Sommer; Department of Family and Community Services

[2000] AATA 801

DECISION AND REASONS FOR DECISION [2000] AATA 801

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S99/371

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND  COMMUNITY SERVICES     
  Applicant
           And    BENJAMIN SOMMER      
  Respondent

DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE    

Date11 September 2000

PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that the decision of the delegate of the applicant be reinstated.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – Newstart Activity Agreement – failure to attend interviews – problems with mail – recklessness considered – failure to take appropriate remedial steps
Acts Interpretation Act 1901
Re Carlyle and Department, Employment, Education, Training and Youth Affairs (AAT 12306, 17 October 1997)
Re Geeves and Secretary, Department of Social Security (1996) 41 ALD 467

REASONS FOR DECISION

11 September 2000   Senior Member J.A. Kiosoglous MBE                    

1. This is an application by the Secretary, Department of Family and Community Services (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 29 July 1999 (T2) which set aside a decision of an authorised review officer (ARO) dated 14 May 1999 (T24) which had affirmed a decision of a delegate of the applicant dated 12 April 1999 (T16) to impose an activity test breach carrying a penalty of an eight week loss of Newstart Allowance.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T28), together with one exhibit, lodged by the applicant (Exhibit A1). In addition, the Tribunal heard evidence from the respondent, Mr B. Sommer, who represented himself. The applicant was represented by Mr J. Underwood, a departmental advocate.

3. The issue before the Tribunal is whether or not the respondent unreasonably delayed entering into a Newstart Activity Agreement.
   history of the application

4. The Tribunal notes the lengthy history of this matter, but for the purposes of this decision, sets out the facts briefly as follows.

5. The respondent is twenty years of age and single.  On 18 August 1998 (T3), 14 September 1998 (T4), 12 October 1998 (T5) and 29 October 1998 (T6) he was requested to attend interviews with the applicant on various specified (and rescheduled) dates, but failed to do so, resulting in an activity test breach being imposed on 27 November 1998 (T8).

6. Subsequently, the respondent obtained work between 17 December 1998 and 25 February 1999 (T14) and failed to inform the applicant about the income from this work, resulting in the imposition of a second activity test breach on 17 March 1999 (T13).

7. The respondent was sent a letter dated 21 January 1999 (T11) requesting attendance at an interview with the applicant.  He failed to attend this interview, and was sent a further letter dated 9 March 1999 advising of a rescheduled interview for 25 March 1999 (T12), which he again failed to attend.

8. On 12 April 1999 the applicant imposed a third activity test breach for failure to attend the scheduled interviews (T16), a decision affirmed by an ARO.  The SSAT set aside the decision to impose a third breach, stating (inter alia) in its reasons for decision:

   "…
   Although the Tribunal was unable to locate the letter dated either 8 or 9 March 1999, the Tribunal has accepted that such a notice was likely to have been posted and, pursuant to the relevant provisions of the Act's Interpretation Act is likely to have been delivered within the normal course of post.
   …
   In this case although the Tribunal has accepted that the relevant letter was posted and was likely to have been delivered, the Tribunal has also accepted Mr Sommer's evidence that his mail had often been tampered with and that the relevant letter did not come to his hand, through no significant fault of his own.  Consequently he was not aware that he was required to attend an interview on 25 March 1999.
   In the light of the abovementioned circumstances the Tribunal accepts that Mr Sommer did not unreasonably delay entering into a newstart activity agreement and therefore did not fail to enter such an agreement.
   …"

applicant's submissions

1. Mr Underwood submitted, on behalf of the applicant, that the respondent has shown a history of unwillingness to enter into a Newstart Activity Agreement.  He further submitted that even if the respondent had trouble with his mail, he did not take steps to secure it, advise the applicant of his problems or ensure that he received advice about interviews which he knew would be forthcoming.

2. He submitted that the repeated failures of the respondent to attend interviews indicated an unreasonable delay in entering an agreement.

