Seeto and Secretary, Department of Family and Community Services

[2004] AATA 788

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 788

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2003/1993

GENERAL ADMINISTRATIVE DIVISION		)
Re		WALTER SEETO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Rear Admiral A R Horton AO, Member

Date 27 July 2004

Place Sydney

Decision  The decision under review is affirmed.

……………………………………………….             

Rear Admiral A R Horton AO, Member              

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – activity test under section 603C of the Social Security Act 1991 – activity test exemption granted - exemption from activity test cancelled – whether applicant was incapacitated for all work for 8 hours or more per week - newstart activity agreement – applicant required to undertake and complete Commonwealth Rehabilitation Service program – applicant not incapacitated for work 8 hours or more per week – CRS program not completed – decisions affirmed

Social Security Act 1991 - sections 593, 603C, 604, 605, 606, 626, 644AA, 644AB, 644AE

REASONS FOR DECISION

27 July 2004 Rear Admiral A R Horton, AO

1.      This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 11 November 2003 that affirmed decisions of an Authorised Review Officer (“ARO”) on 13 May 2003 and 28 August 2003 in respect of Walter Seeto (“the Applicant”), those matters being cancellation of medical exemption from the activity test, and the imposition of an 18% breach rate reduction period respectively.

2. At the hearing on 29 June 2004, Mr Seeto was self-represented. Mr Garry Richardson, an advocate from the Centrelink Service Recovery Team, appeared for the Respondent. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T docs”), a letter from Mr Seeto dated 15 March 2004 with attachments (1) to (13), these being predominantly medical certificates and reports (Exhibit A1) , and the Respondent’s Statement of Facts and Contentions (Exhibit R1).

BACKGROUND    

3.      Mr Seeto arrived in Australia from Fiji in 1971.  He completed an electrical engineering degree at the University of New South Wales in 1975, subsequently working for Amalgamated Wireless Australia for 2 years, and then the New South Wales Electricity Commission.  In 1988, he established a retail computer business which failed in 1995, he being owed $500,000 by one client at that time.  He applied without success to various firms/businesses for employment after the collapse of his business, and has not worked since.  He applied for and was granted Newstart Allowance on 6 December 1995, the requirement for this benefit including an activity test unless otherwise agreed.  He is married with four children, the eldest being 17 years of age.

4.      In March 2001, he developed adhesive capsulitis (“frozen shoulder”) in the right shoulder from moving furniture and was granted activity test exemption.   Following an external work capacity assessment by a rehabilitation consultant, his activity test exemption was revoked on 16 November 2002.   Differences in opinion between various doctors and the rehabilitation consultant as to Mr Seeto’s condition, led an Authorised Review Officer (“ARO”) of Centrelink to set aside the cancellation of the exemption, pending a medical review by Health Services Australia (“”as").  This was undertaken on 11 February 2003.  

5.      Dr Kotulski of HSA considered Mr Seeto fit for full time light work, and considered that he could benefit from vocational rehabilitation and training for suitable duties.  On 20 February 2003 Mr Seeto was advised by the Manager, Centrelink (Baulkham Hills Office), that he was required to negotiate and sign a Preparing for Work Agreement (“PFWA”), this being an activity agreement under the Act.  Such an agreement was signed by Mr Seeto on 5 March 2003, and it involved attendance at CRS Blacktown.

6.      In letters from Centrelink (Baulkham Hills Office) of 3 March and 11 March 2003, Mr Seeto was advised that his exemption from the activity test was revoked, and that to continue being paid Newstart Allowance, he must “take reasonable steps” to meet his PFWA.  On 14 March 2003, Mr Seeto sought review of this decision on the basis that he could not work the required 8 hours per week, and on 9 April 2003, Centrelink confirmed the decision to revoke the exemption.   On 22 April 2003, Mr Seeto sought review by an ARO on the basis of contradictory statements in the report by Dr Kotulski, the response by an ARO on 13 May 2003 being to affirm the decision.  That decision is the first matter affirmed by the SSAT and before this Tribunal.

7.      The records before the Tribunal would indicate that Mr Seeto did not complete the CRS Blacktown as required by the PFWA.  When requested by Centrelink on 26 May 2003 to do so, he is recorded as declining (T29/95).  On 3 June 2003, CRS wrote to Centrelink stating “…I will not proceed further at this point because Mr Seeto no longer wishes to continue with CRS service and he is not interested in looking for work at this point in time”.  On 12 June 2003, Newstart Allowance was cancelled, and an activity test breach imposed.  This decision was affirmed on 21 June 2003.

