ROBERTS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 273
•19 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 273
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5558
GENERAL ADMINISTRATIVE DIVISION ) Re David Roberts Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Mr M. Hyman, Member Date 19 April 2010
Place Canberra
Decision The decision under review is affirmed. .....................[sgd]....................
Mr M. Hyman, Member
CATCHWORDS
SOCIAL SECURITY – Newstart allowance – Participation failures – Whether participation failures - Whether three within 12 months – Whether reasonable excuse – Held no reasonable excuse – Eight week non payment period properly imposed
Social Security Act 1991 ss 593, 605, 624, 629
Social Security (Administration) Act 1999 s 63
Social Security (Reasonable Excuse) (DEWR) Determination 2006
Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426
Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268
Secretary, Department of Employment, and Workplace Relations v Real [2007] FCA 988
Re Tilley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 950
Re Vatarescu and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 477
REASONS FOR DECISION
19 April 2010 Mr M. Hyman, Member 1. Mr David Roberts has been a Centrelink client for some time. For much of the past few years he has had a troubled life, dealing with problems of substance abuse and difficulties keeping his life organised. For some time he has been in receipt of Newstart allowance under section 593 of the Social Security Act 1991 (‘the Act’). As a recipient of Newstart allowance, he has had successive activity agreements in accordance with section 605 of the Act.
2. On 2 June 2009 Centrelink, under delegation from the Secretary, Department of Education, Employment and Workplace Relations (‘the Secretary’) took a decision to impose an eight-week suspension of Mr Roberts’ Newstart allowance for three participation failures, that is, for three failures to attend employment-related appointments made for him. Mr Roberts sought review of that decision by an Authorised Review Officer without success; he then applied for review by the Social Security Appeals Tribunal (‘SSAT’). It is the decision of the SSAT, affirming the Authorised Review Officer’s decision, that is now under review.
3.
Mr Roberts represented himself at the hearing. He submitted no written statements apart from his application for review,[1] a character reference from
[1] T1.
Mr Michael Terry Daley,[2] and records of his part-time employment[3] in December 2008, at the time of one of the potential participation failures. He also gave oral evidence.
[2] Exhibit 1.
[3] Exhibit 2.
The issues
4.The issues before me are:
(a) whether Mr Roberts committed three participation failures within twelve months;
(b) if so, whether he had a reasonable excuse for one or more of those participation failures; and
(c) whether he is subject to a suspension of Newstart allowance for eight weeks.
The statutory context
5. The provisions governing Newstart allowance and Mr Roberts’ circumstances for the purposes of this review are sufficiently complex that it is useful to set them out here before moving to the facts. They are found in the Act, the Social Security (Administration) Act 1999 (‘the Administration Act’) and the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (‘the Determination’) as they stood in the 2008-09 period.
6. Section 605 of the Act (relevantly) provides that a person who is receiving or making a claim for Newstart allowance may be required by the Secretary to enter into a Newstart activity agreement. Under section 593 of the Act, a person to whom section 605 applies must enter into such an agreement or be willing to, and must comply with that agreement to the satisfaction of the Secretary, if the person is to qualify for Newstart allowance.
7.Section 624 of the Act (relevantly) provides:
(1) A person commits a newstart participation failure if the person:
a) fails to comply with a requirement:
(i)that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and
(ii)that was reasonable; and
(iii)the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure;
…
(2) Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.
8. Subsection 63(2) of the Administration Act provides, so far as is relevant, that the Secretary may require the recipient of a Newstart allowance to undertake various activities, including attending appointments.
9.
Subsection 624(2A) of the Act provides that the Secretary must determine by legislative instrument matters to be taken into account in deciding whether a person had a reasonable excuse for a participation failure under section 624(2);
section 624(2B) provides that such a list of matters is not exhaustive. The Determination is the legislative instrument that gives effect to section 624(2A).
10. Section 629 of the Act relevantly provides that Newstart allowance is not payable to a person who commits three Newstart participation failures within twelve months.
The facts
11.
The facts of the matter are not in dispute. Mr Roberts entered into an activity agreement with Centrelink’s Employment Service Provider, Campbell Page, on
21 August 2008.[4] The agreement required, relevantly, that he attend scheduled appointments, or advise Campbell Page if he is unable to do so. A successor agreement with Campbell Page dated 29 April 2009 contains similar provisions.[5]
[4] T4.
[5] T17.
12. On 26 August 2008 Campbell Page notified Mr Roberts by letter of a Vocational Rehabilitation Services (‘VRS’) appointment for 2 September 2008;[6] the advice of the appointment included a compliance warning (i.e. a warning that failure to attend the appointment could constitute a participation failure); this appointment was discussed with Mr Roberts on 2 September 2008.[7] Mr Roberts failed to attend the appointment on 2 September.[8]
[6] T5.
[7] T6.
[8] T7.
13. On 22 December 2008 Campbell Page notified Mr Roberts by telephone of a VRS appointment for 24 December 2008;[9] the advice included a compliance warning; Mr Roberts made a commitment to attend the appointment and acknowledged that there could be consequences if he did not. He failed to attend the appointment.[10]
[9] T11.
