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

TBWY and Secretary, Department of Social Services (Social services second review) [2023] AATA 654 (27 March 2023)
Division:GENERAL DIVISION
File Number:2022/3000
Re:TBWY
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member Andrew McLean Williams
Date27 March 2023
Place:Brisbane

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 2 March 2022 is affirmed.
..............................[SGD]....................................
Member Andrew McLean Williams
CATCHWORDS
SOCIAL SECURITY – Applicant Jobseeker Payment – Payment Cancelled – Review of Decision of SSCSD Member – Decision affirmed that of SDSS Delegate – Whether Applicant Payment should have been cancelled due to failure to comply with requirement – STEPS – Mutual Obligation Requirements – Voluntary Requirements – Compulsory Requirements – Reconnection requirement – Insufficient evidence to demonstrate reconnection – Applicant failure to comply with a Mutual Obligation Requirement – Jobseeker Payment correctly suspended – Does not satisfy exemption – Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
SUBORDINATE MATERIAL
Social Security (Administration) (Reasonable Excuse – Participation Payments) Determination 2018
REASONS FOR DECISION
Member Andrew McLean Williams
27 March 2023
INTRODUCTION

By an Application for Second Review of [a] Decision, filed before the Tribunal on

8 April 2022,[1] TBWY (‘the Applicant’) seeks a review of a decision made by Member Strathearn in the Social Services and Child Support Division (‘SSCSD’) of the Tribunal, as was made on 2 March 2022.[2] This decision affirmed a prior decision,[3] made on 7 December 2021 by an Authorised Review Officer (‘ARO’) as a Delegate of the Secretary of the Department of Social Services, wherein the ARO had determined that a decision made on
16 November 2020 to cancel the Applicant’s jobseeker payment (‘JSP’) should remain unchanged, by reason of the Applicant not meeting her ‘reconnection requirement’.
[1] T Documents filed 11 May 2022 (T Docs 11.05.22), T1.
[2] T2, pp.8-12.
[3] T10, pp.79-84.
Issues before the Tribunal
On the hearing of this review, the issue to be determined is whether the Applicant’s JSP should have been cancelled on 16 November 2020, due to her failure to comply with a reconnection requirement.
FACTUAL BACKGROUND
TBWY, a female born on 6 March 1981, commenced receipt of Newstart Allowance on

6 March 2002, and thereafter remained on Newstart Allowance (with various periods of suspension and cancellation), until she was transferred to JSP, on

20 March 2020.
On 24 January 2020, a Jobseeker Employment Pathway Plan (‘the Job plan’) was signed by the Applicant and her Disability Employment Services Provider, STEPS Group Australia Ltd (‘STEPS’). Pursuant to the Job plan, the Applicant was obligated to comply with ‘compulsory’ Mutual Obligation Requirements (items (a) – (f), immediately below) and ‘voluntary’ Mutual Obligation Requirement, item (g), below:
(a)Attend fortnightly appointments with STEPS;
(b)Attend job interviews and do other preparatory activities, as directed by STEPS;
(c)Attend appointments with third party organisations as required, as notified to her by STEPS;
(d)Follow-up on any job referrals or employment opportunities that may lead to paid employment for the Applicant, as notified to her by STEPS;
(e)Undertake 30 hours per fortnight of self-employment from 24 January 2020 until 25 July 2020, and report her earnings to STEPS;
(f)Continue to work at building and growing her business for self-employment purposes from 24 January 2020 until 25 July 2020; and
(g)Undertake a health maintenance program, to manage her medical condition from 24 January 2020 until 25 April 2020.
The preamble to the Job plan, expressed in the text appearing immediately above the Mutual Obligation Requirements signed by the Applicant, included the following acknowledgement:
‘…I understand that if I don’t comply with my mutual obligation requirements, including those set out in the items marked as compulsory below, my income support payments will be suspended. If I persistently fail to comply with my requirements, I understand my income support payments may be reduced or cancelled.’