8.      Apparently on the basis that Mr Seeto was fit for 8 hours of work or more per week, a further medical certificate of 15 July 2003 in respect of right shoulder injury and chest pain was rejected by Centrelink and Mr Seeto was advised accordingly. On 28 August 2003, an ARO affirmed the decision to impose an activity test breach, and that decision is the second matter affirmed by the SSAT and before this Tribunal.

9.      Mr Seeto gave evidence that the conditions of adhesive capsulitis and lateral epicondylitis of the left elbow (which occurred in November 2002) currently give him no problems and he has full use of his upper limbs.  He is also in receipt of Newstart Allowance and is undertaking the activity tests.

EVIDENCE 

10.     In a letter dated 16 December 2004 to the Tribunal, Mr Seeto gave his reasons for seeking such review.  He summarised these reasons at the outset of the hearing, and elaborated on them thereafter, although his oral evidence was generally not as firm or specific as his written reasons.   They may be summarised thus:

(a)SSAT members, who in his opinion may not have been medically qualified to make judgment on medical matters, based their decision, as had Centrelink, on the contradictory report by Dr Kotulski, and did not resolve conflicting medical opinions. 

(b)Dr Kotulski gave his responses to the questions of capacity to do any work “without any intervention” and “with educational training, vocational training or on the hob training” in both cases as 0 - 7 hours per week “current/within 6 months/6 – 24 months/over 24 months”.  Yet in his Whole Person Assessment, he considers him fit for full-time work.

(c)Mr Seeto disagrees with the comment by the ARO at 28 August 2003 that Dr Kotulski’s referral to 0 – 7 hours was made in error.  (The Tribunal notes that the ARO on that occasion (Mr Slattery) referred to Mr Lee (ARO) in his decision of 13 May 2003 “finding that Dr Kotulski’s true finding was fit for full time work”) 

(d)The matter of whether his shoulder condition was temporary or permanent was not adequately addressed by the SSAT in regard to exemption from the activity test.

(e)Centrelink did not conform to their own guidelines when refusing to accept the medical certificate from Dr Howard dated 15 July 2003.

(f)The reference by Dr Kotulski that the examination was for the Disability Support Pension (“DSP”) was in error and the report was therefore inadmissible – Mr Seeto had not applied for such a pension at that time.

(g)A claim for the DSP apparently made in early September 2003, and accompanied by a Treating Doctors Report from Dr Howard dated 3 September 2003, was refused by Centrelink on 26 September (Attachment 12 to Exhibit A1) on the basis that spondylosis was temporary, hence exemption from the activity test could be considered.

(h)The opinion of Professor Murrell, an orthopaedic surgeon who saw Mr Seeto on 13 August 2001, must be given precedence over the opinion of Dr Kotulski.

(i)The Work Capacity Assessor had no medical qualifications, and this was tacitly acknowledged by Centrelink when subsequently seeking an HSA assessment.

(j)A new PFWA was negotiated and signed on 28 July 2003, requiring Mr Seeto to undertake 6 job search contacts each fortnight.  This requirement was contrary to the conditions in section 606(1A) of the Act, limiting the number of job vacancies to 24 in 12 weeks, that is, 4 each fortnight. 

(k)He was not made aware of section 606(5) of the Act, which provided for variation of an agreement by negotiation, nor the ability of the Secretary to modify the activity test breach rate reduction period pursuant to subsections (c) and (d) of section 644AA(1A)

(l)Centrelink staff did not properly inform him of his rights under the law, and he had been discriminated against and victimised.   

EXEMPTION FROM THE NEWSTART ACTIVITY TEST

11.     Mr Seeto described his shoulder condition in March 2001 as such that he could not raise his arm higher than his shoulder, nor could he use his right hand.  A report from Dr A Gale of Rayscan Imaging on 24 April 2001, identified minimal temporary subacromial impingement at 90 degrees of abduction, which spontaneously resolved, and increased fluid within the tendon sheath, in keeping with bicipital tendonitis.  The report found no bone or joint abnormalities, nor evidence of soft tissue calcification, no evidence of a tear, and no other abnormalities.

12.     Mr Seeto is right hand dominant.  He could write, or use a computer, for up to half an hour or an hour before pain required him to stop.  For pain, he took voltaren.  For some months he attended physiotherapy, but felt that did little good.  An  examination on 13 August 2001 by Professor Murrell diagnosed adhesive capsulitis of the right shoulder with a “markedly restricted range of motion”, good power and normal x-rays.   He recommended a wait and see approach, or alternately an arthroscopic capsular release as a day case with a very good chance of regaining full motion.  In the event, Mr Seeto elected to take the former path, but he advised the Tribunal that he also considered the surgery option too expensive.   

