Shi and Secretary, Department of Jobs and Small Business (Social services second review)

[2018] AATA 1627

Shi and Secretary, Department of Jobs and Small Business (Social services second review) [2018] AATA 1627 (1 June 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/5234
GENERAL DIVISION  )

Re: Guo Shi
Applicant

And: Secretary, Department of Jobs and Small Business
Respondent

DIRECTION

TRIBUNAL:  Chris Puplick AM, Senior Member

DATE of CORRIGENDUM:  4 July 2018

PLACE:             Sydney

Pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that the text of the decision in this application is to be altered such that the reference to “Secretary, Department of Social Services” on page 1 of the decision is replaced with “Secretary, Department of Jobs and Small Business”.

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

Chris Puplick AM, Senior Member

Division:GENERAL DIVISION

File Number(s):      2017/5234

Re:Guo Shi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:1 June 2018

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – cancellation of Newstart Allowance – restoration of payment -whether mutual obligation requirements met – failure to attend interviews or appointments - obligation to re-engage with employment services provider - decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s. 33

Social Security Act 1991 (Cth), ss. 593, 601, 605, 615

Social Services (Administration) Act 1999 (Cth), ss. 42B, 42E, 42G, 42H, 63, 64, 80

SECONDARY MATERIALS

Australian Government, Department of Human Services, Newstart Allowance: align="left">Australian Government, Department of Human Services, Mutual obligation requirements: FOR DECISION

1. This is a matter involving the payment of Newstart Allowance.

2. Newstart is a scheme of financial support provided by the Commonwealth Government to assist people who are unemployed (and otherwise eligible) to obtain new or enhanced skills and professional advice which will allow them to re-enter the productive workforce on an on-going basis.

3. The website of the Department of Human Services (the Commonwealth department responsible for the Newstart scheme) lists the “Eligibility basics” for Newstart as:

   ·At least 22 but under age pension age

   ·Looking for paid work

   ·Under the income and assets test limits

   ·Prepared to meet mutual obligation requirements.[1]

   [1] >

   The website also sets out what mutual obligations are. The relevant details are:[2]

   [2] have mutual obligation requirements if you get:

   ·     Newstart Allowance

   What you need to do

   You need to apply for jobs or do training or study.

   Job plan

   To keep getting income support, you must have a job plan. Your job plan says what you’ve agreed to do to have the best chance of getting a job.

   You must agree to your job plan with us or your employment services provider and review it regularly.

   Employment services providers         

   Employment services providers help you find work. We’ll refer you to a provider of your choice in your area.

   Obligation Differences

   If you’re 55 or older

   You can meet your mutual obligation requirements by doing at least 30 hours per fortnight of:

   ·suitable paid work

   ·self-employment

   ·approved voluntary work

   ·a mix of these

   If you want to do voluntary work you need to talk to us about it. We must agree the work is suitable for you.

   If you’re sick or injured

   If it’s hard to look for work because you’re sick or injured, we may reduce your mutual obligation requirements for a while.

   You need to give us a medical certificate that says why you’re unfit to work for 8 hours or more a week. You can do this through your Centrelink online account.

   When penalties apply

   If you don’t meet your mutual obligation requirements we can reduce or stop your income support.

4. For the purposes of determining Mr. Shi’s claim the simple question is: had Mr. Shi met his mutual obligation requirements before the Department made a decision to cancel his Newstart Allowance?

5. The answer to that question, for the reasons set out below, is no.

6. It is not necessary to give a full exposition of Mr. Shi’s history of dealings with the Department which go back over many years. Rather, I shall simply outline the relevant history surrounding this application.

7. In September 2016 Mr. Shi had agreed to enter a Job Plan being provided by Global Skills, an approved provider of job support services.[3] This Plan, agreed to by the Applicant contained two conditions which must be met for the Applicant to continue to receive income support via Newstart. These were:

   [3] Disability Employment Services, Global Skills, Kerr Parade, Auburn, NSW. Tribunal Documents p. 96-99.

   Mutual Obligation Requirements

   I agree to attend job interviews and do other preparatory activities as directed by my provider … I agree to attend fortnightly Disability Employment Services appointments with Global Skills. If unable to attend an appointment … because I am sick  … I must contact my manager prior to the date and time and provide evidence within 24hrs .
   (here, an email address and contact phone number is provided for Mr Shi’s reference).

   Job Seeker’s Statement
   
   

   I understand that my Job Plan includes activities that I must do and appointments I must attend in order to receive income support payments under social security law. I understand that if I don’t participate in the activities or attend the appointments listed in my Job Plan, my income support payments may be stopped or reduced.

