ROBERTO VAZQUEZ and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 510

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 510

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/346

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERTO VAZQUEZ

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date6 July 2009

PlaceSydney

Decision The decision under review is affirmed.

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

Member

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 234

Social Security Act 1991 (Cth) ss 28(1), 28(4)(b), 629(1)(e), 629(5)(b)

CATCHWORDS

SOCIAL SECURITY – work for the dole – long term unemployed – failure to comply with obligations – no reasonable excuse – eight week non-payment period imposed – decision under review affirmed

REASONS FOR DECISION

6 July 2009 Mr S E Frost, Member        

INTRODUCTION

1.      Roberto Vazquez has been receiving newstart allowance since 2001. 

2.      In 2008, because he was a very long term unemployed person, he was placed on a “work for the dole” program.  This required him to participate in full-time work for the dole for 25 hours a week for 44 weeks.

3.      In October 2008, according to Centrelink, Mr Vazquez failed to comply with that program, and as a consequence Centrelink imposed upon him an eight week non-payment period.  Mr Vazquez has asked the Tribunal to determine whether that decision was correct.

4.      I have decided that the imposition of an eight week non-payment period on Mr Vazquez was the correct decision.  My reasons follow.

THE ISSUES

5.      The case turns on Mr Vazquez’s obligations under the Social Security Act 1991 (Cth) (“the Act”) and the consequences of a failure to comply with those obligations.

6. Specifically, the issues, arising under s 629(1)(e) and s 629(5)(b) of the Act, are:

·     whether Mr Vazquez has failed, without reasonable excuse, to complete, participate in, or comply with the conditions of, an “approved program of work for income support payment”; and, if he has, then:

· whether, at the relevant time, a determination was in force under s 28(4)(b) of the Act in relation to Mr Vazquez.

7.      I will explore each issue in turn.

THE FIRST ISSUE – FAILURE TO COMPLETE, PARTICIPATE IN OR COMPLY WITH THE PROGRAM

8. Full-time work for the dole has been declared by the Secretary as an “approved program of work for income support payment”: s 28(1) of the Act and Annexure B to the Secretary’s supplementary submissions.

9.      On 13 August 2008, Mr Vazquez signed an Activity Agreement that included the following as one of his “compulsory activities”:

Fully Participate in FT WfD for 25 hours a week for a total of 1100 hours from 13/08/2008 to 16/01/2009 as directed by my Community Work Coordinator.

10.     The work for the dole provider notified Centrelink that Mr Vazquez failed to attend work on 1 October 2008.  He was asked to explain his failure to attend.  Initially he said that he was undertaking a course on that day, but he was unable to provide any evidence of any such course.  Later he said that he “didn’t have an excuse” for not attending (T8-38).

11.     He told the Social Security Appeals Tribunal that he thought he had attended work for the dole on 1 October 2008 but had forgotten to sign the time sheet.

12. His oral evidence before me was similarly vague, inconsistent and unconvincing. I find that he did not attend work for the dole on 1 October 2008. As a consequence, he has failed to comply with one of the conditions – namely, full-time attendance – of an “approved program of work for income support payment” for the purposes of s 629(1)(e) of the Act. It is clear, and I find, that he had no reasonable excuse for his failure to comply with that condition.

THE SECOND ISSUE – DETERMINATION UNDER S 28(4)(b) OF THE ACT

13. The determination that Mr Vazquez should “work for the dole” was made by an employee of Campbell Page, a Job Network Service provider, in Shellharbour. That determination was made under delegation from the Secretary under s 234 of the Social Security (Administration) Act 1999 (Cth): Annexure D to the Secretary’s supplementary submissions.

14. While the general position under s 234 is that the Secretary’s powers under the Act may be delegated to an “officer”, an “officer” for the purposes of s 234 includes a person engaged (whether as an employee or otherwise) by an organisation that performs services for the Commonwealth.

15. The effect of the instrument of delegation is that there was, at 1 October 2008, a determination under s 28(4)(b) of the Act in relation to Mr Vazquez.

CONCLUSION

16.     The decision to impose an eight week non-payment period on Mr Vazquez was the correct decision.  Therefore, I affirm the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed.................[sgd.......................................................
  Associate

Date of Hearing        19 May 2009
Final submissions received            15 June 2009
Date of Decision  6 July 2009
Appearance for the Applicant        Self represented

Appearance for the Respondent    Ms R Prasad, Centrelink Legal Services