13.     Ms Marianna Wong undertook a Work Capacity/Participation Assessment on 9 October 2002, by which time Mr Seeto was noting a gradual improvement. She notes that the Treating Doctors reports (by Dr R Shapiera of 18 December 2001 and 17 September 2002, both indicating that a return to full-time work was likely in 12 – 24 months) diagnosed adhesive capsulitis of the right shoulder only.  Ms Wong states that “Customer reported back pain and asthma” and stated in her report that  Dr Shapiera had confirmed that Mr Seeto had not seen him in the past 6 months for these conditions.  Nevertheless, Ms Wong notes occasional aggravation from back pain as reported by Mr Seeto, and recommends a rating under table 5.2 of the Impairment Tables at Schedule 1B of the Act. 

14.     Ms Wong  records “constant pain” and an inability to raise the right arm in respect of the adhesive capsulitis.  In accordance with the instructions in the report requiring her to give an impairment to a condition rated as permanent by the treating doctor, she suggests 20 points under Table 3.  She concludes with an opinion that Mr Seeto has transferable skills, including communication skills, and training to enable him to function in a sedentary job.  In that respect she differed in her assessment from that of Dr Shapiera.  Perhaps for this reason, she concludes her report with the suggestion that an independent medical review might be of benefit

15.     The decision was taken following the Work Capacity Assessment to cancel the exemption from the activity test, and Mr Seeto was so informed on 4 December 2002.  That letter from Centrelink also refers to the need to meet the conditions of the PFWA, a document that Mr Seeto said in evidence did not exist at that time.  There is no evidence to the contrary before the Tribunal.  Mr Seeto sought review of the cancellation of the exemption.   The initial response from Centrelink on 17 December 2002 affirmed the decision, and referred to the medical condition as “permanent”.  In due course, the  decision was set aside by an ARO, Mr Seeto being referred to Dr Kotulski of HSA for examination.  On 11 February 2003, Dr Kotulski diagnosed the condition as Upper Limbs with adhesive capsulitis right shoulder for 2 years which he noted as a permanent condition, and left lateral epicondylitis for approximately 6 months.  He considered Mr Seeto fit for full-time light work, and likely to benefit from vocational rehabilitation and training.  In oral evidence, Mr Seeto said he could not have worked in sales, as suggested, during this period because of his medical condition, but he could have worked in a call centre.

16.     Dr Kotulski referred to his examination as being in respect of a DSP assessment.  Mr Seeto gave evidence that he had not applied for the DSP at that time – although he did so later- and hence he submitted the report by Dr Kotulski was based on a false premise.  In evidence, the Respondent submitted that the “error” by Dr Kotulski was of no consequence as the instructions in the medical assessment proforma required the same parts to be completed for examination for Newstart Allowance as for DSP. 

17.     The “tennis elbow” in the left arm condition arose in November 2002.  The medical material before the Tribunal in respect of this condition commences with an initial medical certificate indicating an unfitness for work of 4 days, and a further certificate issued the following day, indicating unfitness for work for 3 months to 16 February 2003.  A further medical certificate extended the unfitness for work/study certification to 15 May 2003.   There are no further references to this condition.

18.     Returning to the assessment by Dr Kotulski, reference has been made to Mr Seeto’s argument that whereas the entries for work capacity “without intervention” and “with educational training, vocational training or on-the-job- training” seem to indicate a limitation of 0 – 7 hours per week in each case, and with a duration of more than 24 months, his entry for work capacity “with disability specific intervention” seems to show a current capacity of 30 plus hours per week, a significant contrast.  

19.     In the Whole Person Assessment, Dr Kotulski reports Mr Seeto as being fit for full-time work, without qualification.  Based on that report, Centrelink refused an exemption from the activity test, a decision subsequently upheld by an ARO on 13 May 2003.  Mr Seeto submitted that the report by Dr Kotulski, by its conflicting assessments, should not be accepted as evidence of his condition and fitness for work.  In oral evidence, Mr Seeto stated that by January 2003, that is before he saw Dr Kotulski, his condition was improving.  He exampled that he could cook and set tables.

