Skiba and Secretary, Department of Employment (Social services second review) - [2017] AATA 133

Skiba and Secretary, Department of Employment (Social services second review) [2017] AATA 133 (8 February 2017)
Division:GENERAL DIVISION
File Number(s): 2016/1453
Re:Zofia Skiba
APPLICANT

AndSecretary, Department of Employment
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:8 February 2017
Place:Sydney

The reviewable decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 19 February 2016 is affirmed.
...................................[sgd].....................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – connection failure – failure to enter into job plan – no reasonable excuse – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Reasonable Excuse - Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988
Secretary, Department of Employment and Workplace Relations and Vatarescu [2007] AATA 1717
Telstra Corp Ltd v Administrative Appeals Tribunal [2003] FCA 102
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
8 February 2017
THE DECISION UNDER REVIEW

The decision under review is the decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 19 February 2016. That decision affirmed a decision made by an authorised review officer (ARO) of the Department of Human Services (the Department) on 19 October 2015. The ARO affirmed the decision made on 24 August 2015 to apply a connection failure to the applicant’s newstart allowance.
ISSUES
The issues to be decided in this application are:
(a)whether the applicant committed a connection failure on 17 August 2015, and
(b)if so, did the applicant have a reasonable excuse for committing the connection failure?
BACKGROUND FACTS
The “T” references in this decision are to documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
The applicant has been in receipt of newstart allowance at various times since 1991.
On 20 July 2015, the applicant attended an initial appointment with the job provider A4e Group of Companies Haymarket (the Employment Services Provider). In her evidence to the AAT1, the applicant stated that at this appointment, she was asked to sign the Job Provider registration form. The applicant refused to sign the registration form and no job plan was entered into.
On 23 July 2015, the applicant attended a second appointment with the Employment Services Provider. However, the appointment was brief, as the applicant indicated that she was awaiting a response to an email that she had sent to the Employment National Customer Service Line on 21 July 2015.[1]
[1] See T14 pp 94-96 for the email.
On 7 August 2015, the applicant was sent a letter from the Employment Services Provider.[2] The letter included a notice that the applicant must attend an appointment with the Employment Services Provider on 17 August 2015, and that failure to attend and enter into or review her job plan as required, may result in her newstart allowance payment being stopped by Centrelink.
[2] T5 p 48.
On 17 August 2015, the applicant attended a third appointment with the Employment Services Provider. The applicant refused to enter into a job plan.[3] This is the alleged “connection failure” the subject of this matter.
[3] T1 p 3 at [2].
As a result of the applicant’s failure to enter into a job plan, the applicant’s case manager at the Employment Services Provider completed a Participation Report - Failure to Enter into/Vary Job Plan/EPP for the appointment of 17 August 2015, which was submitted to the Department to make a compliance penalty decision.[4] The Participation Report completed in relation to the connection failure on 17 August 2015 included the following details:
·The jobseeker has attended three appointments at which she has refused to discuss, negotiate or enter into a job plan. The jobseeker questioned the compliance warning on the notification letter, and refused to participate in the appointment.
·The jobseeker refuses to enter into any agreement on any level.
·The jobseeker was provided with 48 hours cooling off time, to which she responded that it is not required, as she will follow up with the Department of Employment.
·The jobseeker records verbal conversations on a recording device, and attempts to alter statements made by her Case Manager.
·If the job seeker’s version of events contradicts details in this Participation Report, please call to discuss.
[4] T20 p 279.
On 24 August 2015, a Participation Compliance Workflows Summary was created by Centrelink in relation to the appointment on 17 August 2015.[5] The Participation Compliance Summary included the following details:
Customer stated that she refused to sign the jobplan with her jobactive organisation, as the only activity they are mentioning is WFD [work for the dole] and nothing else. Customer advised she does not want to perform WFD alone, she wants other activities included.
…
Rang A4e and spoke with Chris, he stated, that he has attempted to negotiate a job plan with this customer on 3 separate occasions, however customer refuses to discuss any activities at all. Chris has tried to negotiate within jobplan, WFD, job searching activities and provider appointments but customer refuses to discuss any options. I advised Chris that the customer stated that the only option being given to her for her jobplan is WFD? Chris stated that this was incorrect, he has suggested the various requirements under job plan but customer refuses to discuss the jobplan.
[5] T20 pp 275-278.
On 24 August the Department made a decision to impose a connection failure, in respect of the appointment on 17 August 2015, and found that the applicant did not have a reasonable excuse.[6]
[6] T4 p 39.
On 28 August 2015, the applicant sought review of this decision.[7]
[7] T6.
On 19 October 2015, an authorised review officer of the Department affirmed the decision to impose a connection failure.[8]
[8] T10.
The applicant applied for review by the AAT1,[9] and, on 19 February 2016, the AAT1 affirmed the decision.[10]
[9] T12.
[10] T2.
On 21 March 2016, the applicant lodged an application for second review of a decision with this Tribunal.[11]
[11] T1.
THE LAW
The legislation relevant to the present proceeding is contained in the:
·Social Security Act 1991 (the Act),
·Social Security (Administration) Act 1999 (the Administration Act),