[10] T12.
14. On 29 April 2009 Mr Roberts attended a face-to-face meeting (a ‘Rapid Reconnect’ appointment) with Campbell Page; at that meeting Campbell Page advised him of a VRS appointment scheduled for 14 May 2009; the discussion about that appointment included a compliance warning. Mr Roberts did not attend the appointment on 14 May 2009.[11]
[11] T21.
15. At the Tribunal hearing, Mr Roberts acknowledged that he had not attended the three appointments outlined above.
16.
Having recorded three participation failures within twelve months, on
2 June 2009 Centrelink took a decision to withhold Mr Roberts’ Newstart allowance for eight weeks.[12]
Mr Roberts’ reasons for not attending the appointments
17. Mr Roberts has offered various excuses for his failures to attend appointments. At the hearing, he stated that his memory is not good, and that at the time of the appointments he was ‘having a hard time’; that the appointments made for him were not suitable; that he was ‘messed around’ by Centrelink, and had become discouraged and defeated; and that he felt that he was not being heard.
18.
When pressed to be more specific about the way in which those excuses related to the dates of his participation failures, he said that in respect of the participation failure on 24 December 2008, he had been working at a cafe until
23 December; more generally, at that time he was avoiding his house, staying with a friend and feeling frustrated. Under cross-examination, Mr Roberts explained his absence from his house in terms of general difficulties with his life and the poor neighbourhood in which he lived, leading him to ‘shut down’ because he ‘couldn’t cope’. As a result, he had relied on friends to help him, including by providing him with alternative accommodation. He had not sought support from other organisations or consulted a doctor during this time.
[12] T22.
19. Mr Roberts added that he ‘didn’t like Campbell Page’, and ‘didn’t get on with them’, as they presented him with ‘a brick wall every time’. At the time of the appointments, he had ‘had enough’.
20. Mr Roberts further stated that the arrangements made for him for VRS were the ‘wrong assessment’; that he had tried to have his VRS standing changed, but without success; that he felt that in the relationship with Campbell Page he had had no power; and that the VRS arrangements were ‘the wrong fit’ for him, and were ‘not voluntary’. He had been left ‘feeling hounded’.
21.
At the time of the missed appointments, Mr Roberts advanced various other reasons for his non-attendance. Regarding the appointment missed on 2 September 2008,[13] Mr Roberts said he had been absent from his house and staying with a friend five kilometres away; he had not been able to go home to access his mail. Regarding the appointment missed on 24 December 2004,[14] Mr Roberts stated that he was working on that day and could not contact Campbell Page over the Christmas break, and he has advanced documentary evidence that he was employed part-time over this period;[15] but at the hearing he stated that he had been working up to the previous day, 23 December. Regarding the appointment missed on 14 May 2009,[16]
Mr Roberts stated that his sister in Sydney had had a miscarriage; although he subsequently told the SSAT that this had been a fabrication put forward at the suggestion of a friend.[17] At the hearing, Mr Roberts admitted that he had lied to Centrelink and to previous reviews about his reasons and excuses for the participation failures.
[13] T9.
[14] T14.
[15] Exhibit 2.
[16] T21.
[17] T2.
Reasoning
22. Campbell Page is variously described as a job network member or as an Employment Services Provider. I infer that Campbell Page was Centrelink’s agent with regard to Mr Roberts and acted under delegation from the Secretary of the Department in the exercise of his powers under the relevant legislative provisions.
23.
The facts set out above clearly demonstrate that Mr Roberts failed to attend three appointments made for him by Campbell Page, and that on each occasion he was given a compliance warning. Mr Roberts has committed three participation failures unless the requirements to attend the appointments notified under
subsection 624(1)(a)(i) were not reasonable, as provided by subsection 624(1)(a)(ii) (unless he is able to satisfy the Tribunal (in the shoes of the Secretary) that he had a reasonable excuse under subsection 624(2)).
Were the appointments made for Mr Roberts reasonable?
24. The three appointments that were the occasion of the participation failures were all of the kind set out in the activity agreements that Mr Roberts had signed with Campbell Page. They were appointments of the kind that might be considered appropriate to help an unemployed person enter or re-enter the work force.
25. From the tenor of Mr Roberts’ excuses for not attending, it might be assumed that he did not regard the appointments as reasonable for him, given that he was at odds with Campbell Page and found them evidently uncongenial. I note that on at least two of the occasions, however, the appointments were discussed directly with him; that he made an oral commitment on at least one of the occasions to attend the appointment, but did not do so; and that he signed a new activity agreement, containing commitments to attend such appointments, on 29 April 2009, the day of his Rapid Reconnection appointment, and the day on which Campbell Page advised him of the 14 May 2009 appointment.
26.
