restored to the date of cancellation because he did not request a review within 13 weeks of being notified of the 2007 cancellation decision.

46.     Mr Maksymiuk told me that he lived on his savings and was unaware that his newstart payments were not going into his account throughout the year. 

47. The provisions that apply for setting the date of effect after a successful review are to be found at s 109 of the Administration Act. Dates that may be set depend on findings about whether the person received notice of the decision under s 81 of the Administration Act, and on whether review was sought within the statutory time frame of 13 weeks. For the reasons I have mentioned already, I am satisfied that Mr Maksymiuk was sent a correctly addressed letter notifying him about the cancellation decision [21]. Receipt is deemed in those circumstances.

[21]        Folio 71 – 72; T17.

48. Accordingly, the date of effect of this decision is the date that Mr Maksymiuk went to Centrelink and sought review of the 2007 cancellation decision. This date, 16 November 2007, is the date from which Mr Maksymiuk’s newstart allowance can be paid, in accordance with s 109(2) of the Administration Act. Section 179(4) of the Administration Act can be called upon to ensure Mr Maksymiuk has an entitlement to newstart allowance in the period from 16 November 2007 to 31 December 2007, despite not necessarily lodging forms, or now demonstrating work efforts during that time (31 December 2007 was the date when his newstart payments re-commenced based upon a new claim).

49.     I would also observe that the 2007 cancellation decision having been set aside, Mr Maksymiuk is entitled to payment of newstart allowance between that decisions effective date, which was 23 January 2007, and the date of the decision itself, which was 20 February 2007.

MATTER 2008/3692:  THE DECISION NOT TO PAY ARREARS ON MR MAKSYMIUK’S CLAIM FOR NEWSTART LODGED IN DECEMBER 2007

50.     In many respects this decision has been superseded by the Tribunal’s decision in Matter 2008/1398.  That decision covers the same period for which Mr Maksymiuk was denied arrears payment on his new claim for newstart allowance which he had discussed with Centrelink on the same day as he made his application for review of the 2007 cancellation decision. 

51.     I would simply observe, with respect to this decision, that Mr Maksymiuk needed to do more than discuss a new claim with Centrelink.  To obtain the arrears payment he needed to submit the actual claim form by 30 November 2007.  He was told this in a letter, which again, was correctly addressed to him where he lived[22].  Mr Maksymiuk did not put in the claim form until 31 December 2007. 

[22]        Folios 30 – 32; T5 (No 2008/3692).

52. The effect of s 13(1) of the Administration Act if that a person can only be back paid on an informal claim where this is followed up within 14 days by a formal claim. Accordingly, I affirm that decision not to pay him arrears on that claim.

MATTER 2008/3692:  MR MAKSYMIUK’S REFUSAL TO ENTER AN ACTIVITY AGREEMENT

53.     The facts relating to this decision were that after Mr Maksymiuk reclaimed his newstart allowance, he was told that he needed to negotiate an Activity Agreement. 

54.     It seems that Mr Maksymiuk persuaded a Centrelink officer on 11 January 2008 to countersign an “agreement” that Mr Maksymiuk had re-drafted, adopting certain phrases and terms frequently seen in Centrelink Agreements.  His re-modelled document provided for very limited job-seeking activities on his part, and provided that he would return to 12-weekly lodgements.  This was not a “form approved by the Secretary” and ought not to have been signed by the Centrelink officer. 

55.     Once it was realised that this error had been made, Mr Maksymiuk was told that he would need to enter into a new Agreement, one that was in accordance with the approved form.  Mr Maksymiuk was not prepared to do this, as was indicated in his request for review, dated 15 February 2008.[23]

[23]        Folios 84 – 85, T25 (2008/3692).

56.     Mr Maksymiuk’s newstart allowance was again cancelled (the 2008 cancellation decision), on the grounds that he had failed to enter into a Centrelink approved Activity Agreement.[24]

[24]        Matter 2008/3692, T22

57. Section 593(1) of the Social Security Act sets out what a person must do to in order to maintain qualification for newstart allowance. One qualification requirement is that they must enter into an Activity Agreement. Under s 605 of the Social Security Act, a person who has an Agreement can be required to enter into a new Activity Agreement. It will be recalled that Mr Maksymiuk’s last confirmed Agreement was one dating from 2004.

58. Section 605(4) of the Social Security Act specifies that a Newstart Activity Agreement must be in writing, in a form “approved by the Secretary”.

59. Under the legislation, in refusing to sign the form approved by the Secretary, Mr Maksymiuk ceased to be qualified to be paid newstart allowance under s 593 of the Act and would continue not to be qualified until he agreed to sign. Newstart allowance cannot be paid where a person is not qualified for it.

60. Mr Maksymiuk finally agreed to sign an Agreement, in the required form, on 4 April 2008. However, between 8 February 2008 and 3 April 2008, Mr Maksymiuk cannot be paid newstart allowance, as he ceased to be qualified under s 593 of the Social Security Act. Accordingly, I affirm the decision under review dated 8 February 2008, which is the 2008 cancellation decision.

DECISIONS

61.     In Matter No 2008/1398 the Tribunal sets aside the decision under review and substitutes the decision that Mr Maksymiuk’s newstart allowance should not have been cancelled on 20 February 2007.  Newstart allowance was payable to Mr Maksymiuk from 16 November 2007, being the date that he sought review of the decision.

62.     In   Matter No 2008/3692 the Tribunal affirms the decisions under review

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed: ...............................[sgd]...................................................
  Emily Clarke, Associate

Dates of Hearing  21 November 2008, 10 February and 12 March 2009

Date of Decision  17 March 2009
The Applicant was self-represented
Advocate for the Respondent   Mr Rick McQuinlan, Centrelink