Sleeman and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1933

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1933

ADMINISTRATIVE APPEALS TRIBUNAL      )  
  )           No 2007/2982

GENERAL ADMINISTRATIVE DIVISION )

Re PETER SLEEMAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date9 November 2007

PlaceBrisbane

Decision

The Tribunal

(a)       affirms the decision under review in relation to the imposition of the first non-payment period of 8 weeks from 1 November 2006;

(b)       sets aside the decision under review in relation to the imposition of the second non-payment period of eight weeks from 21  February 2007; and

(c)       remits the matter to the respondent for assessment of the newstart payments in accordance with those decisions.

.................[Sgd].............................

RG Kenny
  Member 

CATCHWORDS

SOCIAL SECURITY – newstart allowance – an occasion of newstart participation failure without reasonable excuse - newstart allowance not payable for a period of eight weeks in respect of that occasion – decision affirmed.

An occasion of alleged newstart participation failure with reasonable excuse – newstart allowance non-payability period of 8 weeks incorrectly imposed – decision set aside in respect of that occasion - matter remitted to respondent to determine payment arrangements.

Social Security Act 1991 ss 624(1), (2), (2A), (2B)
Social Security (Administration) Act 1999 s 63

Social Security (Reasonable Excuse) (DEWR) Determination 2006 s 4

REASONS FOR DECISION

9  November 2007                 Mr RG Kenny, Member

Background

1.      From May 2005, Peter Sleeman was in receipt of newstart allowance which is a form of income support payable under the Social Security Act 1991 (the Act).  In accordance with a scheme under the Act, he was to be assisted in obtaining employment through the services of two Job Work Members.  These were CADET Training and Employment (CADET) and Skill Centred Queensland (Skill Centred).  CADET required him to attend appointments in Noosaville on two occasions in September and October 2006 and Skill Centred require him to attend an appointment in Maroochydore in October 2006.  On 14 November 2006, Centrelink determined that Mr Sleeman failed to meet those appointments and a non-payment period of eight weeks was imposed upon him.  CADET also required him to attend an appointment in Noosaville on 1 February 2007.  On 21 February 2007, Centrelink determined that Mr Sleeman failed to meet that appointment and a further non-payment period of eight weeks was imposed upon him.  Those decisions were affirmed by Centrelink on 22 February 2007 and, on review, by the Social Security Appeals Tribunal on 15 June 2007. 

Issues for Determination

2.             Here, there is a dispute about certain factual matters that arose after 1 February 2007.  However, I am satisfied that the material facts are those that arose on and before that date.  These are not in dispute.  Mr Sleeman concedes that he did not attend any of the four appointments referred to above and that he had no reasonable excuse in relation to the first three of them.  He accepts that a non-payment period of eight weeks was correctly imposed upon him in the first of the decisions made by Centrelink.  I am satisfied that Mr Sleeman’s concessions have been properly made and that the first non-payment period was correctly imposed.  In relation to the second decision, Mr Sleeman contends that he had a reasonable excuse for not attending the office of CADET for the appointment on 1 February 2007.  The issue for determination is whether Mr Sleeman had such a reasonable excuse.

Mr Sleeman’s Evidence

3.             Mr Sleeman gave the following evidence in relation to the events of 1 February 2007.  He had been undertaking casual work with an hotelier in the Tewantin area near where he lived.  On the afternoon of 31 January 2007, the day before his appointment with CADET, his employer contacted him and requested that, instead of going to his normal place of work the following day, he had to go to the Buderim Tavern for work.  He estimated this to be approximately one hours travel from his usual place of work.  He was told that he would be required from 7 am until approximately 2 or 3 pm.  He did not have a vehicle of his own and his flat-mate drove him to the tavern at Buderim where he worked until the nominated task was finished at 12 noon.  He then returned to his home by bus where he arrived at approximately 3:30 pm.  He had forgotten about the appointment with CADET and explained this by saying that he had been distracted by the need to attend work at Buderim and to make his transport arrangements. 