Job plans remain current until such time as these are revoked, when another Job plan is signed. Although a mutual obligation requirement may express a defined duration (such as those instanced in (e), (f), & (g) above, mutual obligations that express no defined date range are ongoing obligations, at least until such time as another Job plan is signed.
Between 21 February 2020 and 7 October 2020, the Applicant either rescheduled or failed to attend 26 appointments at STEPS. On 16 October 2020 the Applicant again did not attend a scheduled appointment at STEPS. This missed appointment, in particular, became the trigger for the Applicant being suspended from JSP because of non-compliance with a mutual obligation requirement.
To this end, on 16 October 2020, the Agency issued the Applicant with a notice pursuant to section 42AM of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’). The notice advised the Applicant that her JSP had been stopped because she had not attended the appointment on 16 October 2020, and set out the necessary reconnection requirement: to call STEPS as soon as possible to discuss the reasons why she did not attend the 16 October 2020 appointment, and to receive more information on what she now needed to do, in order to have her payment re-started.[4]
[4] Respondent’s Statement of Facts, Issues and Contentions (‘Respondent SFIC’) dated 26 September 2022, [12]. Citing T Docs 11.05.22, T5, p.67).
On 29 October 2020, the Applicant sent a text message to STEPS stating:
“Hi Fran. Im reengaging with you to reinstate my payment. Im busy with my company and will let you know if I require any further assistance. Email or sms is best communication for now. Thanks. [TBWY]”[5]
[5] Ibid, [13]. Citing T Docs 11.05.22, T7, p.76.
On the same date as the text message, STEPS scheduled another in-person appointment for the Applicant, for 10 November 2022, at 10:00am.[6]
[6] Ibid, n4, [14]. Citing T Docs 11.05.22, T13, p.96, Attachment E.
On 10 November 2020, the Applicant did not attend the scheduled appointment with STEPS, without a valid reason.[7]
[7] Ibid, [15]. Citing T Docs 11.05.22, T13, p.96, Attachment E.
On 16 November 2020, the Agency decided to cancel the Applicant’s JSP from that date.[8] The decision stated:
“You were asked to go to a new appointment or start doing an activity so you could meet the requirements for receiving your payment again.
As you have not done this, and it has been more than four weeks since you were asked to do this, it has been decided that you are not meeting the requirements of your payment. This means your JobSeeker Payment has been cancelled from 16 November 2020.
This is a decision under social security law.
If you want to receive JobSeeker Payment again, it is important that you call us as soon as possible to reduce the impact on your payment.
You will need to make a new claim and meet the requirements of your payment before we can pay you.”
[8] Ibid, n4, [16]. Citing T Docs 11.05.22, T6, p.69.
On 10 December 2020, the Applicant contacted the Agency and requested review of the decision to cancel her JSP. File notes taken by the Agency indicate that the Applicant made that request on the following basis:[9]
“CUS [customer] has requested a review of SUS [suspension] and CAN [cancellation] of JSP. CUS has stated she was homeschooling child and when contacted provider was advised had to search for work.”
[9] Ibid, [17]. Citing T Docs 11.05.22, T14, p.101.
On 10 December 2020, the Agency affirmed the decision to cancel the Applicant’s JSP.[10]
[10] Ibid, n4, [18]. Citing T Docs 11.05.22, T14, p.102.
On 11 November 2021, ‘Basic Rights Queensland’, then acting on behalf the Applicant, requested a further review of the decision to cancel the Applicant’s JSP.[11]
[11] Ibid, [19]. Citing T Docs 11.05.22, T14, p.103.
On 7 December 2021, an ARO affirmed the decision to cancel the Applicant’s JSP.[12] (T10/79). The ARO found:
“You were required to attend an appointment with STEPS Employment Solutions Gympie on 16 October 2020. You did not attend this appointment.
When you fail to attend an appointment with an Employment Service Provider you are required to reconnect with them within 28 calendar days, otherwise your JobSeeker Payment would be cancelled.
On 16 October 2020, we notified you to call your Employment Service Provider as soon as possible.