20.     In his written statement of 16 December 2003 (Exhibit A1 Attachment 12), and in oral evidence, Mr Seeto objected to the failure of Centrelink to grant exemption from the activity test.  Whilst the Work Capacity Assessor and Dr Kotulski (and the Tribunal notes his treating doctor) considered the shoulder condition to be permanent, Centrelink described it as temporary on 26 September 2003 in rejecting an application for the DSP, and in accordance with section 603C(1) of the Act, he would not be required to undertake the activity test.  No other evidence was put in respect of this matter, but the Tribunal must take account of the opinion of Professor Murrell some two years earlier that an average time for healing was 2 ½ years, and that the shoulder was 80% better in November 2003 (evidence to the SSAT).  Hence the “temporary” condition might well be seen as appropriate in the circumstances of September 2003, but not earlier.   

IMPOSITION OF AN ACTIVITY TEST BREACH RATE REDUCTION PERIOD

21.     Mr Seeto signed a PFWA on 5 March 2003.  He informed the Tribunal that he did this under duress, being told that his Newstart Allowance would cease if he did not agree to this procedure.  The agreement required him to register with a job network member, undertake a job search contact each fortnight, and complete a CRS Australia program from 20 April 2003.  In evidence, he stated that he undertook the job search programme, but his medical condition would have prevented him working.  He considered his condition probably did not prevent him undertaking the CRS program, but he did not do so, as he was in the process of appealing against the decision not to exempt him from the activity test, and he did not consider the CRS program to be suitable.  He further stated that he was not aware he could vary the program, referring to sections 606(5) of the Act.

22.     A file note of 26 May 2003 states “cust(omer) advised that he now has to comply with the PFWA he signed on 5 /3/03.  Cust argued that he does not have to comply because in the ARO’s letter he has been given 13 weeks to ask for a review”.  The Tribunal notes that this 13 weeks refers to the criteria for appealing to the SSAT.   On 3 June 2003, a Rehabilitation Consultant of CRS Blacktown advised Centrelink that “I will not proceed further at this time because Mr Seeto is no longer wishes to continue with CRS service and he is not interested in looking for work at this point in time”.  In evidence, Mr Seeto stated that he did not say he was “not interested”, that he was still looking at one search contact per fortnight, and looking in newspapers and the internet for employment, but nothing was available.  Mr Seeto did not deny that he had failed to complete the CRS program, but stated that he was complying with the remaining requirements of the PFWA.  He stated he could not easily travel to Blacktown, as he could not drive his manual car, and his wife was only learning to drive; he would not use public transport. 

23.     On 12 June 2003, Centrelink cancelled Mr Seeto’s Newstart Allowance, because he did not comply with the terms of the activity agreement, and informed him that accordingly an 18% activity test breach was being implemented from that date until 10 December 2003. In letters of 18 June 2003 and 30 June 2003, Mr Seeto disputed this decision, apparently on the basis that he had lodged an Application for Payment Form on 10 June, as requested in the Centrelink letter, and this had been mislaid/lost due to the incompetency of Centrelink staff.  In the latter letter, he submits there was no breach as he had lodged the Application for Payment Form.

24.     In written evidence, Mr Seeto stated that Centrelink staff had victimized him and shown discrimination.  In his letter of 30 June 2003, he further disputed the “allegations” made by Ms Rezawan of CRS Blacktown in respect of no longer wanting to continue with the CRS service and having no interest in looking for work.  His explanation in that letter is that he could not continue (with CRS) pending resolution of his appeal on “previous matters”.

25.     In respect of the breach rate reduction, Mr Seeto submitted to the Tribunal that he was not made aware that the reduction period could be modified under the criteria in subsections 644AA(1A) (c) and (d) of the Act.

26.     On 15 July 2003, Dr Howard of Castle Towers Medical and Dental Centre provided a medical certificate in respect of right shoulder injury, low back pain and chest pain – musculosketal, indicating Mr Seeto was not fit to work for 8 hours or more a week, and would be unfit until 15 October 2003.  A file note of 23 July states that Dr Howard advised the main problem as right shoulder injury, chest pain being related to this, and that Mr Seeto could do light duty work.   Centrelink rejected this certificate on the basis that Mr Seeto was fit for 8 hours or more work per week, this presumably on the basis of the decision affirmed by an ARO the previous May.

27.     In July 2003, Mr Seeto signed a new PFWA.  He believed that in so doing, the breach rate reduction would cease, and he thinks he asked Centrelink to confirm.  He informed the Tribunal that he has met the conditions of this later PFWA.  The circumstances of this later PFWA are not matters before the Tribunal, nor indeed is the Treating Doctors report by Dr Howard dated 3 September 2003, which diagnoses lumbar spondylosis and records that the adhesive capsulitis condition is improving as regards the ability to function; it is assumed that this report relates to the claim for DSP.

