Snashall; Department of Family and Community Services

[2000] AATA 767

ORAL DECISION AND WRITTEN REASONS FOR ORAL DECISION
[2000] AATA 767

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/6

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Applicant
           And    BELINDA SNASHALL      

ORAL DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE    

Date31 August 2000

PlaceAdelaide

Decision      The Tribunal sets aside the decision under review, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, and in substitution therefor, reinstates the delegate's decision of 30 August 1999.
  ..............................................
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Newstart Allowance - failure to attend interview - problems with mail - receipt of notice - prior history considered - whether problems foreseeable and within claimant's control
Social Security Act 1991 s.601
Acts Interpretation Act 1901
Re Secretary, Department of Family and Community Services and Fowler [1999] AATA 659

WRITTEN REASONS FOR ORAL DECISION

31 August 2000       Senior Member J.A. Kiosoglous MBE   

1. This is an application by the Secretary, Department of Family and Community Services for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 November 1999 (T2) which set aside a decision of an authorised review officer (ARO) of the respondent dated 21 September 1999 (T13) which had affirmed the delegate's decision of 30 August 1999 (T6) to impose an activity test breach rate reduction period.

2. The applicant was represented by Mr J. Underwood, a departmental advocate. The respondent failed to attend the hearing and the Tribunal proceeded to hear the matter in her absence on the evidence placed before it. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T18), together with one exhibit, lodged by the applicant (Exhibit A1).
   history of the application

3. The respondent was subject to an activity agreement (T10) and in receipt of Newstart Allowance during the relevant period.

4. By letter dated 30 July 1999 (T3) the respondent was required to attend an interview scheduled for 18 August 1999 with her job network member, Drake Jobseek, to discuss her progress and review her activity agreement.

5. The respondent did not attend the interview, and on 30 August 1999 the delegate decided that the respondent was unreasonably delaying entering into an activity agreement, and imposed an activity test breach rate reduction period accordingly (T6).

6. This decision was affirmed by the ARO but set aside by the SSAT.  The SSAT accepted that, due to problems with her mail, the respondent did not receive the notice dated 30 July 1999 (T3) and did not fail to comply with the terms of her Newstart activity agreement as the matter was outside her control, as a result of the failure to receive the notice.
   applicant's submissions

7. Mr Underwood, on behalf of the applicant, submitted that notice had been given to the respondent and that the breach had been correctly imposed.

8. He referred the Tribunal to departmental records, namely document T16 and the attachments to Exhibit A1, which suggest that the respondent was aware as early as March 1999 of mail problems, and had been advised to both stay in close contact with Drake Jobseek, and to also address her mail problems in order to avoid a breach.

9. He submitted that the respondent's failure to do either of these things indicated a recklessness as to her obligations under the Social Security Act 1991 (the Act). He further submitted that the reasons for her failure to attend the interview were matters that were foreseeable and within her control.
   discussion and findings

10. As the respondent failed to attend the hearing, the Tribunal has not had the opportunity afforded the SSAT to assess her veracity as a witness, and nor has Mr Underwood had the opportunity to cross-examine her.  The Tribunal is left in the position whereby it must assess the matter on the evidence already before it.

11. The Tribunal is satisfied, and so finds, that the letter dated 30 July 1999 (T3) was a notice in accordance with the legislation.  It is satisfied, and so finds, that this notice was posted and that, pursuant to the provisions of the Acts Interpretation Act 1901, this notice can be deemed to be served.

12. The Tribunal appreciates that the respondent may well have had problems with her mail, as indicated to the SSAT.  The question that arises however, is whether or not such problems were outside of the respondent's control as at the time the notice was served.

13. The Tribunal notes that this issue has been canvassed by Deputy President Burns in Re Secretary, Department of Family and Community Services and Fowler [1999] AATA 659, wherein the Deputy President stated (inter alia) at paragraphs 27 and 28:

    "27.     … Obviously, not every claim of non-receipt will automatically amount to a reasonable excuse – each case will depend on its own particular circumstances. …

    28.      If there was no evidence from the respondent or if her evidence was not accepted, then clearly the conclusion would be that there was no reasonable excuse. Equally, if she had checked her mail infrequently or her system of mail retrieval was unreliable, there would be no reasonable excuse.  But where a person has done all that they can reasonably be expected to ensure that mail delivered to their address and intended for their attention is brought to their attention but did not become consciously aware of a 658 notice and hence, through no fault of their own, was unable to comply with a requirement made of them under that section, it must, as a matter of fairness, constitute a reasonable excuse of the purposes of s631. …"

14. This Tribunal concurs with the Deputy President's approach, but has reached a different conclusion in this case, as it is clearly distinguished on its facts from Re Fowler.  There was no direct evidence from the respondent before the Tribunal.  What it does have is a history contained in the documentary records that prior to July 1999, she had spoken on at least three occasions with the Department concerning her mail problems.  On 29 April 1999 she had been told (inter alia) (T16/45):

    "… told her that it's her responsibility to make sure she gets her mail and that this wouldn't be a reason for us to revoke breach."

15. On 4 May 1999 (T16/45) she was told (inter alia):

    "… Told customer she has now also missed appt on 3.5.99.  Sent her to Drake to arrange new appt.  Have advised that breach will be revoked this occasion but that she must maintain regular contact with Drake until her postal problems are resolved."

16. In the Tribunal's opinion, the respondent was given adequate opportunity by the Department to address her mail problems and, if that were not possible, at least keep in regular contact with Drake Jobseek.  She had been warned by the imposition and revocation of this earlier breach, of the consequences of failing to keep in regular contact to ensure she was complying with her obligations under the Act.  In the Tribunal's assessment, as at August 1999, the respondent's failure to attend an interview was a matter within her control.  Even if her mail problems continued, it is reasonable, in the circumstances of this case, to expect her to have kept in close contact with Drake Jobseek.

17. In this case, the Tribunal is further not satisfied on the evidence before it, that the respondent "has done all that they can reasonably be expected to ensure that mail delivered to their address and intended for their attention is brought to their attention" (Re Fowler at paragraph 28).  The further attachments to Exhibit A1 contain departmental records of a continuing pattern of the respondent seeking replacement forms from the Department.  It would appear from the available evidence that the respondent has an unreliable system of mail retrieval, and in accordance with Re Fowler, in such circumstances, there would be no reasonable excuse.

18. By August 1999 the circumstances which prevented the respondent from complying with the notice were reasonably foreseeable, and accordingly, sub-paragraph 601(6)(b) of the Act is also applicable.

19. For these reasons, the Tribunal considers that the respondent unreasonably delayed entering into the activity agreement and that the breach period was correctly imposed taking into account the entire history of this matter
    decision

20. Accordingly, for the reasons outlined, the Tribunal sets aside the decision under review, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, and in substitution therefor, reinstates the delegate's decision of 30 August 1999.