8. Mr. Shi attended a number of appointments with Global Skills, some of which were subject to being rescheduled, during January and February 2017.

9. On 23 February 2017 he was sent a formal notice that he was required to attend an appointment with Global Skills on Thursday 9 March 2017 at their premises in Auburn.[4] The letter made clear that there was the possibility of sanctions being applied should Mr. Shi fail to attend as required.

   [4] Tribunal Documents p. 67.

10. Mr. Shi duly attended on 9 March 2017 but due to pressure of work in the Global Skills’ office there was not a full meeting and another was scheduled for 13 March 2017.

11. Again Mr. Shi attended as required but on this occasion he refused to enter into a new Job Plan with the provider. Although this refusal, in itself, constitutes a failure to meet mutual obligation requirements, I have not made my final determination reliant upon this matter.[5]

    [5] Tribunal Documents p. 54-56.

12. On the same day (13 March 2017) Global Skills issued Mr. Shi with a notice under s. 63(2) of the Social Services (Administration) Act 1999. The notice made it clear that Mr. Shi was required to “attend the appointment outlined below in return for Newstart Allowance” and that the appointment was to take place at Global Skills premises on Wednesday 15 March 2017.[6]

    [6] Tribunal Documents p. 65.

13. Mr. Shi failed to attend the appointment on 15 March and, as a result, a non-attendance report was generated and on the same day the Department suspended Mr. Shi’s Newstart Allowance, effective from 8 March 2017.[7]

    [7] Tribunal Documents p. 80. 8 March was the start of the relevant fortnightly payment period.

14. Further on 15 March 2017 the Department issued Mr. Shi with a notice regarding this payment suspension and advising him of what he needed to do in order to stop the suspension being turned into a cancellation. This was followed up by an SMS message to Mr. Shi asking him to contact the Department as soon as possible to discuss his payment status.[8]

    [8] The Tribunal has no reason to doubt that these mail and telephone contacts were made as set out. The Applicant has resided at the same premises throughout these proceedings and the telephone number used was that provided by himself on various forms lodged with the Department.

15. On 21 March 2017 Mr. Shi contacted the Department. It appears that this contact was made with the Department’s offices in Tweed Heads. (This was the call centre to which the call was directed at the time). The Department’s electronic records show that Mr. Shi was presented with a number of options including simple attendance at a further appointment with Global Skills (which Mr. Shi was informed would result in the restoration of his payment)[9] or the lodging of an appeal against the payment’s suspension. Mr. Shi apparently insisted on the latter, as was his right.[10]

    [9] This would have occurred automatically. Tribunal Documents pp. 82-83.

    [10] Respondent’s Statement of Facts, Issues and Contentions at para 3.12.

16. It is important to record details of the conversation which took place between Mr. Shi and the departmental officer since my ultimate decision turns very much upon the details of this conversation and interaction between the parties.

17. The relevant section of the electronic record states:

    Customer contacted CC Tweed Heads on 21 MAR 2017 regarding Review of Original Decision … The customer has requested a further explanation of the decision. Customer has requested a review into the decision to suspend his payment. Customer newstart payment is currently suspended for failure to attend an appointment with his jobsearch provider. I have advised customer to simply re attend and his payment could be restored. I also advised customer that if he requested a review his payment may remain suspended until the review is complete. Customer insisted a review be lodged.[11]

    [11] Tribunal Documents p. 82.

18. On 13 April 2017 the Department issued Mr. Shi with a further notice which informed him that, because of his failure to reconnect with his provider (Global Skills) after being advised that he needed to do so, his Newstart Allowance was cancelled effective from 15 March 2017.[12]

    [12] Tribunal Documents p. 46.

19. On 19 April 2017 Mr. Shi responded to these contacts by the Department and made contact with an officer to discuss further the suspension of payments.

20. Once again it is necessary to set out the details of that conversation as recorded in the department’s electronic record. It reads as follows:

    Decision was: CANCELLATION (CAN)

    Decision Type: DID NOT CONTACT PROVIDER TO RE-ENGAGE

    Reason for Contact: DISAGREE WITH LEGISLATION/POLICY

    Why does the customer want the decision quality checked?

    The customer does not believe the payment should have been suspended in the first instance.

