Shore and Secretary, Department of Employment (Social services second review)

[2016] AATA 998

Shore and Secretary, Department of Employment (Social services second review) [2016] AATA 998 (7 December 2016) 

Division	GENERAL DIVISION
File Number	2016/3811
Re	Daniel SHORE
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	7 December 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

SOCIAL SECURITY - Newstart Allowance cancellation - non-attendance of appointment with employment provider - activity test - whether exempt from activity test - medical certificate of capacity for work - whether notice received - notice deemed to be received - whether actively seeking work - decision affirmed

LEGISLATION

Social Security Act 1991

Acts Interpretation Act 1901

SECONDARY MATERIALS

Guide to Social Security Law, Commonwealth of Australia 2016

REASONS FOR DECISION

Mr Conrad Ermert, Member

7 December 2016

INTRODUCTION

1. Mr Daniel Shore, the Applicant, has been receiving Newstart Allowance since 1996.  On 24 December 2015 Mr Shore’s employment services provider, MAX Employment, sent a letter to Mr Shore advising that he had an appointment to attend on 7 January 2016.  Mr Shore did not attend the appointment. 

2. On 7 January 2016 Centrelink sent a letter to Mr Shore advising him in part:

   “… Our records show that you missed an appointment with your employment services provider on 07 January 2016 and you did not contact them with a suitable reason why you did not attend.  As a result, your Newstart Allowance has been stopped from 01 January 2016”.

   Centrelink is the service provider for the Secretary, Department of Employment, the Respondent.

3. On 5 February 2016 Centrelink sent a notice to Mr Shore advising that his Newstart Allowance had been cancelled from 7 January 2016 (the original decision).

4. Mr Shore asked for a review of the original decision.  On 31 March 2016 an Authorised Review Officer (ARO) of Centrelink affirmed the original decision.  Mr Shore sought a review of the ARO decision.  On 16 June 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the ARO decision.  

5. This matter is an application for review of the AAT1 decision.

   HEARING

6. Mr Shore represented himself at the hearing and gave evidence under oath.  He was accompanied by Mr Clark for support.  Mr Tim de Uray represented the Respondent. 

7. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  I also had Supplementary T-Document ST1 – Centrelink Customer Records dated 8 November 2016, comprising four pages.

8. Mr Shore presented no documents as evidence in addition to those already included in the T-documents.

9. For the Respondent I took in for consideration the Secretary’s Statement of Issues, Facts and Contentions dated 9 November 2016.

10. Mr Shore requested the summons of a representative from MAX Employment to testify in regard to the despatch of the letter dated 24 December 2015.  After some consideration Mr Shore decided that a summons was not required. 

    LEGISLATION

11. The relevant legislation is contained in the:

    ·Social Security Act 1991 (the Act), and

    ·Acts Interpretation Act 1901

12. Centrelink policy in the administration of the Act is contained in the Guide to Social Security Law (the Guide).

    ISSUES

13. Section 593 of the Act provides the qualification requirements for the payment of Newstart Allowance (NSA), including, relevantly, the requirement for the person to satisfy the activity test unless they are not required to satisfy the activity test.

14. Section 601 of the Act provides that a person satisfies the activity test if the person satisfies the Secretary that the person is:

    (a)Actively seeking; and

    (b)Willing to undertake;

    paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

15. Section 603C of the Act provides that a person may be given an exemption from the requirements of the activity test if the person has a temporary incapacity that prevents them from undertaking eight hours per week of suitable work.  Section 603C(2) defines work as work of a kind that the person could reasonably be expected to do for at least eight hours per week on wages.

16. I must decide whether Mr Shore:

    (a)Was exempt from the activity test as a result of a temporary incapacity (section 603C of the Act);

    (b)Satisfied the activity test (section 601 of the Act); and

    (c)Was qualified to receive payments of NSA (section 593 of the Act).

    EVIDENCE

17. In his oral evidence, Mr Shore said that he broke his kneecap in an accident in July 2015.  In December 2015 he was required to attend rehabilitation sessions at Western Hospital Footscray.  He said he participated in this rehabilitation program on two or three days per week during the period from December 2015 to February 2016.  He said he provided all the relevant medical evidence to Centrelink in early December 2015. 