I acknowledge that you contacted STEPS Employment Solutions Gympie via text message on 29 October 2020 regarding having your JobSeeker Payment reinstated. On this day, you were booked an appointment for 10 November 2020. You did not attend this appointment.
You did not reconnect with STEPS Employment Solutions Gympie within 28 calendar days. Therefore, your JobSeeker Payment was correctly cancelled on 16 November 2020.”
[12] Ibid, n20, [20]. Citing T Docs 11.05.22, T10, p.79.
On 20 December 2021, the Applicant applied to the SSCSD for review of the ARO decision, on the following basis:[13]
“I was home schooling my child when they cancelled my payment.”
[13] Ibid, [21]. Citing T Docs 11.05.22, T11, p.85.
On 7 February 2022, the Applicant provided the following additional evidence to the SSCSD[14]:
a.    Letter from Dr Jane Goodward (General Practitioner) dated 30 March 2021, stating (T2/16):
“Ben has been known to this General Practice since he was a baby. He has had some challenges over his short life time, and in recent years with anxiety and school refusal. He has been improving however and I'd be grateful if his school team could be flexible in his learning program. He does sometimes need to work from home. He applies himself better with hands on subjects and hopefully he can be supported in pursuing some sort of traineeship in the future.”
b.    Employment Services Assessment Report dated 19 December 2018, recommending referral to a DES – Employment Support Service (T2/17);
c.     Letter from Andrea Jurewicz (Social Worker at Community Action Inc), stating the Applicant had actively engaged with the Domestic and Family Violence Service for support and therapy due to the domestic violence she experienced, attending counselling from July 2018 to October 2019 (21 sessions) for trauma related issues (T2/19);
d.    Letter from STEPS to the Applicant, advising of an appointment on 13 December 2019 (T2/20); and
e.    Centrelink Feedback History which records the Applicant’s complaints to the Agency (T2/22).
[14] Ibid, n4, [22].
The SSCSD hearing before Member Strathearn was scheduled for 8 February 2022. The Applicant contacted the Tribunal approximately one hour before the scheduled hearing on that day and advised she was unable to attend, due to unforeseen family/caring responsibilities.[15] The Applicant was given the opportunity to provide any further submissions by 23 February 2022, prior to the SSCSD decision being made. No further submissions were forthcoming.
[15] Ibid, n4, [23]. Citing T Docs 11.05.22, T2, p.27.
In written reasons delivered on 2 March 2022, the SSCSD affirmed the decision under review.[16] Member Strathearn found that although the Applicant has provided statements and documentation of some issues regarding herself and her family, these did not relate to the specific dates of her participation in mutual obligation requirements and there was insufficient evidence that there was a reasonable excuse for her non-attendance at her appointments at STEPS on either 16 October 2020, or on 10 November 2020.
[16] Ibid, [24]. Citing T Docs 11.05.22, T2, p.8.
On 8 April 2022, the Applicant applied to the General Division of the Tribunal for review of the SSCSD decision, on the following basis:[17]
“I think the decision is wrong and a different decision should be made.”
[17] Ibid, n4, [25]. Citing T Docs 11.05.22, T1.
In an email to the Tribunal dated 22 June 2022[18], the Applicant stated:
“The main point I intended to bring to light is that the evidence provided in the Tribunal documents prepared by Services Australia suggests that the DES Provider did not comply with the 'DES Eligibility, Referral and Commencement Guidelines'. This is because there was no valid ESAt and no initial interview listed as being recorded.
Also, as I was working full time for Wholehearted Works Pty Ltd (as per fully completed forms and supporting documentation I handed my local Centrelink staff on 24.09.2019 (see T14, page 98 'CAO Ref Re-Assessment')) at the alleged time of commencement, I was ineligible for DES. Therefore, the wrong decision was made.”
[18] Ibid, [26]. Citing T Docs 11.05.22, T13, Attachment F.
On 20 July 2022, the Applicant requested the matter be heard by the Tribunal ‘on the papers’, without there being any hearing. The Respondent consented to this request.[19]
[19] Ibid, n4, [27].