Other Evidence

4.             In evidence was a statement from Mr Sleeman’s employer which confirmed that he had been employed on a casual basis and that he had worked at the Buderim Tavern from 7 am until 12 noon on 1 February 2007.  This was conceded by Mr Hamilton, who represented the respondent.  Mr Hamilton also conceded that the public transport available to Mr Sleeman would not have enabled him to reach the CADET office by 2 pm if he worked until 12 noon.  Relevant bus time-table information was included in material tendered at the hearing but no specific reference was made to this and I accept the concession made by Mr. Hamilton. 

Consideration

5. A person may be required, in accordance with the terms of s63 of the Social Security (Administration) Act 1999, to keep appointments of the kind made by CADET and Skill Centred with Mr Sleeman. I am satisfied that the terms of that provision were met and that Mr Sleeman was obliged to comply with the appointment arrangements. A failure to do so may result in the commission of a “newstart participation failure” in accordance with s624(1) of the Act. In turn, this may lead to the imposition of a newstart non-payment period in accordance with s629(1) of the Act.

6.             An exception arises under s624(2) of the Act whereby the failure will not be a newstart participation failure if the person had a reasonable excuse for the failure.  Sub-section 624(2A) of the Act requires that a legislative instrument is to be determined which lists matters to be taken into account in deciding whether a person has a reasonable excuse for committing a failure.  This has been done through the Social Security (Reasonable Excuse) (DEWR) Determination 2006. Sub-section 4(2) thereof lists the following:

“(2)      The matters are:

(a)       the fact that the person is living in a non-permanent location on the streets or is using emergency accommodation or refuge at the time that the failure or refusal occurred; and

(b)       the literacy and language skills of the person, if the person’s lack of such skills is significant; and

(c)       any illness, impairment or condition of the person that requires frequent treatment, including any illness that is episodic or unpredictable in nature; and

(d)       any cognitive or neurological impairment of the person; and

(e)       any psychiatric or psychological impairment or mental illness of the person; and

(f)        any drug or alcohol dependency of the person; and

(g)       any unforeseen family or caring responsibilities of the person; and

(h)       the death of an immediate family member; and

(i)        if:

(i)        the person has been in gaol; and

(ii)the period that the person spent in gaol exceeded 14 days; and

(iii)      the person has been released; and

the person was released not more than 28 days before the person’s failure to comply with the Act”

7.             None of those factors have direct relevance to Mr Sleeman.  However, s624(2B) of the Act provides that a determination of whether or not a person had a reasonable excuse is not limited to those factors.  

8.             The focus of the requirement in s624(2) of the Act is not on whether or not Mr Sleeman acted reasonably in the circumstances in which he did not attend his appointment, for example, by contacting and advising CADET of his situation or by arranging for an alternative appointment time.  Rather, it is whether it or not he had a reasonable excuse for failing to attend at the appointed time.  I am satisfied that he had an excuse in that he was at work until 12 noon.  I am also satisfied that he needed to rely upon public transport to return form Buderim to his home area.  I have noted the concession by the respondent that the public transport available to him would not have enabled to him to reach the offices of CADET in time to meet the appointment obligation.  Given that the purpose of the scheme under the Act is to assist persons in Mr Sleeman’s position to obtain employment, I am satisfied that engaging in such employment and utilising public transport even until it was too late to meet the appointment time provided him with a reasonable excuse for not keeping the appointment.

9.             Mr Sleeman understood that he had already served an eight week non-payment period but he was unsure whether this was in respect of the first or second decision noted above.  Mr Hamilton was not able to clarify this and submitted that, in the event that the second decision was set aside, the matter be remitted to the respondent for further consideration.

Decision

10.           The Tribunal   

(a)affirms the decision under review in relation to the imposition of the first non-payment period of 8 weeks from 1 November 2006;

(b)sets aside the decision under review in relation to the imposition of the second non-payment period of eight weeks from 21 February 2007; and

(c)remits the matter to the respondent for assessment of the newstart payments in accordance with those decisions.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .....................................................................................
           F Kamst, Legal Research Officer

Date/s of Hearing  1 November 2007
Date of Decision  9 November 2007
The Applicant was not represented          
Respondent   Mr Bob Hamilton, departmental advocate