Tanious and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1615

Tanious and Secretary, Department of Social Services (Social services second review) [2017] AATA 1615 (3 October 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0791

Re:Mofeed Tanious

APPLICANT

Secretary,And  Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:3 October 2017

Place:Sydney

The decision under review is affirmed.

.......................[sgd]............................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – mutual obligation requirement – Newstart Employment Pathway Plan (Job Plan) – failure to enter a Job Plan – disagreement with terms of Job Plan – connection failure – whether reasonable excuse for the failure – eight week non-payment period – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 593, 605 and 606

Social Security (Administration) Act 1999 (Cth) ss 42E, 42M, 42P, 42Q and 42U

CASES

Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268

SECONDARY MATERIALS

Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1)

Social Security (Administration) (Persistent Non-Compliance)(Employment) Determination 2015 (No. 1)

REASONS FOR DECISION

Senior Member A Poljak

3 October 2017

1. The applicant, Mr Mofeed Tanious, has been in receipt of Newstart allowance since 25 September 2011.

2. On 30 August 2016, the Department of Human Services (“the Department”) sent a letter to the applicant advising him that his newstart allowance payments had stopped for eight weeks from 3 September 2016 because he had persistently failed to meet his mutual obligation requirements (“the original decision”). The applicant sought review of the original decision and during the review period, the applicant’s newstart payments continued.

3. The original decision was affirmed by an authorised review officer (“ARO”) on 23 September 2016 and the applicant was notified on 26 September 2016 that his newstart allowance payment would stop for an eight week period from 1 October 2016 to 25 November 2016 (“eight week non-payment period”).

4. On 1 February 2017, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) affirmed the decision of the ARO to apply the eight week non-payment period to the applicant’s newstart allowance because he persistently failed to meet his mutual obligation requirements. This is the decision under review in these proceedings.

5. The issues to be determined in these proceedings are whether the applicant:

   (a)failed to enter into a Newstart Employment Pathway Plan (“Job Plan”); and if so

   (b)is subject to a newstart allowance eight week non-payment period.

   BACKGROUND

6. On 1 August 2016, the applicant was required to enter into a Job Plan. The applicant did not enter into a Job Plan. As a result, the job service provider prepared a Participation Report - Failure to enter into/vary Job Plan/EPP which notes:

   JS [jobseeker] is refusing to complete his aar [agreed activity required-WFD] of 15 hours- would like to do 8-1 each day and not the required hours of 9-5. As good will I gave JS all weekend to look over and sign and the latest today. He had another appointment today in which he was to sign off on the job plan. The appointment was at 2.30. At 2.26 I received an email stating he will come in on Friday. JS was aware that the plan had to be signed by today.
   …
   I gave JS cool off period on Friday until Monday 2.30 advised next appointment. He emailed through at 2.23 to try and get his hours lower…

7. On 3 August 2016, the Department sent the applicant a letter which stated:

   Our records show that you did not enter into a Job Plan on 1 August 2016. After careful consideration, a decision has been made that you do not have a reasonable excuse for your actions and you have not met one of the conditions for receiving your payment.

   You are still required to attend an appointment with us and agree to a Job Plan.

8. On 3 August 2016, the applicant was required to enter into a Job Plan. The Participation Report - Failure to enter into/vary Job Plan/EPP created on 3 August 2016, records:

   JOB SEEKER IS REFUSING TO ENTER INTO PLAN… He would like to negotiate less hours and believes travel should be included… Thursday JS wouldn’t sign. Rebooked on Friday, still refused so gave an extra 48 to check over. Still refusing.

9. On 8 August 2016, the Department sent the applicant a letter which stated:

   Our records show that you did not enter into a Job Plan on 3 August 2016. After careful consideration, a decision has been made that you do not have a reasonable excuse for your actions and you have not met one of the conditions for receiving your payment.

   These decisions have been made under Social Security law.