·Social Security (Reasonable Excuse - Participation Payment Obligations) (DEEWR) Determination 2009 (No.1) (the Reasonable Excuse Determination).
Section 593 of the Act specifies the requirements that an applicant must satisfy to qualify for newstart allowance. Relevantly, s 593(1) of the Act provides (emphasis added):
(c)if subsection 605(1) applies to the person, at all times (if any) during the period when a Newstart Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan; and
(d)if subsection 605(1) or (2) applies to the person, at all times during the period when a Newstart Employment Pathway Plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan; and
(e)if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan…
Section 605 of the Act allows the Secretary to require a person to enter into an Employment Pathway Plan (a job plan) if “the person is receiving, or has made a claim for, a newstart allowance”.[12]
[12] Section 605(1)(a) of the Act.
People receiving participation payments, such as newstart allowance, are subject to the compliance arrangements in Division 3A of the Administration Act. The object of Division 3A is set out in s 42B of the Administration Act, which provides:
Object of this Division
(1) The object of this Division is to encourage people to participate in employment and engage with employment services. It is also the object of this Division to secure compliance with a person’s obligations and requirements in relation to participation payments, and to ensure that those who do not comply are re-engaged with employment services as quickly as possible.
(2) However, this Division is not intended to punish a person who has a reasonable excuse for failing to comply with such obligations.
The circumstances in which the Secretary can impose a connection failure, are set out in s 42E of the Administration Act:
(1) The Secretary may determine that a person commits a connection failure if:
(a) the person commits any of the failures mentioned in subsection (2); and
(b) the person receives an instalment of a participation payment for the instalment period in which the person commits the failure.
(2) For the purposes of subsection (1), the failures are the following:
…
(b) the person fails to comply with a requirement, under section 501, 544A, 605 or 731L of the 1991 Act, to enter into an employment pathway plan; (emphasis added)
…
(4) Despite subsection (1), the Secretary must not determine that a person commits a connection failure if:
(a) the person satisfies the Secretary that the person has a reasonable excuse for the failure; or
…
(c) both of the following apply:
(i) the person’s failure is a failure to comply with a requirement under section 605 of the 1991 Act to enter into an employment pathway plan;
(ii) a newstart allowance is not payable to the person for the instalment period in which the person commits the failure because of section 615 of that Act; or …
Section 42U(1)(b) of the Administration Act requires the Secretary to determine by legislative instrument matters that are to be considered by the Secretary in determining whether an applicant has a reasonable excuse for committing a connection failure. The Reasonable Excuse Determination contains matters that the Secretary is required to consider in determining whether a person had a reasonable excuse.
THE TRIBUNAL’S CONSIDERATION
The Tribunal has taken into account all the documentary evidence before it, the applicant’s oral evidence, and the written and oral submissions made by the parties. It is not in dispute that the applicant did not enter into a job plan on 17 August 2015. Failure to comply with s 605 of the Act to enter into a job plan is a connection failure pursuant to s 42E(2)(b) of the Administration Act. The applicant was receiving newstart allowance during the period that included 17 August 2015.[13] The Tribunal accepts that she received an instalment of a participation payment for the instalment period in which she committed the failure in accordance with s 42E(1)(b). The Tribunal finds that the applicant has committed a connection failure.
[13] T20 p 276.
The substantive issue in this case is whether the applicant had a reasonable excuse for the connection failure. She advanced no reason that is a matter the Secretary is required to consider pursuant to the Reasonable Excuse Determination.
Clause 5(3) of the Reasonable Excuse Determination further states:
However, the Secretary must not take into account a matter if the Secretary is not satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement, or the provision of the 1991 Act or the Administration Act, to which the failure relates.
The Reasonable Excuse Determination is not exhaustive.[14] The Guide to Social Security Law (the Guide) at Instruction 3.1.13.90 provides the following guidance in relation to reasonable excuses:[15]
The meaning of the term reasonable excuse is discretionary but the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. Mutual obligation requirements are designed to prepare job seekers for work and therefore a reasonable excuse should also be one that an employer would consider reasonable for an employee who missed work...
The failure must not simply be a deliberate act of non-compliance. If the circumstance that prevented the job seeker from meeting their requirement was unforeseeable or outside the person's control, it provides a reasonable excuse...
It is also important to establish that the requirement that the job seeker was supposed to undertake was reasonable, was within their capacity and that the job seeker was notified correctly. If a requirement was not within a job seeker's capacity, they have a reasonable excuse for not meeting it....
[14] Section 42U of the Administration Act.
[15] Government policy should be applied in the absence of cogent reasons to not follow such policy: Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 645.
The applicant has expressed her reasons for not entering the job plans in various documents that are before the Tribunal and in her oral evidence to this Tribunal and before AAT1. The Tribunal has distilled her reasons as follow:
·The letter of 7 August 2015 showed that the applicant’s record had incorrect information about her compliance failures and the financial support that had been provided to her which had the effect of limiting her choice to work for the dole (WFD).