On 26 September 2022, the Respondent lodged a Statement of Facts Issues and Contentions (‘SFIC’) before the Tribunal. On 17 October 2022 the Applicant lodged her Statement of Facts Issues and Contentions (SFIC), together with some further documents.
On 31 October 2022, the Respondent issued an Information Notice to STEPS pursuant to s.196 of the Social Security (Administration) Act 1999, requiring that STEPS deliver documentary records relevant to this matter. These were provided by STEPS to the Respondent on 1 December 2022 and these were subsequently filed in the Tribunal by the Respondent as a bundle, on 5 December 2022. The Tribunal had also directed that the Respondent should provide a SFIC in reply, and this was provided by the Respondent on 13 December 2022.
The Legislative Regime
The legislation relevant to the determination of this matter is to be found in:
(a)the Social Security Act 1991 (‘the Act’);
(b)the Social Security (Administration) Act 1999 (‘the Administration Act’); and
(c)the Social Security (Administration) (Reasonable Excuse – Participation Payments) Determination 2018 (‘the Determination’).
Section 593 of the Act sets out the qualification requirements for JSP and requires:
s.593 Qualification for jobseeker payment
(1)Subject to sections 596, 596A, 597 and 598, a person is qualified for a jobseeker payment in respect of a period if:
(a)the person satisfies the Secretary that:
(i)throughout the period the person is unemployed; or
(ii)subsection (1A) applies in relation to the person for the period; and
(b)throughout the period the person satisfies subsection (1AC); and
(g)throughout the period the person:
(i)is at least 22 years of age and has not reached the pension age; and
(ii)is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and
(i)the person was not in receipt of a youth allowance during the period.
Note 1:A person may be treated as unemployed (see section 595).
Note 5:For pension age see section 23.
Note 6:For Australian resident see section 7.
Note 8:A person may not be qualified if the person’s unemployment is due to industrial action (see section 596).
Note 9:A person may not be qualified if the person has reduced the person’s employment prospects by moving to an area of lower employment prospects (see section 597).
Note 12:A person could be in receipt of a youth allowance during a period for which the person would qualify for a jobseeker payment, if paragraph (i) was disregarded, because of section 540C (extension of youth allowance to end of payment period).
Note 13:A jobseeker payment is not payable in certain situations even if the person is qualified (see Subdivisions D, E and F and Part 4.2).
Note 14:A person receiving a jobseeker payment, and who receives employment services from a remote engagement program provider, may also qualify for a remote engagement program payment: see Part 2.13.
(1A)This subsection applies in relation to a person for a period if:
(a)the person is incapacitated for work or study throughout the period because of sickness or an accident; and
(b)the incapacity is caused wholly or virtually wholly by a medical condition arising from the sickness or accident; and
(c)the incapacity is, or is likely to be, of a temporary nature; and
(d)one of the following applies:
(i)immediately before the incapacity occurred the person was in employment (whether the person was self‑employed, or was employed by another person, on a full‑time, part‑time, casual or temporary basis) and the Secretary is satisfied that, when the incapacity ends, the employment will be again available to the person (whether or not the same kind of work will be available);
(ii)immediately before the incapacity occurred the person was in full‑time education and was receiving payments under the ABSTUDY scheme and the Secretary is satisfied that the person is committed to resuming full‑time study under that scheme when the incapacity ends;
(iii)immediately before the incapacity occurred the person was undertaking qualifying study and receiving austudy payment, and the Secretary is satisfied that the person is committed to resuming qualifying study when the incapacity ends.
(1AA)Subsection (1A) does not apply in relation to a person if the Secretary is satisfied that the incapacity is brought about with a view to obtaining jobseeker payment, youth allowance, austudy payment or disability support pension.
(1AB)In subsection (1A):
work, in relation to a person, means work that the person has contracted to perform under a contract of employment that:
(a)the person had immediately before the person becomes incapacitated; and
(b)continues after the person becomes incapacitated.