10. On 18 August 2016, the applicant was provided a third opportunity to enter into a Job Plan, but refused. A Participation Report - Failure to enter into/vary Job Plan/EPP was created, and records:

    Job seeker objects to 15 hours per week work for the dole (wfd12). WFD requirement is 15 hours a week this is reasonable as it is calculated by the activity calculator for the job seeker’s age. Jobseeker stated that he wants his travel time included in his WFD hours. I advised job seeker that this is not within WFD guidelines. 20 job search contracts per month is within the mutual obligation guidelines. Once a week on site job search is within the mutual obligation guidelines…

    Job seeker refuses to participate in 15 hours per week work for the dole.

    Job seeker has had 2 weeks of thinking time and 2 failures applied for failure to enter into this job plan.

    RELEVANT LEGISLATIVE PROVISIONS

11. Section 593 of the Social Security Act 1991 (Cth) (“the Act”) specifies the requirements that an applicant must satisfy in order to qualify for newstart allowance. In summary, it provides that a person qualifies for newstart allowance if the person is unemployed, satisfies the activity test and if the person is required by the Secretary to enter into a Job Plan, the person enters into such Job Plan.

12. Relevantly, s 593(1) of the Act provides:

    …

    (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…(Emphasis added)

13. Section 605(1)(a) of the Act allows the Secretary to require a person to enter into a Job Plan if “the person is receiving, or has made a claim for, a newstart allowance”. Section 605(3) provides:

    (3)  The Secretary is to give a person who is required to enter into a Newstart Employment Pathway Plan notice of:

    (a)  the requirement; and

    (b)  the places and times at which the plan is to be negotiated.

14. 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 Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). Section 42E(4)(a) of the Administration Act provides that “the Secretary must not determine that a person commits a connection failure if the person satisfies the Secretary that the person has a reasonable excuse for the failure”.

15. Section 42U of the Administration Act requires the Secretary, by legislative instrument, to determine those matters that should be taken into account in deciding whether a person has a reasonable excuse for committing the failure. The relevant legislative instrument is the Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 20009 (No. 1) (“the Reasonable Excuse Determination”). None of the matters contained in the Reasonable Excuse Determination apply in this case.

16. Pursuant to s 606 of the Act, a Job Plan is to contain one or more terms that the person is required to comply with and the Secretary regards as suitable for the person. The requirements in a plan are to be approved by the Secretary: s 606(2).

17. The Secretary may determine that a person commits a serious failure if the Secretary is satisfied the person has persistently failed to comply with his or her obligations: s 42M of the Administration Act. Section 42M(2) provides that “when determining whether a person commits a serious failure under subsection (1): (a) the Secretary must not take into account failures that were outside the person’s control; and (b) the Secretary may only take into account any other failures that occurred intentionally, recklessly or negligently”. Pursuant to subsections (4) and (5), matters which must be taken into account in determining whether persistent non-compliance has occurred are set out in the Social Security (Administration) (Persistent Non-compliance) (Employment) Determination 2015 (No.1).

18. Section 42P of the Administration Act provides that the participation payment is not payable during a serious failure period. A person’s serious failure period begins on the first day of the first instalment period that begins after the day the Secretary makes the determination; and ends if the Secretary ends the person’s serious failure period under section 42Q—on the day mentioned in that section; or otherwise—8 weeks after the period begins. In this case, the Department’s records show that the applicant self-served the non-payment period from 1 October 2016 to 20 November 2016.

    CONSIDERATION

19. The applicant is an overseas trained general practitioner and appears to be in the process of obtaining his registration to work as a doctor in Australia. He has had Australian citizenship since 2008 and has been in receipt of Newstart allowance since 25 September 2011.

20. In written submissions dated 11 September 2016, the applicant states that he regularly searches for any jobs in his field and attends all Centrelink appointments. He says that in addition to looking for work he does his “best in order to have experience in the field of poultry farming through keeping some birds at home, incubating their eggs, and regularly sale the outcome in the poultry auction. Such a work has been enjoyable for me since I was a child. The income I have had from such a work no more than $100 every two weeks”. At hearing the applicant confirmed that his poultry farming was a business and that he had an ABN but also said that it was “sort of a hobby”. He advised that he undertakes at least 4 hours every day and 7 hours on weekends working in his business but his business does not make a profit. The applicant provided his ABN to Centrelink in February 2017.