18. Mr Shore said he rang Centrelink in February 2016 because his NSA payments were suspended and was told that he needed to re-apply for NSA.  Mr Shore said that as he had provided all the medical documents to Centrelink, he assumed that the problem was the result of another delay in Centrelink’s processing of the medical documentation.  He said that he did not attend the 7 January 2016 appointment but “there was no proof that the notice was sent”. 

19. In answering Mr de Uray’s questions, Mr Shore said that he had been honest and truthful in his dealings with Centrelink.  He agreed  that the account of his evidence to the AAT1 hearing as recorded in paragraphs 12, 13, 14 and 15 of the Reasons for Decision was correct. 

20. When asked about the letter from MAX Employment dated 24 December 2015, Mr Shore agreed that the address shown was his correct postal address.  However, he stated that he did not receive the letter and he knew nothing about the appointment for 7 January 2016.  He said he did not receive a phone call about the missed appointment.  Mr Shore stated that he could not remember whether he had received the letters from Centrelink dated 7 January and 5 February 2016. 

21. When asked about the Centrelink file record dated 3 December 2015, Mr Shore disagreed with the record.  He said that he went in to Centrelink with medical records, including a letter from a physiotherapist and an appointment card.  He said he told the Centrelink officer that he had appointments “two or three times a week”, not that he is unable to go to appointments on Tuesday and Fridays due to his rehabilitation sessions. 

22. Mr Shore also disagreed with the contents of the Centrelink file record of 22 February 2016.He said that he called Centrelink to find out what was happening with his NSA payments.  He said that he had previously provided the medical documents.  He was adamant that at the time of making the telephone call he did not know about the 7 January 2016 appointment.  He said he was not sure whether he told the Centrelink operator that he had not received the letters of 24 December 2015, and 7 January and 5 February 2016.  He was also not sure if he told the officer that he had not been told of the 7 January appointment. 

23. Mr de Uray asked Mr Shore about the Centrelink file record dated 7 March 2016 which purported to record a telephone conversation with a Centrelink officer in the office of the Minister for Human Services.  Mr Shore said he recalled the conversation, but does not remember being told that his NSA suspension was as a result of his non-attendance at the 7 January appointment.  He also cannot remember saying that he believed he was exempt from the requirement as he had provided medical documentation.  He said he cannot remember saying anything about not knowing of the 7 January appointment and not receiving the notice of the appointment. 

24. When asked about the Centrelink file record dated 23 March 2016, Mr Shore said he could not recall telling the officer that he did not know about the 7 January appointment or that he had not received the letters of 24 December 2015 and 7 January and 5 February 2015.  In regard to the Centrelink file annotated on 31 March 2016, Mr Shore said he does not remember having the conversation.

25. Mr de Uray referred to the Reasons for Decision in the ARO decision of 31 March 2016 and noted that there was no mention of Mr Shores claim that he had not received the letters about and did not know of the 7 January appointment.  Mr Shore said he believed he would have told the ARO but he does not remember.   When asked about his evidence to the AAT1 hearing, Mr Shore said he could not be sure that he had told the tribunal that he did not receive the letter regarding the 7 January appointment. 

26. Mr Shore said he first became aware of the 7 January appointment when he called Centrelink on 22 February 2016.  He said he knows that he did not receive the 24 December 2015 letter because, after the AAT1 hearing, he had a thorough search for the letter but could not find it.  He said he is not sure why he did not include this issue in his application for review of the AAT1 decision.

27. When asked whether he had a knee rehabilitation appointment on 7 January 2016, Mr Shore said he did not know.  He reiterated that he attended Western General Hospital Footscray two to three times per week during December 2015, and January and February 2016.  He said that his knee injury did not prevent him from attending appointments.

28. When asked whether he has had problems receiving mail, Mr Shore said it is hard to know as he had suspicions of not receiving mail related to a dispute with a neighbour.

