Simonsen and Secretary to the Department of Family and Community Services

[2002] AATA 663

DECISION AND REASONS FOR DECISION [2002] AATA 663

ADMINISTRATIVE APPEALS TRIBUNAL        Nº W2001/390
GENERAL ADMINISTRATIVE DIVISION
  Re:         GLENN JEFFERY SIMONSEN

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             7 August 2002
Place:            Perth

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - newstart allowance - activity test - obligation to attend designated program as directed by service provider

Social Security Act 1991 s593, 601, 604, 606
Social Security (Administration) Act 1999 s150

Dudzinski v Rossington [2000] FCA 1659

REASONS FOR DECISION

7 August 2002  G.D. Friedman, Member

1. This is an application by Glenn Jeffery Simonsen (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 9 October 2001, which affirmed a decision of Centrelink dated 27 March 2001 that the applicant was required to continue an Intensive Assistance program (IA).

2. At the hearing of this matter on 9 July 2002 the applicant represented himself and Mr S. Ellis, Centrelink advocate, represented the Department of Family and Community Services (the respondent).
   BACKGROUND

3. The applicant was receiving newstart allowance when he was referred by Centrelink to IA with Mission Employment (Mission).  He signed a Preparing For Work (PWA) agreement for the period 15 March 2001 to 15 June 2001 which required him to participate in IA during this period.  The agreement is considered to be a newstart activity agreement (NAA).  The applicant sought review of the decision to refer him to IA and on 28 August 2001 an authorised review officer of Centrelink affirmed the decision.  On 31 August 2001 the applicant sought review by the SSAT.  Following the decision of the SSAT the applicant on 26 October 2001 lodged an application with the Tribunal for review of the decision by the SSAT.
   EVIDENCE

4. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T23), together with one exhibit (Exhibit A1) tendered on behalf of the applicant.   

5. The applicant gave oral evidence and told the Tribunal that the principal focus of the Supported Jobsearch Program (SJP) is to monitor the compliance of individuals with the requirements of the Social Security Act 1991 (the Act).  He said that job search requirements under the terms of his PWA agreement were essentially analogous to the activities under the SJP except that there is no supervision.  He stated that Centrelink monitors compliance with the Act by requiring him to complete an application for newstart and to list employers and job network members with whom he had contact in accordance with the terms of the PWA.  The applicant said that he negotiated the PWA with Mission on the basis that IA was intended to improve his chances of obtaining employment, not to monitor his compliance with the Act.

6. The applicant said that on 27 February 2001 Centrelink advised him that he had been referred to IA and that he would be required to attend an interview with Mission on 15 March 2001.  He stated that at the interview he signed a PWA with Mission under the provisions of s604(1C) of the Act.

1. He said that whilst on the IA program he satisfied all aspects of the agreement including fully participating in interviews with the service provider to review and assess progress with intensive assistance.  He canvassed employers for suitable jobs on a regular basis, he provided his resume to his service provider so that the provider may assist with review and update of the resume, he attended the SJP and the Worklink Program, he completed a Power Point Computer Program course at Canning College, and completed a Security Officer's course with Valiant Security Solutions.

1. The applicant stated that after approximately four months on IA he applied to Centrelink for review of the terms and conditions of his PWA with Mission and his participation in IA.  He requested transfer to another service provider closer to home.  He said that after seeking the review he became disillusioned and frustrated and decided to apply to exit from IA as he felt that he had fulfilled all aspects of the agreement with Mission and would not obtain any further benefit from the IA program.  The applicant stated that Centrelink agreed to conduct the review after he lodged an application to the Federal Court of Australia.

1. The Tribunal was told that the authorised review officer (ARO) of Centrelink informed the applicant on 10 August 2001 that it was unable to review the terms of his PWA, but in a subsequent letter dated 15 August 2001 the ARO stated that his earlier decision was incorrect. 

1. Following an interview with the ARO the applicant received a letter dated 28 August 2001 advising him that the terms and conditions of the agreement signed on 15 March 2001 with Mission had passed and this agreement was null and void. The applicant said that the ARO understood that all aspects of the agreement had been satisfied.  However the ARO stated that the applicant must accept referral to IA because he was still assessed as suitable for referral based on his score when assessed against the Job Seeker Classification Index (JSCI). 