·The applicant had no legal agreement with the provider and therefore no obligation to enter into a job plan with the provider because she had not signed the registration form. The registration form included “privacy consents” which the Department subsequently told her she was not obliged to sign. When she had questioned the provider about the privacy consents at the meeting on 20 July 2015, the consultant grabbed the registration form from her and said that she would have to enter into a job plan. The provider had not asked her to sign the registration form again.
·If she had entered into the job plan, she would have been committing an illegal act because the consultant did not have the right to issue a job plan when there was no legal agreement with her because she had not signed the registration form.
·The consultant has to comply with the Privacy Act which requires the job seeker to give consent to modify information on the job seeker’s record. As she did not sign the document, the consultant did not have the right to collect her personal information.
·There was a separate sheet that she had to sign, which the applicant does not have, which allowed the job provider to disclose sensitive personal information about her to her employers. She cannot recall the information in detail because she just looked at it briefly. She requested that document under freedom of information but was only given the registration form.
The first page of the registration form includes following information:
Welcome
A4e is committed to helping you get back to work. Before we can start helping you on your journey into work we need to collect some information from you and commence you into jobactive.
Privacy statement
Your personal information is protected by law.
On behalf of the Department of Employment, A4e collects and uses personal information about job seekers for the purposes of providing employment opportunities and employment related services.
Some of your personal information collected by The Department may be shared with other government departments and agencies. These departments and agencies use this information to administer, monitor and evaluate their programs and contracted providers.
If you have concerns about the way in which your personal information is being managed by A4e, The Department of Employment and other departments or agencies, you should discuss these concerns with A4e, the department or agency concerned or with the Federal Privacy Commissioner, who can be contacted at >
When the Tribunal asked the applicant to identify the part of the registration form that she was concerned about, she referred to the last section of the form which lists various things the job seeker gives permission to the job provider to do, including:
When I gain employment, I authorise A4e to contact my employer regarding my progress for the first 6–8 months, for the purposes of providing support and assistance. I also authorise contact with my employer to obtain details of my hours/pay over the first 6–8 months of employment.
When I commence an educational course, I authorise A4e to contact the training provider about my progress with the first 2 semesters to the purposes of providing support and assistance. I also authorise contact with the training provider to obtain details of this course and its completion over the first two semesters.
The applicant said the following. She found it invasive to ask about her salary. They were spying on her. It was not normal to make it public.
When the Tribunal commented that the information was not being made public, the applicant said the following. She does not want them to know. If she got a job on her own, she would have to advise the job provider the identity of the employer and they could make those inquiries. That is her private information. She has concerns even if the job provider found her the employment.
When asked what happened at the appointment on 17 August 2015, the applicant said the following. The consultant did not mention anything about the application form. She said that she first wanted to discuss the letter dated 7 August 2015 advising her of the appointment.[16]
[16] T17 p 226.
The applicant told the Tribunal that she objected to the statement in that letter that their records showed that she had not met her requirements on at least five occasions in the last 12 months and Centrelink had been notified of those incidents. She claimed that she had two compliance failures not five, because there had been a decision of this Tribunal which “did away with” the compliance failures and at that time she had none, and the record should be rectified. The consultant refused to discuss it, saying that that statement was from Centrelink and not from him.
In the section of the letter of 7 August 2015 advising the applicant of the consequences of not attending and not entering into a review of her Job Plan “as required”, the letter stated:
You are expected to participate fully in the appointment and behave appropriately. This is a notice under Social Security Law.
The applicant claimed that none of the letters from other providers had that statement (the behaviour statement) in it. She said that on a prior occasion the same consultant had submitted a statement to Centrelink that she had a history of non-compliance and inappropriate behaviour. The consultant said that when he issued that statement to Centrelink, it was under a different contract and would not discuss it with her. The applicant said that she could not sign a legal document until incorrect information on the record was rectified.
The Tribunal finds that the applicant inferred that the behaviour statement in the letter was a consequence of there being an incorrect record about the number of her compliance failures. The email from the Employment – National Customer Service Line to the applicant dated 10 September 2015 states clearly that the behaviour statement is included in formal notification for all job seekers with mutual obligation requirements, for all appointments, “to ensure that job seekers are fully aware of the possible consequences of non-compliance” and “cannot be manually removed from your letters”.[17] The Tribunal finds that the claimed incorrect information was not the reason the behaviour statement was included in the letter of 7 August 2015.
[17] T16 p 112.