(1AC)A person satisfies this subsection if:
(a)the following apply:
(i)the person satisfies the employment pathway plan requirements;
(ii)the person satisfies the Employment Secretary that the person is willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person; or
(b)the following apply:
(i)the person is, under Subdivision C of Division 2A of Part 3 of the Administration Act, not required to satisfy the employment pathway plan requirements;
(ii)the person satisfies the Employment Secretary that the person would otherwise be willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person.
Note 1:For satisfies the employment pathway plan requirements, see subsection 23(1).
Note 2:See Division 2B of Part 3 of the Administration Act for the circumstances in which paid work is unsuitable to be done by a person.
(1B)Subject to sections 596, 596A, 597 and 598, a person is qualified for a jobseeker payment in respect of a period if:
(a)the person satisfies the Secretary that throughout the period the person is unemployed; and
(b)throughout the period the person:
(i)has reached the age of 22 years and has not reached the pension age; and
(ii)is an Australian resident; and
(c)the person was not in receipt of a youth allowance during the period; and
(d)the person made a claim for disability support pension at or before the start of the period and the claim was not determined before the end of the period; and
(e)the Secretary is satisfied that throughout the period the person suffered from a medical condition that had a significant adverse effect on the person’s ability to work; and
(f)the person satisfies any one of the conditions in subsection (1C).
(1C)The conditions referred to in paragraph (1B)(f) are:
(a)a condition that the person was an Australian resident when the significant adverse effect of the medical condition on the person’s ability to work first occurred; and
(b)a condition that at the start of the period the person had 10 years qualifying Australian residence or had a qualifying residence exemption for jobseeker payment; and
(c)a condition that:
(i)the person was born outside Australia; and
(ii)when the significant adverse effect of the medical condition first occurred the person was not an Australian resident but was a dependent child of an Australian resident; and
(iii)the person became an Australian resident while a dependent child of an Australian resident.
(1D)Subject to sections 596, 596A and 598, a person is qualified for a jobseeker payment, in respect of the period starting in accordance with subsection (1E) and ending in accordance with subsection (1F), if:
(a)the person satisfies the Secretary that throughout the period the person is unemployed; and
(b)throughout the period the person:
(i)has reached the age of 22 years and has not reached the pension age; and
(ii)is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and
(c)the person was not in receipt of a youth allowance during the period; and
(d)the person has made, or is taken to have made, a claim for jobseeker payment; and
(e)the person satisfies the Secretary that it is likely that the person has a permanent medical condition that would prevent the person from undertaking full‑time work; and
(f)the person satisfies the Secretary that it would be unreasonable to expect the person to enter into an employment pathway plan until an assessment of the person’s capacity to work has been undertaken.
(1E)The period for which the person is qualified for a jobseeker payment under subsection (1D) starts:
(a)if the person is already receiving jobseeker payment when the Secretary becomes aware of the medical condition referred to in paragraph (1D)(e)—when the Secretary becomes aware of the medical condition; or
(b)otherwise—when the person made, or is taken to have made, the claim for jobseeker payment.
(1F)The period for which the person is qualified for a jobseeker payment under subsection (1D) ends:
(a)if the person has failed to comply with a requirement to enter into an employment pathway plan—on the day on which the person so failed; or
(b)in any other case—when the person enters into an employment pathway plan.
(4)If:
(a)a person was receiving a social security pension, a service pension, income support supplement or a veteran payment; and
(b)the person claims a jobseeker payment within 14 days of the day on which the last instalment of the person’s social security pension, service pension, income support supplement or veteran payment was paid; and
(c)the person becomes qualified for a jobseeker payment at some time during the 14 day period but after the first day of that period;
the person is taken to be qualified for a jobseeker payment for the whole of the 14 day period.
Note:Subsection (4) operates when a person transfers from a social security pension, a service pension, income support supplement or a veteran payment to a jobseeker payment and the person is not qualified for a jobseeker payment immediately after the day on which the person’s last instalment of social security pension, service pension, income support supplement or veteran payment is paid. The subsection deems the person to be so qualified. As a result, the person may be paid a jobseeker payment for the period beginning on the day after the day on which the person’s last instalment of social security pension, service pension, income support supplement or veteran payment was paid. The subsection aims to ensure that there is minimal disruption to a person’s payments when a person transfers from a social security pension, a service pension, income support supplement or a veteran payment to a jobseeker payment.