3. Regarding the respondent's evidence as to finding various letters and informing the Department accordingly, he submitted that the story was not credible as there was no corroborating evidence of contact, and that the story was self-serving.
   respondent's evidence and submissions

4. The respondent told the Tribunal that he did not receive the last letter notifying of the interview time.  He stated that he notified his landlord about mail problems and gave the applicant his mother's address as a forwarding address if he was not receiving mail.

5. He could not say which letters he did nor did not receive, but stated that on one or two occasions he found letters addressed to him in the backyard of the first unit (out of a block of five, of which his is the fifth).  He considered that about three to four weeks prior to being breached, he found such a letter, realised he had missed an appointment and informed the Department.

6. He told the Tribunal that once he had contacted the Department about the missed appointment, he considered that they would act on the advice he had given them about his missing mail.  He stated that when he saw the second letter in the backyard, he did not contact the Department because he thought the Department would change the system.
   discussion and findings

7. The Tribunal is satisfied that the applicant posted the relevant notices dated 21 January 1999 (T11) and 9 March 1999 (T12) and, pursuant to the Acts Interpretation Act 1901, the Tribunal finds that such were received by the respondent.

8. The respondent's contention is that his mail was being interfered with and that he did not actually receive letters at that time.  He told the Tribunal that he had found several of his letters in the backyard of another unit, and that he had contacted the Department accordingly.  The Tribunal did not find the respondent to be an impressive witness.  When pressed by Mr Underwood, it was clear that the timing of events, as alleged by the respondent, could not in fact have been the case.

9. This Tribunal considers that the SSAT placed too much reliance on the fact (as it found to be the case) that the respondent did not, apparently, get an opportunity to read the letter dated 9 March 1999 (T12).  In this case, one must take into account the history of non-attendance by the respondent.  Significantly, subsequent to the second breach, he received a letter dated 21 January 1999 (T11) alerting him to an interview in February, but he did not attend that interview.  It is reasonable to conclude that the respondent must (or ought to) have known, given his history and previous breaches, that mail would be forthcoming about attending an interview to discuss entering into an agreement.  He knew that the Department was attempting to contact him, and even if he was having mail problems, the Tribunal is not satisfied that he took adequate steps to try and contact the Department or alert it to his problems.  Even if his story is accepted, he located at least two letters advising that he was required to attend Employment National Limited for an interview, and in response, he only apparently contacted the Department's Gawler office about getting a duplicate form, not in relation to the interviews.  There is no evidence that he attempted to contact Employment National Limited directly during the period relevant to this breach, following receipt of the letters.

10. In that regard, the Tribunal is mindful of Senior Member Purcell's comments in Re Carlyle and Department, Employment, Education, Training and Youth Affairs (AAT 12306, 17 October 1997), a case which is comparable to the present, due to the fact that similar problems with the mail were asserted.  The Senior Member stated (inter alia) at paragraph 17:

    "In my view the applicant did not take any, or sufficient action to secure his mail, nor did he advise the Department of the difficulty he was experiencing with his mail.  He may well have been preoccupied with his disagreement with his flat mate and with his relationship with his now, defacto spouse; but for whatever reason, he was reckless or indifferent to the requirement to enter into a Management Agreement.  I am satisfied that his failure to attend the interviews was indicative of unreasonable delay in entering into a Management Agreement. …"

1. In this case, the respondent was in a position whereby he had much less to be concerned about than the applicant in Re Carlyle, but yet he still failed to make reasonable attempts to keep in touch with the Department or his Job Network member.  There is sufficient recklessness in this case so as to satisfy the "mental element" contemplated by Deputy President Blow in Re Geeves and Secretary, Department of Social Security (1996) 41 ALD 467. The Tribunal considers that the respondent unreasonably delayed entering into the Newstart Activity Agreement, and that the breach was therefore correctly imposed.
   decision

2. For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that the decision of the delegate of the applicant be reinstated.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing  24 August 2000
Date of Decision  11 September 2000
Counsel for the Applicant        Mr J. Underwood
Solicitor for the Applicant         Centrelink
Counsel for the Respondent    In person
Solicitor for the Respondent    -