The applicant told the Tribunal that the consultant said that he would issue a participation failure when the applicant refused to enter into the review of her Job Plan because she could not make a decision based on incorrect information. She agreed to that.
The applicant claimed that having the correct information on the record was important because the requirements of the job plan differed depending on the information recorded. She claimed that as well as the incorrect information about the number of her compliance failures, there was incorrect information on her record about the financial support she had received which also affected the requirements of the job plan. She acknowledged that she had not raised that matter at the meeting on 17 August 2015.
The applicant could point to no evidence that supported her claim that different requirements applied depending on the history of compliance failures or financial support. She inferred that she was only offered work for the dole (WFD) because of the incorrect records about her compliance failure and financial support history.
The Tribunal does not accept the applicant’s claim that she was only offered WFD and prefers the contemporaneous record of the conversation between the consultant and an officer of the respondent on 24 August 2015 set out in paragraph 10 above.
The applicant’s claim that the incorrect information on her record affected the job plan she was offered is not supported by evidence before the Tribunal. The Tribunal does not accept that it is correct.
The applicant and respondent agreed that the applicant had not advanced any reason listed in the Reasonable Excuse Determination for her non-compliance on 17 August 2015. However, as the respondent acknowledged, that determination is not exhaustive.
The applicant argued that her reasons for not complying had a significant effect on her capacity to comply as provided in cl 5(3) of the Reasonable Excuse Determination.
The Tribunal finds that the only reason the applicant had on 17 August 2015 for not discussing or entering the job plan was her concern about there being false information on her record about the number of compliance failures which she assumed would limit her to WFD.
The Tribunal finds that the other reasons the applicant advanced for her refusal to participate on that day have evolved over time upon reflection. The Tribunal finds that only her reason on the day of non-compliance is relevant.[18]
[18] Telstra Corp Ltd v Administrative Appeals Tribunal [2003] FCA 102; Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988; Secretary, Department of Employment and Workplace Relations and Vatarescu [2007] AATA 1717.
The Tribunal does not accept that the applicant’s claimed concern about the errors on the face of the letter of 7 August 2015 was a reasonable excuse for her compliance failure. The Tribunal finds that the applicant raised the matter in order to avoid engaging in discussion or negotiation about a job plan. It does not accept the applicant’s claim that that matter had a significant effect on her capacity to comply with the requirement to which the failure relates within the meaning of cl 5(3) of the Reasonable Excuse Determination.
CONCLUSION
For the above reasons, the reviewable decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 19 February 2016 is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

....................................[sgd]....................................
Associate
Dated: 8 February 2017

Date(s) of hearing: 12 August 2016

Applicant: In person

Solicitors for the Respondent: T Hillyard, Department of Human Services

Date(s) of hearing:	12 August 2016
Applicant:	In person
Solicitors for the Respondent:	T Hillyard, Department of Human Services