Coronavirus
(5)A person is qualified for a jobseeker payment in respect of a period that occurs between 1 April 2021 and 30 June 2021 if:
(a)the Secretary is satisfied that the person is in quarantine or self‑isolation as a result of advice from, or a requirement made by, the Commonwealth, a State or a Territory or a health professional regarding the coronavirus known as COVID‑19, or is caring for an immediate family member or a member of the person’s household who is in such quarantine or self‑isolation, throughout the period; and
(b)the Secretary is satisfied that, as a result of the circumstance in paragraph (a), the person’s working hours were reduced (including to zero); and
(c)throughout the period the person satisfies the activity test or is not required to satisfy the activity test; and
(d)the Secretary is satisfied that:
(i)the person is not entitled to receive a leave payment in respect of the period; or
(ii)the person has taken reasonable steps to access any leave payment to which the person may be entitled in respect of the period; or
(iii)the person is receiving a leave payment in respect of the period but, as a result of the adverse economic effects of the coronavirus known as COVID‑19, the payment is less than it would otherwise have been; or
(iv)the person is receiving a leave payment in respect of the period, but the total amount of the leave payment in the period is less than the amount of jobseeker payment that would be payable to the person in the period if the person’s claim were granted; and
(e)throughout the period the person:
(i)is at least 22 years of age and has not reached the pension age; and
(ii)is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and
(f)the person was not in receipt of a youth allowance during the period.

Section 601 of the Act specifies when a person satisfies the ‘activity test’ and, at subsection (5) provides:
(5) If a person fails to comply, throughout a period, with a requirement in a Jobseeker Employment Pathway Plan that is in force in relation to the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1), (4B) or (4D).
Section 602C of the Act provides a power to allow ‘relief’ from the activity test, in defined circumstances, including:
s.602C Relief from activity test—people with disabled children and other circumstances
(1) A person is not required to satisfy the activity test in respect of a period that the Secretary determines under this section in relation to the person.
(2) The Secretary may make a determination under this section in relation to the person if the Secretary is satisfied that the person is the principal carer of one or more children:
(a) who suffer from a physical, intellectual or psychiatric disability or illness; and
(b) whose care needs are such that the person should, for the period specified in the determination, not be required to satisfy the activity test.
Note:          For principal carer see subsections 5(15) to (24).
(3) The Secretary must make a determination under this section in relation to the person if the Secretary is satisfied that the person is the principal carer of one or more children, and that:
(a) the person is a registered and active foster carer; or
(b) the person is a home educator of that child, or one or more of those children; or
(c) the person is a distance educator of that child, or one or more of those children; or
(d) under a family law order that the person is complying with, a child, of whom the person is a relative (other than a parent), is to live with the person.
Note 1:       For principal carer see subsections 5(15) to (24).
Note 2:       For registered and active foster carer see section 5B.
Note 3:       For home educator see section 5C.
Note 4:       For distance educator see section 5D.
Note 5:       For family law order see subsection 23(1).
Note 6:       For relative (other than a parent) see section 5E.
(3A) The Secretary must make a determination under this section in relation to the person if the Secretary is satisfied that:
(a) the person is the principal carer of a child; and
(b) the person is one or both of the following:
(i) the principal carer of one or more other children;
(ii) the main supporter of one or more secondary pupil children; and
(c) there are 4 or more of the children of whom the person is the principal carer or main supporter.
Note 1:       For principal carer see subsections 5(15) to (24).
Note 2:       For main supporter see section 5G.
Note 3:       For secondary pupil child see section 5F.
(3B) The Secretary must make a determination under this section in relation to the person if the Secretary is satisfied that the person:
(a) is not the principal carer of one or more children; and
(b) is a registered and active foster carer; and
(c) is providing foster care to a child temporarily in an emergency or to give respite to another person from caring for the child.
