Stafford and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1076

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1076

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2181

GENERAL ADMINISTRATIVE   DIVISION		)
Re		JOHN STAFFORD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member   

Date28 November 2008

PlacePerth

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal under review being the decision dated 12 April 2007 and finds that under section 626(2)(b) of the Social Security Act 1991 (“the Act”) subsection 626(1) of the Act should not apply to the applicant’s Newstart participation failure.

......(sgd) Mr A Sweidan ..........

Senior Member

CATCHWORDS

Social Security Newstart Allowance – Newstart participation failure – reasons why sub-section (1) of section 626 should not apply to Newstart participation failure - applicant given incorrect information by job network provider and not told why he was required to enter into new agreement – applicant’s numerous requests for information unanswered by Centrelink and job network provider – finding that subsection 626(1) should not apply in relation to failure for reasons found by Tribunal – decision under review set aside         

LEGISLATION

Social Security Act 1991, ss 624 (10(a), 626(1), ss 626(2)(b)

REASONS FOR DECISION

28 November 2008 A Sweidan, Senior Member          

1.      This application was previously heard by the Tribunal and a decision was handed down on 2 April 2008. That decision affirmed a decision of the Social Security Appeals Tribunal made on 12 April 2007 which in turn affirmed a decision made by a Centrelink Authorised Review Officer on 20 February 2007 that Newstart Allowance was not payable to Mr Stafford the applicant due to Newstart participation failure.

2.      Written reasons for decision were handed down by the Tribunal on 24 April 2008. The relevant facts are set out in that decision – Stafford v Secretary, DEWR [2008] AATA 1057.

3. The applicant appealed to the Federal Court against the Tribunal’s decision. On 31 July 2008 under the terms of a Consent Order the Federal Court ordered that the appeal be allowed and that the matter be remitted to the Tribunal for redetermination according to law and having regard to subsection 626(2)(b) of the Social Security Act 1991 (C’th).

4.      The parties submitted a Concise Statement (the Concise Statement) to the Federal Court pursuant to Practice Note No 26 in support of a proposed minute of Consent Orders prior to the Court making the orders referred to above. That statement reads as follows:   

The parties propose that an order be made by consent allowing the applicant’s appeal. The following statement sets out the error of law the parties submit justifies the making of the proposed order:

1On 2 April 2008, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed a decision made by Centrelink that the applicant has committed Newstart participation failures by failing to attend appointments which his job network member on 9 and 15 November 2006, and therefore was subject to a Newstart participation failure non-payment period.

2         The issues the Tribunal was required to consider were:

2.1whether the applicant committed a Newstart participation failure, pursuant to subsection 624(1)(a) of the Social Security Act 1991 (“the Act”), by failing to attend the appointments on 9 and 15 November 2006;

2.2if so, whether he had a “reasonable excuse”, pursuant to subsection 624(2) of the Act (and having regard to the Social Security (Reasonable Excuse) (DEWR) Determination) 2006, for the Newstart participation failure; and

2.3If not, whether he was subject to a Newstart participation failure non-payment period, pursuant to section 626 of the Act.

3 Section 626 of the Act provides:

(1)A Newstart Allowance is not payable to a person, for the period starting in accordance with section 627 and ending in accordance with section 628, if;

(a)the person commits a Newstart participation failure; and

(b)the Secretary requires the person:

(i)to comply with the requirement, or undertake the activity, to which the Newstart participation failure relates; or

(ii)to comply with the requirement, or undertake a particular activity, to which the Newstart participation failure relates;                   

during the participation failure instalment period for the failure, or at a particular time during that period; and

(c)       the person fails to comply with the requirement.

However, paragraphs (b) and (c) do not apply to a failure to comply with the Newstart participation failure of a kind referred to in paragraph 624(1)(h), (i) or (j).