21. The applicant did not enter into a Job Plan when he was required to on 1 August 2016, 3 August 2016 and 18 August 2016. The applicant has expressed his reasons for not entering the Job Plans in various documents that are before the Tribunal and in his oral evidence to this Tribunal and before the SSCSD.

22. In summary, the applicant’s evidence is that he refused to sign the Job Plan because he did not agree with the assessment of his dole requirements, in particular his activity requirements. In August 2016, the applicant commenced with the job provider Advanced Personal Management (“APM”). The applicant’s evidence is that he was offered a Job Plan to do activity from 1 August 2016. The Job Plan had 5 points which were compulsory for the applicant to sign, 3 of which he says that he accepted. The Job Plan outlined the agreed activity required as either two days a week from 9:00am to 5:00pm or three days a week from 9:00am to 1:00pm. The applicant did not agree with this requirement and says that he would accept to do two days a week from 9:00am to 1:00pm.

23. At hearing he said that it takes him 1 hour each way to travel to the Centrelink Office. The applicant said he would like his travel time taken into consideration and has referred in his written submissions to subsections 601(2AAB) and (2AA)(i) of the Act in support. The sections of the legislation to which the applicant refers do not apply in this matter.

24. In this matter, there is no evidence before me that any of the matters outlined in the Reasonable Excuse Determination were relevant between 1 August 2016 and 18 August 2016. The applicant said that he did not sign the Job Plan on 1 August 2016, 3 August 2016 and 18 August 2016, because he believed that the terms of the Job Plan were to be negotiated.

25. While the applicant has said that he was trying to negotiate a plan that better suited his needs, there is limited flexibility for the applicant to negotiate the terms of a Job Plan. This is plain from section 606 of the Act which states that a person is required to comply with the terms of an Employment Pathway Plan (Job Plan) that the Secretary regards as suitable (Emphasis added).

26. Further, in Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268 at [38]-[39] the Federal Court stated the following about what is meant by the term “negotiate” in s 605(3) of the Act in the statutory context:

    [38] Central to this trio is Mr Kronen’s conception of what is signified by the words “to be negotiated” in s 605(3).  What is clear is that the level of permissible compromise and of required mutual agreement that this formula might otherwise suggest when used in other contexts, is radically curtailed in this statutory setting.  Whether one can say that the ordinary meaning of “negotiate” is what is intended here (albeit what can be negotiated is limited by the Act and its purposes), hence the meaning is a question of fact:  Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (proposition 2);  or that its meaning and hence proper construction is contrived by its legislative settings, hence are questions of law:  Pozzolanic, 287 (propositions 1 and 4), what is clear is that Mr Kronen misapprehends the latitude the Act gives him.  Elblematic (sic) of this was his presenting Maxima with negotiation procedures which included referral to an independent panel if any terms could not be agreed. 

    [39] If Mr Kronen is to qualify for a newstart allowance, he was required, in the circumstances, enter into an activity agreement: s 593(1)(e); he was required to undertake one or more activities that the Secretary regarded as suitable for the person: s 606(1); the terms of the agreement were to be approved by the Secretary. In this scheme, the “right to negotiate” could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions or actions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement.

27. The applicant has been on Newstart since September 2011 and has been unable to find work for a considerable period of time. There is nothing in the evidence to support a finding that a delegate of the Secretary acted unreasonably in requiring the applicant to enter into a Job Plan, and the requirements of that plan on 1 August 2016, 3 August 2016 and 18 August 2016.

28. Having regard to all of the evidence, I am satisfied that the applicant failed to enter into a Job Plan without a reasonable excuse. Therefore the non-payment period of eight weeks was correctly imposed in accordance with section 42P of the Administration Act.

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[sgd].........................................

Associate

Dated: 3 October 2017

Date(s) of hearing:	18 July 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services