    Findings of fact:

    Please note that RKD655 was not the original decision maker but the suspension and subsequent cancellation of the payment occurred automoatically (sic). Contact attempts with the customer were not possible as he did not have or supply telephone contact details that would allow this to occur. The recommendation to affirm the decision has been made as the customer’s payment was suspended after he failed to attend a Provider appointment on the 15 March 2017. In lodging the appeal the customer has failed to provide any explanation for his reason for non attendance. The customer has then subsequently failed to contact his Provider to have a re-engagement appointment booked within 28 days and this has resulted in the customer’s payment cancelling. ‘Did not contact provider to re-engage’. (DCP). It is noted that if the customer had have contacted after failing to attend the appointment scheduled for the 15^th March 2017 and attended a subsequent re-engagement appointment that would have been booked from this contact this would have resulted in an automatic restoration of the customer’s payment. There is no evidence on the customer record to support this was not possible for the customer or any issues or barriers would have prevented him from doing so.[13]

    [13] Tribunal Documents p. 83.

21. On 28 April 2017 the Authorised Review Officer (ARO) spoke to Mr. Shi.

22. Once again it is necessary to set out in some detail the record of that conversation which is in the form of a note created by the ARO on that date. However, by way of initial observation, the Tribunal notes that the ARO called Mr. Shi.

23. The ARO note indicates: “Customer contact details: 28/4/2017 – 12.46 pm – called customer’s mobile, ID’d customer and confirmed he was available to discuss review.”[14]

    [14] Tribunal Documents p. 48.

24. This calls into question the previous departmental note of 19 April 2017 that there were no contact details on file for Mr. Shi to enable the department to contact him.

25. The ARO’s note continues:

    Customer does not agree with the decision to cancel his Newstart Allowance. Customer advised he contacted Global Skills on 15/3/2017 and advised he could not attend due to a medical condition. Customer advised he attended his GP on this day and was issued with a medical certificate that stated he was unfit for work for 15 and 16 MARCH 2017 due to a medical condition…..Customer agrees he received both letters from the department, the one stating his Newstart Allowance had been stopped and the cancellation letter.[15]

    [15] Ibid.

26. I must pause at this point to note that in evidence before the Tribunal, Mr. Shi denied that he had ever received or seen such letters (dated 19 April 2017) and that he became aware of them only when he saw them in the Tribunal Documents which the Department prepared for his first review before the Social Services and Child Support Division of this Tribunal. Given this conflict of evidence I feel bound to say that I accept the version proffered by the ARO.

27. The ARO’s note continues:

    Customer feels that as his payment had been stopped from 15/3/17 he should not have had to continue to comply with any requirements Centrelink notified him of. I advised that had he followed the instructions on the letter of 15/3/17 and provided a medical certificate, he may not have experienced an interruption to his payment … Customer restated that as he had been notified that his Newstart Allowance had been stopped, he felt he did not need to comply with the notice as he was no longer receiving Newstart Allowance. I asked customer if he had a medical certificate after the one for 15 and 16 MARCH 2017 to see if an exemption could be granted. Customer stated he did not want to tell me anything after his payments stopped as he had not been paid for this period … I went through the details with customer, advising that, even if he had a reasonable excuse for not attending on 15/3/17 he was still required to re-engage with his provider. This was outlined in the letter of 15/3/17. Customer stated the provider should have contacted him to make the re-engagement appointment. Customer feels that this is their job and he should not have to contact them. I advised that when Centrelink notifies a recipient of the requirement to contact their provider and attend an appointment with them, then they need to contact the provider and not wait for the provider to contact them to continue to receive their payments. Customer still feels the provider should have contacted him directly and he should not have to contact the provider to re-schedule a re-engagement  appointment. I asked again if customer had a med cert after 16/3/17. Customer again stated he did not want to tell me any of his personal details for periods he was not in receipt of payments. I advised his would help me assess if his payment was cancelled correctly and to make a decision regarding his Newstart Allowance for this period. Customer declined to discuss his persona details after 15/3/17.[16]

    [16] Tribunal Documents p. 48-49.

28. I again interpolate to record that Mr. Shi did in fact have a medical certificate for the period 15-16 March 2017[17] but there is no evidence that he presented this to either Centrelink or his Provider at any stage.

    [17] Applicant’s Tribunal Documents A15.

29. It is not necessary to continue to a detailed narrative beyond this point other than to note that Mr. Shi made an application for review of the decision which was heard by the Social Services and Child Support Division of this Tribunal (AAT1) which rejected his application, although for reasons which differed from that of the original decision maker and that his application for a stay of the AAT1 decision was rejected in a hearing by a Deputy President of the Tribunal.

30. It is from that AAT1 determination that Mr. Shi now comes before this Tribunal.

31. It is not necessary to set out the legislative framework in any detail, suffice to say that to qualify for the Newstart Allowance, a person must:

    ·be unemployed and meet the requirements of an activity test[18], the details of the which are clearly defined[19]

    ·have a current Newstart Employment Pathway Plan in place which the Secretary may require to be replaced with another plan from time to time[20] and

    ·attend interviews and appointments with a job provider as directed.[21]

    [18] Social Security Act 1991 (Cth) s. 593.