(2)      This section does not apply in relation to the failure if:

(a)the Secretary is satisfied that the person has a reasonable excuse for the failure referred to in paragraph (1)(c); or

(b)the Secretary is for any other reason satisfied that subsection (1) should not apply to the failure.                   

4.By his substituted notice of appeal dated 8 July 2008, the applicant alleges that the Tribunal erred in law in that, having found that the applicant did not have a reasonable excuse for Newstart participation failure within the meaning of section 626(2)(a) of the Act, the Tribunal failed to consider the further matter under section 626(2)(b) thereof, namely whether it was for any reason satisfied that section 626(1) should not apply to the applicant’s Newstart participation failure.

5.The respondent agrees that the Tribunal did not consider the matter required to be considered under section 626(2)(b) of the Act, that the Tribunal thereby erred as the applicant contends, and that the Tribunal’s error was an error of law.

6.Accordingly, the respondent concedes the appeal and agrees that the matter should be remitted to the Tribunal for redetermination according to law and having regard to section 626(2)(b) of the Act.  

5. In it’s decision of 2 April 2008 the Tribunal found that the applicant did not have a reasonable excuse for his Newstart participation failure within the meaning of section 626(2)(a) of the Act. As part of the redetermination of this matter the Tribunal has again concluded that the applicant did not have a reasonable excuse for the Newstart participation failure, for the reasons stated in the Tribunal’s written reasons for decision dated 24 April 2008.

6. However, as noted in the Concise Statement the Tribunal did not earlier consider whether it was for any other reason satisfied that section 626(1) of the Act should not apply to the applicant’s Newstart participation failure, as required under section 626(2)(b).

7.      At the Resumed Hearing before the Tribunal on 28 October 2008 the applicant Mr Stafford gave further evidence and made submissions to the Tribunal.

8.      In the Tribunal’s opinion that evidence, taken together with the applicant’s earlier evidence and the submissions of the applicant establishes the following:

8.1It is not nor has it ever been the position of the respondent that the applicant was at the relevant time “on the wrong contract” despite the job network provider, PVS Workfind (PVS) having so informed him.       

8.2 The applicant was very concerned about what he was told by PVS. He took the initiative and made numerous and vigorous attempts to confirm with senior staff at Centrelink that he was on the correct contract, and also to obtain clarification from PVS.

8.3This is confirmed by the documentation in the applicant’s Centrelink file including correspondence from the applicant confirming numerous telephone calls to Centrelink and PVS.

8.4Centrelink and PVS did not initially respond to the requests from the applicant to clarify the information that he had been given by PVS that he was “on the wrong contract” and to tell him what contract he should be on, or how that would differ from his existing contract (Newstart Activity Agreement). This continued until the applicant sought help from the office of his local Federal Member.

8.5The applicant was subsequently given conflicting and contradictory information by PVS as to whether or not he was on the correct contract, notwithstanding that he had been told by Centrelink that it was the correct contract.      

9. In these circumstances the Tribunal is of the view that although the applicant’s actions in failing to attend two appointments with PVS were not actions for which he had a reasonable excuse, nevertheless the Tribunal should have regard to the background to this matter as set out above, and that when regard is had to these circumstances they are such that they constitute other reasons which should have satisfied the Secretary and which now satisfy the Tribunal, standing in the shoes of the decision maker, that section 626(1) should not apply to the applicant’s Newstart participation failure.

Decision

10. The Tribunal accordingly sets aside the decision of the Social Security Appeals Tribunal dated 12 April 2007 as the Tribunal is satisfied that, for the reasons stated above, pursuant to section 626(2)(b), section 626(1) of the Act should not apply to the applicants Newstart participation failure in this instance.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of A Sweiden, Senior Member.

Signed: .......(sgd) T Freeman ..............
  Associate

Date/s of Hearing  28 October 2008
Date of Decision  28 November 2008
Applicant  Self represented 
Respondent Representative     Ms C Wallwork    

Centrelink Legal Services