The reasonableness of appointments made under an agreement such as a Newstart activity agreement was considered by Mansfield J in
Secretary, Department of Employment, Education and Youth Affairs v Ferguson.[18]His Honour noted that appointments would need to be made with appropriate notice, that appointments conflicting with one another would lead to only one of them requiring attendance, and that attendance would need to be judged in substantive rather than absolute terms (e.g. arriving a few minutes late would not constitute a failure to attend). In Mr Roberts’ case adequate notice was given, there were no conflicting appointments, and he simply did not attend the appointments. In
Kronen v Secretary, Department of Education, Employment and Workplace Relations[19] Finn J, in circumstances broadly parallel to those before me, noted that intransigence on the part of the person required to enter into a Newstart activity agreement did not render the requirement to enter into such an agreement unreasonable.27. On the basis of the evidence before me, I find that the requirements imposed on Mr Roberts to attend the three appointments were reasonable. I find, therefore, that Mr Roberts had committed three participation failures within twelve months. Under section 629 Newstart allowance is not payable for a period of eight weeks, unless he can offer a reasonable excuse (under section 624(2)) for one or more of those participation failures.
Did Mr Roberts have a reasonable excuse?
28. Under the Determination the Secretary must take into account a prescribed list of possibilities in deciding whether a person has a reasonable excuse for a Newstart participation failure. These include that a person is living in a non-permanent location; that a person has an illness or condition requiring frequent treatment, or is cognitively impaired; has a psychological condition or mental illness; or is dependent on drugs or alcohol.
29. Although Mr Roberts appears to have had brushes with some of these issues in his past, he has not offered any of them as excuses for the participation failures. He is recorded as being ‘fluey’ and sneezing at his appointment with Campbell Page on 29 April 2009, but does not offer illness as an excuse for his participation failure on 14 May 2009.
30.
If none of the matters prescribed in the Determination apply, I must consider whether there is any other matter constituting a reasonable excuse under
subsection 624(2). In Secretary, Department of Employment, and Workplace Relations v Real[20] Kiefel J noted that the role of the Tribunal in regard to a reasonable excuse under subsection 624(2) is to consider the excuse or excuses offered by the applicant and reach a conclusion whether they are reasonable. The excuses Mr Roberts has offered to the Tribunal relate to his ongoing relations with Campbell Page: that he had difficulty relating to his Employment Service Provider and found the VRS activities to be ‘the wrong fit’. In somewhat similar circumstances, in Re Tilley and Secretary, Department of Education, Employment and Workplace Relations,[21] Senior Member Dunne found that where a Job Network Member was no longer delivering useful employment services to the client, but rather was pursuing an alternative ulterior motive, such a departure from good practice was a reasonable excuse for the client not to sign a Newstart activity agreement with that Job Network Member. On the other hand, a continuing unemployment record and an unwillingness to cooperate meant that a subsequent refusal to sign a Newstart activity agreement was without reasonable excuse. In Re Vatarescu and Secretary, Department of Education, Employment and Workplace Relations,[22] Senior Member Kelly found that dissatisfaction and impatience with the operation of the job network system was not of itself a reasonable excuse for participation failures.
[20] [2007] FCA 988.
[21] [2009] AATA 950.
[22] [2009] AATA 477.
31. Mr Roberts’ earlier excuse for not attending the 2 September 2008 appointment – that he was staying with a friend and not opening his mail – is supported by the written statement of his character witness, Mr Michael Terry Daley,[23] but even with that support does not, in my view, constitute a reasonable excuse. That Mr Roberts was working up until 23 December 2008 does not, in my view, constitute a reasonable excuse for missing the appointment on 24 December 2008. Mr Roberts has offered no persuasive specific excuse for missing the appointment on 14 May 2009. None of the matters were beyond Mr Roberts’ control, in the sense that he was prevented by external circumstances from attending, or faced with a conflict of imperative demands on his time.
[23] Exhibit 1.
32. The Act sets out a scheme whereby those who receive the entitlement of Newstart allowance must comply with certain conditions. It is not sufficient to escape these conditions that they are unwelcome, or that those with whom a recipient has to deal are uncongenial. Mr Roberts’ continuing dissatisfaction with Campbell Page may have made it more difficult and even unpleasant for him to meet the conditions imposed on him, but that does not constitute a reasonable excuse for non-compliance. I do not believe that Mr Roberts has a reasonable excuse for any of his participation failures.
33. I understand from comments made at the hearing that Mr Roberts is now in more secure employment, which is a welcome development. But it is clear that his relations with Centrelink and with Campbell Page have been less than satisfactory from his point of view. At the hearing Mr Roberts stated that he would not mind being denied benefits for eight weeks, as it would mean that ‘he would not have to deal with Centrelink’. It is for Centrelink to determine whether any changes could be made to Mr Roberts’ arrangements that might be conducive to his moving successfully into a more secure employment pattern.
Decision
34. The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Member M. Hyman.
Signed: ...................[sgd].....................................................
J. Lakin, AssociateDate of Hearing 25 March 2010
Date of Decision 19 April 2010
Applicant self-represented
Advocate for the Respondent Centrelink Legal Services
[18] (1997) 76 FCR 426.
[19] [2009] FCA 1268.
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