    [19] Social Security Act 1991 (Cth) s. 601.

    [20] Social Security Act 1991 (Cth) s. 605(2).

    [21] Social Security Act 1991 (Cth) s. 615.

32. Furthermore:

    ·a failure to attend interviews or appointments as directed may result in the person being deemed no longer eligible to receive payment[22]

    ·this in turn may result in the Secretary either suspending or cancelling the person’s payment[23]

    ·once a person has failed to engage with a provider by attending an interview or appointment as directed,[24] they are required, in order for the payment to continue or be restored, to re-engage with the designated Provider if so directed.[25]

    [22] Social Security (Administration) Act (Cth) ss. 63 and 64.

    [23] Social Security (Administration) Act (Cth) s. 80.

    [24] Social Security (Administration) Act(Cth) s. 63(2).

    [25] Social Security (Administration) Act (Cth) ss. 42B, 42E, 42G and 42H.

33. In coming to its decision the Tribunal has examined carefully the evidence related to two central incidents or series of incidents.

    15 March 2017

34. It is not in dispute that on this day Mr. Shi had been directed to attend an appointment with his Provider (Global Skills). He failed to do so and as a result an automated system generated a non-attendance report which resulted in a suspension of his Newstart Allowance.

35. Mr. Shi states that his failure to attend was as a result of his being unwell, and he has a medical certificate to confirm this.

36. He goes on to state that he did in fact contact the Provider by telephone and advised them that he was sick and unable to attend the appointment. This is a matter of some serious contention between the parties.

37. Mr. Shi produced a written record of two calls to the Provider made at 12.06 pm (lasting 26 seconds) and at 12.07 pm (lasting 20 seconds).[26] He told the Tribunal that the first of these connected with his case manager (Merna) and that he told her his name, that he had an appointment but was sick. He alleges that she then hung-up on the call. He told the Tribunal that the second call was not answered by anyone at Global Skills.

    [26] Tribunal Documents p. 57.

38. The Secretary disputes that the call in question was long enough for the information alleged to have been provided could have been provided.[27]

    [27] Respondent’s Statement of Facts, Issues and Contentions at para 4.24.

39. Mr. Shi invited the Tribunal to listen to a recording of the two calls which he had stored on his mobile phone. Very properly the Secretary’s representative raised an objection on the basis that such a recording, without the express consent of the other party, may have been illegally or improperly made.

40. The Tribunal was not in a positon to determine that matter. However section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that:

    “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”

1. On this basis, and noting the Respondent’s concerns, the Tribunal listened twice to the recording of the first call. As far as can be made out, the call was answered by Merna, who identified herself and whose identity was confirmed by Mr. Shi. He then went on to say words to the effect that he was Mr. Shi, he had an appointment but that he was sick. At this stage the call terminates – on what basis cannot be ascertained – either party may have terminated the call or the line may simply have disconnected. The second call simply records that no response was made to the ringing tones.

2. The Respondent questioned Mr. Shi about the call and it appears that it was made while Mr. Shi was outside on some public street and that it was made in noisy conditions.

3. There is no evidence as to whether or not Merna was able to hear clearly or to take due notice of the information conveyed to her. Mr. Shi speaks softly and with a pronounced accent. It is possible that Merna was not able to hear what was being said or to whom she was talking.

4. The Tribunal is thus left with the position that there is no doubt that a call was made to Global Skills and that it was answered. There is no doubt that Mr. Shi stated that he had an appointment but was sick. There appears to be no record in the Global Skills records of any such call being received or noted.

5. There is however a record that Global Skills made two attempts later that afternoon (the appointment being scheduled for 2.00pm) to contact Mr. Shi but that he did not respond to those attempted calls.

6. I have no doubt that Mr. Shi thought that he had done what was necessary to record a reason for his non-attendance, although he made no effort to provide a copy of his medical certificate to anyone and he did not respond to the attempts by Global Skills to contact him later that day.

   The subsequent letters

7. On 15 March 2017, a letter was sent to Mr. Shi following his non-attendance at the appointment of that day advising him that, as a result of that non-attendance, he was required to call the Provider and attend a further appointment, if required. He was advised that penalties could be applied if he failed to do so.

8. On 16 March 2017, a SMS message was sent to Mr. Shi’s recorded number advising him of the need to contact the Department to “discuss a possible issue with your payment.”[28]

   [28] Tribunal Document p. 45.