APPLICATION OF THE LEGISLATION

THE ACTIVITY TEST

28.     The criteria for qualification for the Newstart Allowance are laid down in section 593 of the Act.   Subsection 593(1) requires, as is relevant to this matter, that the person satisfies the Secretary that throughout the period, the person is unemployed, and satisfies the activity test (unless not required to do so).  Subsection 603C(1) defines the conditions under which a person is not required to satisfy the activity test on medical grounds.   Whilst all criteria in that section must be met, the pertinent subsections in this matter are, (a) which requires the person be incapacitated for work because of sickness or accident, (b) wherein the incapacity must be caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident, and (c) wherein the incapacity is, or is likely to be, of a temporary nature.   Work is defined in subsection 603C(2) as being for at least 8 hours per week at award wages or above. 

29.     Mr Seeto was granted an exemption from the activity test after he injured his right shoulder in 2001,.   Following the Work Capacity Assessment in October 2002, and because of conflicting opinions on his medical condition, the later assessment by Dr Kotulski of HSA, the Respondent revoked the exemption.  Mr Seeto, both in writing on various occasions, including his letter to the Tribunal of 16 December 2003, and in his oral evidence, submitted that the revocation was unjustified in that his condition precluded him from working as defined, that the Work Capacity Assessor was not medically qualified to assess his condition, and that the report by Dr Kotulski was contradictory, and should not have been used in the manner it was, by the Respondent. Mr Seeto further submitted that the reports on his inability to work by various doctors and Professor Murrell had been given insufficient weight, and that he had been disadvantaged by his condition being defined as “permanent”. 

30.     The Respondent submitted that Mr Seeto had failed to meet the conditions of subsection 603C(1) (a) and (c) in that he was not incapacitated for work nor was any incapacity of a temporary nature.  The Respondent based those opinions on the assessment by Ms Wong, a qualified rehabilitation consultant, and the later assessment by Dr Kotulski, both of whom found Mr Seeto fit for appropriate full-time work.   In respect of the apparent contradictions in the assessment by Dr Kotulski, in respect of work capacity under various criteria, the Respondent submitted that his final summary of “fit for full-time light work” must take priority.  

31.     The Tribunal has concerns that the Respondent selectively used the report by Dr Kotulski.  That report presents difficulties, in that Dr Kotulski observed that the shoulder condition (which formed the predominant condition being reviewed, the other being the “tennis elbow”) was gradually improving, and referred to relevant limitations on Mr Seeto’s ability to function, yet considered his work capacity without intervention or with educational, vocational or on-the-job training to be currently less than 7 hours per week, a limitation persisting for more than 24 months. 

32.     Under the question of work with disability specific intervention, he assesses a capacity of 30 hours plus per week.  That latter specific requirement is not referred to in his whole person assessment wherein he considers Mr Seeto, without qualification, to be fit for full-time work.  The Tribunal has previously noted the comment by Mr Slattery that the decision by the ARO on 13 May 2003 found Dr Kotulski’s “true finding” to be that Mr Seeto is fit for full time work.  Mr Slattery then presumed the reference to 0-7 hours must have been a mistake.   Mistake it may have been, but the Respondent seemingly took no subsequent steps to clarify these discrepancies.

33.     However, notwithstanding the difficulties with Dr Kotulski’s report, the Tribunal finds it appropriate to take account of his final recommendation as to fitness for work.  The report by Ms Wong is comprehensive and clear, although she does suggest an independent medical assessment.  The opinions of various local medical practitioners are at variance and indeed led to the Respondent opting for a further assessment from HSA, and hence placed weight on that assessment.  Mr Seeto placed weight on the report by Professor Murrell, but as this single assessment took place some 18 months prior to the final consideration by the Respondent, it can be treated with caution.  In the circumstances  and taking account of Mr Seeto’s evidence that he thought he could have undertaken some light work had it been available, and his opinion that he was 80% better some 6 months after the decision to revoke the exemption, the Tribunal finds that Mr Seeto was fit for full-time work at 8 hours per week.  Accordingly the decision of the SSAT to cancel Mr Seeto’s medical exemption is affirmed.