1. The applicant stated that according to the Job Seeker Classification Instrument Report the JSCI has a fundamental role in the Job Network and is operated by Centrelink to identify and assess job seekers for referral to IA.  He said that the JSCI identifies the relative difficulty for job seekers in finding employment because of their personal circumstances and labour market skills.  He said that the JSCI is a relative and not an absolute measure of job seeker disadvantage in the labour market.  Job seekers may have similar levels of disadvantage measured by the JSCI but each may have different needs and a different profile of skills and circumstances. 

2. The applicant said that Centrelink customer service officers interview job seekers and ask questions to collect information on the particular factors. The factors include age, education, work experience, geographical location, disability or medical condition, language and literacy.  Each factor is assigned a numerical weight or points score.  On the basis of the information collected, Centrelink allocates a JSCI score to each job seeker by adding up the points scored for each factor.  Scores within a particular bandwidth determine whether a job seeker is referred to IA.  The applicant stated that he obtained a total score of 25, and the funding level was set at the JSCI bandwidth at scores of between 24 and 32. 

1. The applicant said that the Department of Employment Workplace Relations and Small Business (DEWRSB) has recently conducted a review of the factors that comprise the JSCI and changes were implemented on 23 March 2002.  These changes involve a re-calculating upwards the weighting of the JSCI factor scores. 

1. Rodney Norton, Authorised Review Officer, Centrelink, Midland, W.A., gave oral evidence and told the Tribunal that when an activity-tested job seeker has been identified and assessed as suitable for referral, the job seeker must accept referral to IA for the period during which the applicant remained suitable for referral.  This would require a new PWA to be negotiated and signed.  
   CONSIDERATION OF THE ISSUES

2. Relevant sections of the Act are:

601.(1)  Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, 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.

601.(2)  A person also satisfies the activity test in respect of a period if:

(a)       the Secretary is of the opinion that, throughout the period, the person:

(i)        should undertake particular paid work, other than paid work that is unsuitable to be done by the person; or
(ia)      should participate in an approved program of work for unemployment payment; or

(ii)       should:

(A)      undertake a course of vocational training; or
(B)      participate in a labour market program; or
(BA)     participate in a rehabilitation program; or
(C)      participate in another course;
          approved by the Employment Secretary which is likely to:
(D)      improve the person's prospects of obtaining suitable paid work; or
(E)      assist the person in seeking suitable paid work; or

(iii)      in a case where the person lives in an area where:

(A)      there is no locally accessible labour market; and
(B)      there is no locally accessible vocational training course or labour market program;

should participate in an activity suggested by the person and approved by the Employment Secretary; and

(iv)should undertake an activity approved by the Employment Secretary under the CSP; and

(b)       the Secretary notifies the person that the person is required to act in accordance with the opinion; and
(c)       the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement.

604.(1)  Subject to subsection (1A), if a person is in receipt of a newstart allowance, the Secretary may require the person to enter into a Newstart Activity Agreement.

606.(1)  A Newstart Activity Agreement with a person is to require the person to undertake one or more of the following activities approved by the Secretary:

(a)      a job search;
(b)      a vocational training course;
(c)      training that would help in searching for work;
(d)      paid work experience;

(e)       measures designed to eliminate or reduce any disadvantage the person has in the labour market;

(ea)     subject to section 607A, development of self-employment;
(eb)     subject to section 607B, development of and/or participation in group enterprises or co-operative enterprises;
(ec)     an approved program of work for unemployment payment;
(f)       participation in a labour market program;
(fa)     participation in a rehabilitation program;
(fb)     an activity approved by the Employment Secretary under the CSP;
(g)      an activity proposed by the person (such as unpaid voluntary work proposed by the person).

1. The applicant referred the Tribunal to s593 of the Act, which prescribes the qualifications for newstart allowance.  He submitted that one criterion that must be satisfied is that the person must satisfy the activity test throughout the relevant period of receipt of the allowance.  He stated that s601 sets out the obligations of a person seeking newstart allowance in satisfying the activity test criteria in section 593(1)(b)(i).  The basic matters involved are set out in s601(1), namely, the person must satisfy the Secretary that he or she is actively seeking and willing to undertake paid work.  But s601(2) also provides a means for a person to satisfy the activity test in special circumstances where the Secretary has formed a specific opinion that the newstart allowance recipient should participate in a labour market program.