Note 1:       For principal carer see subsections 5(15) to (24).
Note 2:       For registered and active foster carer see section 5B.
(3C) The Secretary must make a determination under this section in relation to the person if the Secretary is satisfied that the person:
(a) is the main supporter of one or more secondary pupil children; and
(b) is a home educator or distance educator of one or more of those children.
Note 1:       For main supporter see section 5G.
Note 2:       For secondary pupil child see section 5F.
Note 3:       For home educator see section 5C.
Note 4:       For distance educator see section 5D.
(3D) The Secretary must make a determination under this section in relation to the person if the Secretary is satisfied that:
(a) the person is the principal carer of one or more children; and
(b) the person is a relative (other than a parent) of a child (the kin child); and
(c) there is a document that:
(i) provides for the kin child to live with the person for the care and wellbeing of the kin child; and
(ii) is prepared or accepted by an authority of a State or Territory that has responsibility for the wellbeing of children; and
(d) the person is acting in accordance with the document.
Note 1:       For principal carer see subsections 5(15) to (24).
Note 2:       For relative (other than a parent) see section 5E.
(4) The Secretary may make a determination under this section in relation to the person if the Secretary is satisfied that:
(a) the person is a person included in a class of persons specified under subsection (5); and
(b) the person’s circumstances are such that the person should not be required to satisfy the activity test for the period.
(5) The Secretary may, by legislative instrument, specify classes of persons in respect of whom determinations under this section may be made.
(6) The period that the Secretary determines under this section, except subsection (3B), must be the lesser of:
(a) the period that the Secretary considers to be appropriate; or
(b) 12 months.
(6A) The period that the Secretary determines under subsection (3B) in relation to the person must be the lesser of:
(a) the period:
(i) starting when the person starts to provide foster care to the child; and
(ii) ending 12 weeks, or a shorter period determined by the Secretary, after the person ceases to provide foster care to the child; and
(b) 12 months.
(7) A period determined by the Secretary under this section in relation to the person may be followed by one or more other periods (not exceeding 12 months) determined under this section in relation to the person.
(8) The Secretary may revoke a determination under this section in relation to a person if the Secretary is satisfied that the grounds on which the determination was made no longer exist.
(9) Subsection (8) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a determination under this section.
Section 603AB of the Act also provides relief from the activity test in the case of some principal carers, as well as other people with only partial capacity to work:
s.603AB Relief from activity test—certain principal carers and people with partial capacity to work
A person who:
(a) is the principal carer of at least one child; or
(b) has a partial capacity to work;
is taken to satisfy the activity test in respect of a period if, during the period, the person is engaged for at least 30 hours per fortnight in paid work that the Secretary regards as suitable.
Note 1: For principal carer see subsections 5(15) to (24).
Note 2: For partial capacity to work see section 16B.
Division 3AA of the Administration Act empowers the Secretary to take action to ensure that people (other than declared program[20] participants) meet their obligations in relation to participation payments, which include Job Seeker payment. Section 42AC(1) of the Administration Act provides:
[20] As defined in s.23 of the Act a declared program participant is a person who is a participant in a program declared in a determination made under s.28C. STEPS is not a ‘Community Development Program Provider’ under the relevant determination.
42AC Mutual obligation failures
(1) A person commits a mutual obligation failure if the person is receiving a participation payment and any of the following applies:
(a) the person fails to comply with a requirement that was notified to the person under subsection 63(2) or (4);
…
(c) the person fails to attend, or to be punctual for, an appointment that the person is required to attend by:
(i) a notice under subsection 63(2); or
(ii) an employment pathway plan that is in force in relation to the person;
(d) the person fails to attend, to be punctual for, or to participate in, an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;
…
(f) an employment pathway plan is in force in relation to the person and the person fails to comply with any other requirement of the plan that applies to the person;
…
Section 42AF of the Administration Act sets out compliance action for mutual obligation failures:
s.42AF Compliance action for mutual obligation failures
Usual rule
(1) If a person commits a mutual obligation failure (the relevant failure), the Secretary may:
(a) determine that the person’s participation payment is not payable to the person for a period (see section 42AL); and
(b) take action under subsection (2) (if applicable).