    TRIBUNAL CONSIDERATIONS

    Whether Exemption from Activity Test due to Incapacity (section 603C of the Act)

29. Section 603C of the Act provides that a person is not required to satisfy the activity test if, amongst other things, the person is incapacitated for work because of sickness or an accident, and the person has a certificate of a medical practitioner stating that the person is incapacitated for work.

30. In his submissions, Mr Shore said that all the medical evidence related to his knee injury is contained in the T-Documents, pages 7 to 13, 49, 50 and 58 to 71.  In addition Mr Shore contends that his knee injury is serious as the effects of the injury have lasted for six to seven months. 

31. Mr de Uray does not deny the knee injury but submits that there are no reports that relate to an inability to attend the 7 January appointment.  Mr de Uray refers to the medical certificate issued on 3 November 2015 which states that Mr Shore can undertake eight hours per week of office work.  Mr de Uray also refers to Mr Shore’s letter to the Minister for Human Services in which Mr Shore states that he rode his bicycle to Centrelink on 6 November.  Mr de Uray contends that Mr Shore’s knee injury is not serious in the terms of the policy contained in the Guide and that the injury did not prevent Mr Shore from attending the 7 January appointment.  In his evidence, Mr Shore accepted that the knee injury did not prevent him from attending the appointment.

32. The medical certificate covering the date of the appointment is that issued on 3 November 2015.  The certificate states that Mr Shore can do office based work for eight or more hours per week.  There are no other medical certificates that relate to the relevant period.

33. Mr Shore has offered no reasons why he was not able to perform eight hours per week of office based work at about the time of his appointment.  Neither has he offered reasons why office based employment is unsuitable for him. 

34. In considering Mr Shore’s contention that his knee injury should be considered as serious, I refer to the policy contained in the Guide. The policy provides, relevantly, that a person may be considered seriously ill if they have serious physical injuries requiring long recovery periods. 

35. I note the reports of the left knee x-ray dated 21 July 2015 and the report of the MRI scan of the left knee performed on 9 September 2015.  Both reports were as a result of referrals by Dr Inas Armanious and would have been available to Dr Armanious at the time of preparing his medical certificate dated 27 October 2015.  Dr Armanious reports the knee condition as Temporary with the patient being unfit for work from 27 October to 10 November 2015.  The temporary nature of Mr Shore’s knee injury is demonstrated by his ability to ride his bike to an appointment on 6 November.  I am not satisfied that Mr Shore’s knee injury is an injury that requires long recovery periods.  I find that Mr Shore’s knee injury is not a serious illness in the terms of the Guide. 

36. There is no medical evidence stating that at the relevant time Mr Shore was incapacitated for suitable work.  There is medical evidence that he was capable of undertaking eight hours per week of office work.  I find that Mr Shore was not exempted by the provisions of section 603C of the Act from meeting the requirements of the activity test as set out in section 601 of the Act.

    Whether satisfies Activity Test (section 601 of the Act)

37. Section 601 of the Act requires that, for Mr Shore to satisfy the activity test, I must be satisfied that he was actively seeking and willing to undertake paid work.

38. Mr Shore’s submissions on this point are that he did not receive the notice of his 7 January appointment.  He submits further that, at the time, he believed he was exempt from the requirement to attend appointments as he had previously provided to Centrelink medical documentation in regard to rehabilitation sessions for his knee injury.

    Receipt of Notice

39. In his submissions Mr de Uray relies on section 29 of the Acts Interpretation Act 1901 which provides relevantly:

    (1)  Where an Act authorizes or requires any document to be served by post …then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

40. In considering this submission, I note Mr Shore’s evidence that he has no record of mail not being properly delivered to his address, only a suspicion in regard to mail tampering associated with a dispute with a neighbour.  I do not accept that his suspicions constitute proof of the non-delivery of the appointment letter and the Centrelink notices. 

41. In addition, I find it highly improbable that the three mail articles related to this issue were the only items not to be delivered.  Mr Shore confirmed that the address shown on the letters is correct.

42. I am not satisfied that there is evidence to prove that the letter and notices were not delivered to Mr Shore’s postal address. Absent of such proof, section 29 of the Acts Interpretation Act 1901 provides that the letter is deemed to have been delivered.