9. On 13 April 2017, there was further written advice from the Department that Mr Shi’s Newstart Allowance had been cancelled and that, as a consequence, he would need to make a new claim if he wished to continue to receive payments.

   The subsequent conversations

10. There were three conversations with officers of the Department – the first with the call centre at Tweed Heads, initiated by Mr. Shi himself and the second, also initiated by Mr. Shi to discuss his case and finally a call from the ARO. These took place on 21 March, 19 April and 28 April respectively.

11. The requirements for the continuation or restoration of his Newstart Allowance required Mr. Shi to undertake various steps. In the first instance the ARO attempted to contact Mr. Shi by telephone to advise him of these. The record shows that on 28 April 2017 telephone contact was made but Mr. Shi, after answering the call, requested that he be called back.[29] There appears to be no record of further telephone contact on that date. However the record also shows that a letter outlining his position was sent to Mr. Shi on the same day (28 April 2017).[30] Mr. Shi was also advised that re-engagement as required would result automatically in reinstatement of payments. The Tribunal observes that in each instance the departmental officers appear to have gone out of their way to be helpful and supportive of Mr. Shi and to have treated his complaints/concerns with respect and courtesy.

    [29] Tribunal Documents p. 84.

    [30] Tribunal Documents p. 85.

    Discussion

12. Mr. Shi is well familiar with the processes of Centrelink, job service providers and Global Skills. He has been in receipt of Newstart Allowance through various providers for several years[31] and is familiar with the requirements and obligations imposed on Newstart Allowance recipients.

    [31] Tribunal Documents p.94-95.

13. In his written submissions and appearance before the Tribunal, it is clear that he is a person of considerable intelligence and well able to manage his own affairs and to comprehend the written material related to the payment of welfare benefits. Although accompanied by an interpreter, he was able to speak clearly and directly in English when he chose to do so.

14. The Tribunal is persuaded that on 15 March 2017 he failed to attend a booked appointment with his Provider but that he did so for genuine medical reasons. The Tribunal also accepts that he made an attempt to contact Global Skills to advise them of reasons for his non-attendance and that he genuinely believed that he had fulfilled this requirement.

15. However it is also clear that, despite clear advice to him, Mr. Shi failed to take any steps whatsoever to re-engage with his Provider as is required by law if he is to continue to receive Newstart Allowance. He was aware of his obligations. He has been through this process before. He was repeatedly advised of his obligations both by letter and by direct discussion with departmental officers.

16. His assertion that the obligation lay upon his provider or the Department to ensure that he was re-engaged with the system is unsustainable. He was advised repeatedly that this was his responsibility and he chose not to act upon that advice.

17. In evidence Mr. Shi claimed that in part, this was because he was awaiting the outcome of his appeal for a review of the suspension decision. The review undertaken by the ARO was of the cancellation decision and Mr. Shi claims that this was not what he had requested and was thus somehow improper. This is not a sustainable proposition. Although the request for the review was initially of the suspension decision, that had been overtaken by the cancellation decision by the time it came before the ARO. It would have been otiose to review the suspension decision because the cancellation decision was, by then, the live decision which needed to be determined.

18. I find no basis for supporting Mr. Shi’s claim that he was told not to act until the review decision had been made. If anything, he was advised to the contrary – namely that any payment was suspended pending the outcome of the review but that he could reinvigorate payment by re-engaging.

19. As I have noted this matter was reviewed by AAT1 which on 17 August 2017 affirmed the decision of the Secretary, although it did so on quite different grounds.[32]

    [32] Tribunal Documents p. 3-9.

20. This Tribunal is not necessarily required to determine which set of reasons, arriving at the same conclusion, is to be preferred. It may well be that both are equally correct. The obligation on this Tribunal is to make its decision de novo and upon the basis of the evidence available to it at the time of the hearing, some of which may not have been before earlier decision-makers.[33]

    [33] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.

21. The Tribunal is satisfied that, whatever the circumstances of the missed appointment of 15 March 2017, the law required that Mr. Shi took steps to re-engage with his Provider in order to continue to be eligible for payment of Newstart Allowance. It is also satisfied that Mr. Shi was repeatedly advised of his obligations to do so. The obligations were cast upon him and not upon any other person or organisation.

22. Because Mr. Shi failed to meet those statutory obligations and failed to re-engage with his service Provider he did not meet his mutual obligation requirements and the decision to cancel his Newstart Allowance was the correct decision for the Secretary to make.

23. The decision under review is affirmed.

    Chris Puplick AM, Senior Member

    1 June 2018

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate

Dated: 1 June 2018

Date of hearing:	9 May 2018
Applicant:	In person
Solicitors for the Respondent:	Ms S Mahony, Department of Human Services