BREACH RATE REDUCTION PERIOD 

34.      Subsection 593(1) requires that the person satisfy the secretary that reasonable steps are being taken to comply with the terms of an activity agreement.  Subsection 606(1) requires that the person undertake one or more of a list of prescribed activities, subsection 606(1A) being relevant in this instance and defining for a person over 50 years of age but less than 60, the number of job searches to be undertaken.  Subsection 606(2) provides the authority for the Secretary to approve the terms of an agreement, including the specification of activities to be undertaken.  In considering whether to approve an agreement, subsections 606(3) and 606(4) require the secretary to have regard to the person’s circumstances and capacity.  Subsection 606(5) allows an agreement to be varied, suspended, cancelled or reviewed, in negotiation with the person.     

35.      It is not in dispute that a Preparing for Work Agreement was signed by Mr Seeto on 5 March 2003.  He submitted that he did so under some sufferance, having been told that his Newstart Allowance would cease should he not do so.  He agreed with the Tribunal in oral evidence that such a penalty was provided for in the legislation.  Whilst he conformed to the requirements in the agreement to register and undertake job searches, he considered the CRS program to be unsuitable, and that further initiatives should await resolution of his appeal in respect of activity exemption.  He further considered himself unfit to undertake that program.  As earlier noted, he considers he was not helped, and was indeed victimised, by Centrelink staff. 

36.      Mr Seeto was particularly concerned that Centrelink had not informed him of his rights in respect of varying the agreement pursuant to subsection 606(5) of the Act, or in the matter of the subsequent decision to impose a breach rate reduction period, his rights under subsections 644AA(1A)(c)and (d) wherein the secretary could advise of an activity that might permit the rate reduction period to be reduced. 

37.      The position of the Respondent is that the PFWA was signed to the satisfaction of both parties, that the evidence from CRS and the applicant himself was quite clear that he did not satisfactorily undertake the CRS program , and that he had made no approaches to Centrelink in respect of need for reconsideration.  The Respondent submitted that the requirements of the agreement were quite simple, and that Mr Seeto had not taken reasonable steps in accordance with subsection 593(1)(f) of the Act to comply with the terms of the Agreement.

38.      The Respondent noted that Centrelink had made attempts to contact Mr Seeto without success to secure his attendance at CRS Blacktown.  That he was awaiting the outcome of an appeals process in respect of the revocation of the exemption from the activity test had no relevance to his ability to attend the programmed training.  In the event, the 18% penalty was correctly applied in accordance with the relevant legislation, namely subsections 626(1), 626(1A)(a) and 644AA(1).

39.      The evidence of Mr Seeto to the Tribunal was quite clear that he chose not to attend the CRS Blacktown agreed program as agreed in the PFWA because he did not think it suitable and because he was awaiting the result of his appeal against the decision to revoke the activity test exemption.  This flies in the face of his agreement to undertake the program, and his signing that agreement on 5 March 2003.  The PFWA proforma is explicit in stating the conditions of the agreement, including that failure to keep to the terms may lead to a loss of allowance, the occasions on which Centrelink must be informed, and that, contrary to his submission that he was not so informed, the agreement may be varied. 

40.      There is no evidence that Mr Seeto took reasonable steps to comply with the terms of his activity agreement.  In the circumstances, the Tribunal finds that the decision to impose a rate reduction period on Mr Seeto was correct, and that the Respondent correctly imposed an 18% rate reduction period in accordance with the legislation.

41.      Mr Seeto is an educated man, with what could be described as superior qualifications. He has considerable experience in the fields of engineering and computers, and the requirements of the agreement of 5 March 2003 would have placed minimal difficulty on his resources or time.  His letters and statements before the Tribunal are evidence of his general capabilities.  His evidence showed little effort to find new employment in his own right.  He seems content to remain on social security benefits, and unfortunately to occupy his mind with concerns as to his entitlements that should be easily resolvable with Centrelink.  This is evidenced in that he informed the Tribunal that a more recent PFWA of 28 July 2003 required him to undertake 6 job search contacts each fortnight contrary to the legislative requirements for his age.  This is not before the Tribunal, and may have been resolved.

DECISION

42.      The Tribunal affirms the he decision of the SSAT hereof:

(a)to cancel medical exemption from the Newstart allowance activity test; and 

(b)to impose an 18% activity test breach rate reduction period from 12 June 2003 to 10 December 2003.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:   Neil Glaser
      Associate

Date of Hearing             29 June 2004
Date of Decision           27 July 2004
Representative for the Applicant               Mr Seeto  
Advocate for the Respondent                   Mr Richardson