1. He stated that in Dudzinski v Rossington [2000] FCA 1659 the Federal Court of Australia found that there is no link between s601(1) and s601(2) and that the activity test requirements of the Act can be satisfied either under s601(1) or s601(2). Furthermore the requirement in s601(1)(a) is that the person be actively seeking work, which is a test of the genuineness of the job search activity and not its realistic prospects of success.

2. The applicant submitted that simply because a person has been assessed as suitable for IA under the JSCI does not mean that participation in IA will address all the factors that identified the person as being disadvantaged in the first place.  For example as a person becomes older he or she will score higher on the age factor.  Similarly the weight given for the duration a person is unemployed will not necessarily be addressed by IA as this factor increases to a maximum of 26 points for up to 10 years' unemployment.  He said that as long as he is unemployed he will be assessed as suitable for referral to IA due to his high scores.  However no matter how much he participates in IA his factor scores will not change as the JSCI is only a measure of relative disadvantage.  The applicant described the decision to require him to continue with IA as arbitrary and illogical, and suggested that the respondent's motives were based on an intention to monitor his compliance with the requirements of the Act.

1. Mr Ellis submitted that any restrictions on the applicant were placed by the service provider and not Centrelink.  He said that Centrelink uses the JSCI but has no control over the factors included or the relative weightings given.     

1. Mr Ellis stated that when Centrelink decides that a person is required to enter into an activity agreement and undertake one or more of the activities listed in s601(4) of the Act, and by approval of these activities under s604(2), the person is required to undertake them or he or she will fail the activity test and will lose the entitlement to newstart allowance.  Mr Ellis submitted that the mere fact that a person may satisfy the general activity test in s601(1) does not prevent the respondent from forming opinions concerning labour market programs that the person is required to undertake or other matters referred to in s601(2), or other matters required according to an activity agreement under s604 and s606.  He said that in such cases the person must comply to the extent required under the Act. 

1. Mr Ellis said that Centrelink has no control over the components of the JSCI or the manner in which the scores are calculated.  He submitted that any complaints about the JSCI should be referred to DEWRSB.

1. In reaching a decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing.  The Tribunal notes that the applicant does not wish to be referred back to IA because he believes that the restrictions placed on him are arbitrary and illogical, and that the service provider has not necessarily developed a program designed to meet the applicant's specific needs.  The Tribunal also notes that in the applicant's opinion the components of the JSCI do not seem fair or reasonable because some factors such as age will always result in a high score for him.  The Tribunal agrees that participation in IA will not always address every factor identified in the JSCI.

1. The Tribunal accepts the submission from Mr Ellis that in this case any restrictions on the applicant were placed by the service provider and not Centrelink, and that Centrelink has no control over the factors included in the JSCI or the relative weightings given.

1. The Tribunal notes the relevant provisions of s606(5) and finds that an NAA may be reviewed from time to time at the request of either party. The Tribunal also finds that under s150 of the Social Security (Administration) Act 1999 the SSAT had power to review decisions made under activity agreements.  Under s601 and s604 of the Act the Tribunal finds that the respondent has the power to form opinions about labour market programs that the person is required to undertake or other matters referred to in s601(2), or other matters required according to an activity agreement under s604 and s606.  Therefore in such cases the person must comply with obligations to the extent required under the Act.  In reaching this conclusion the Tribunal does not accept the submission by the applicant that his obligation to attend IA was evidence that the motivation by Centrelink was to ensure compliance with the Act.  

1. For these reasons the Tribunal finds that the applicant's obligation to participate in IA was part of his requirement under the PWA. 

DECISION

1. The Tribunal affirms the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member

(sgd)       Jason Lim
              Associate

Date of hearing:  9 July 2002
Date of decision:  7 August 2002
Advocate for applicant:               Self-represented
Advocate for respondent:            Mr S. Ellis, Centrelink