43. In considering whether Mr Shore was aware of the contents of the letters, I note the following evidence in regard to his memory relating to the December 2015 to February 2016 period:

    ·he could not remember whether he had received the Centrelink letters of 7 January and 5 February 2016;

    ·in regard to his telephone conversation with a Centrelink operator on 22 February 2016, he was not sure whether or not he had told the operator that he had not received the letter from MAX Employment and the Centrelink notices;

    ·in the same conversation he was not sure whether he told the operator that he had not been advised of the 7 January appointment;

    ·in regard to his telephone conversation with a Centrelink operator on 7 March 2016, he cannot remember saying that he believed he was exempt from the appointment requirement as he had provided medical documentation;

    ·in the same conversation he cannot remember whether he said that he had not received the notice of the appointment;

    ·in regard to his telephone conversation with a Centrelink operator on 23 March 2016, he cannot recall whether he told the operator that he had not received the letters; and

    ·he could not recall whether or not he had told the ARO or the AAT1 that he had not received the appointment letter.

44. In his evidence, Mr Shore said a number of times that his memory going back that far in time was not good.  I note however that in his evidence to the AAT1 hearing Mr Shore is recorded as saying that he may have received the appointment letter and the Centrelink notice but he did not open or read them.  The AAT1 hearing was conducted on 16 June 2016 and was much closer in time to the events of December 2015 and early 2016.  I accept that the account given to the AAT1 is more likely to be correct than his evidence to this tribunal. 

45. After considering all the evidence, I am satisfied that Mr Shore received the letter advising the requirement to attend an appointment on 7 January 2016.  I am also satisfied that Mr Shore made no effort to acquaint himself with the contents of the letter.  He made no effort to attend the appointment nor did he contact MAX Employment.  In making his decision to ignore the contents of the letter from his employment provider, I consider that Mr Shore demonstrated that he was not actively seeking paid work. 

    Whether Reasonable Belief of Exemption

46. Mr Shore submits that at the time he reasonably believed that he was exempt from employment activities as a result of his knee injury.  This belief, even if reasonable, is not a satisfactory reason for not reading a letter from his employment provider.  It is also not a satisfactory reason for not contacting his employment provider to explain his situation in regard to his physiotherapy sessions. 

47. Mr Shore’s belief was based on the contents of the medical documentation he had previously provided to Centrelink for their consideration.  However, the documentation referred to by Mr Shore contains no medical certificate that he is incapacitated for suitable work as required by section 603C of the Act.  In addition, Mr Shore’s evidence was that his knee injury did not prevent him from attending the appointment.  In summary, at the relevant time he knew he had no medical certification of an inability to work and he knew that he was physically capable of attending an appointment.

    I am not satisfied that Mr Shore’s stated belief that he was exempt from the activity test was reasonable.

    Whether Seeking to undertake Paid Work

48. I am satisfied that Mr Shore received the letter notifying him of the requirement to attend an employment related appointment.  I am satisfied that he chose to ignore the letter.  I am satisfied that his stated belief that he was exempt from the activity test at the time was not reasonable.  I am not satisfied that at the relevant period Mr Shore was actively seeking paid work and I find accordingly.

49. I find that at the relevant period Mr Shore did not satisfy the activity test as required by section 601 of the Act.

    Whether Qualified for Newstart Allowance- (section 593 of the Act)

50. Section 593 of the Act provides that, for a person to be qualified for the receipt of NSA, the person must have satisfied the activity test or must be exempt from the requirements of the activity test.  I have found that, at the relevant period, Mr Shore was not exempt from the requirements of the activity test.  I have found also that, at the relevant period Mr Shore did not satisfy the requirements of the activity test.  As a result, Mr Shore is not qualified for the receipt of NSA and I find accordingly.

51. This finding means that the AAT1 decision was the correct or preferable decision.

    DECISION

52. I affirm the decision under review.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

[SGD].....................................................

Associate

Dated   7 December 2016

Date of hearing	22 November 2016
Applicant	In person
Advocate for the Respondent	Mr Tim de Uray