Note: The person may be eligible for back pay once the payment suspension period ends (see subsection 42AL(4)).
Special rule—persistent mutual obligation failures and no reasonable excuse
(2) If:
(a) the Secretary is satisfied in accordance with an instrument made under subsection 42AR(1) that the person has persistently committed mutual obligation failures; and
(b) the person does not satisfy the Secretary that the person has a reasonable excuse for the relevant failure (see sections 42AI and 42AJ);
the Secretary may determine:
(c) that an instalment of the person’s participation payment for an instalment period is to be reduced (see section 42AN), in addition to making a determination under paragraph (1)(a) of this section; or
(d) that the person’s participation payment is cancelled (see section 42AP).
Note 1: For paragraph (c), the person may be eligible for back pay once the person’s payment suspension period ends (see subsection 42AL(4)). However, the back pay may be reduced (including to nil) if the instalment period for which an instalment is to be reduced under paragraph (c) overlaps with the payment suspension period.
Note 2: For paragraph (d), a further consequence is that participation payments will not be payable to the person for the person’s post‑cancellation non‑payment period (see subsection 42AP(5)).
(3) A determination made under paragraph (2)(d) for the relevant failure has effect despite any determination made under paragraph (1)(a) for the relevant failure.
Action not to be taken—instalment already reduced to nil for instalment period when failure committed
(4) Despite subsections (1) and (2), the Secretary must not make a determination under this section for the relevant failure if:
(a) the Secretary has previously determined under paragraph (2)(c) that an instalment of the person’s participation payment for an instalment period is to be reduced; and
(b) the instalment for the instalment period is reduced by the whole of the amount of the instalment (see paragraph 42AN(3)(b)); and
(c) the person commits the relevant failure during that instalment period.
Section 42AI of the Administration Act provides that the Secretary must, by means of legislative instrument, determine matters which the Secretary ‘must’ take into account, when deciding whether a person has a reasonable excuse for committing a mutual obligation failure. These matters are now set out in subsection 5(2) of the Determination, and are as follows:
(2) The matters are:
(a) the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure;
(b) the literacy and language skills of the person;
Example for paragraph (b):
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c) an illness, injury, impairment or disability of the person;
(d) a cognitive, neurological, psychiatric or psychological impairment or mental illness of the person;
(e) a drug or alcohol dependency of the person;
(f) unforeseen family or caring responsibilities of the person;
(g) the person was subjected to criminal violence (including domestic violence and sexual assault);
(h) the person was adversely affected by the death of an immediate family member or close relative;
(i) the person was undertaking paid work at the time of the failure;
(j) the person was attending a job interview at the time of the failure.
Section 42AJ of the Administration Act provides that an excuse cannot be a reasonable excuse for certain mutual obligation failures, unless the person first notifies the excuse in the required manner; or the Secretary is otherwise satisfied that there were circumstances in which it was not reasonable to expect the person to give notification. The mutual obligation failures which give rise to this notification requirement include:
(a)a failure to attend, or to be punctual for, or to participate in, an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person; and
(b)a failure to attend, or to be punctual for, an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person.
Section 42AM of the Administration Act provides:
s.42AF Compliance action for mutual obligation failures
Usual rule
(1) If a person commits a mutual obligation failure (the relevant failure), the Secretary may:
(a) determine that the person’s participation payment is not payable to the person for a period (see section 42AL); and
(b) take action under subsection (2) (if applicable).
Note: The person may be eligible for back pay once the payment suspension period ends (see subsection 42AL(4)).
Special rule—persistent mutual obligation failures and no reasonable excuse
(2) If:
(a) the Secretary is satisfied in accordance with an instrument made under subsection 42AR(1) that the person has persistently committed mutual obligation failures; and
(b) the person does not satisfy the Secretary that the person has a reasonable excuse for the relevant failure (see sections 42AI and 42AJ);
the Secretary may determine:
(c) that an instalment of the person’s participation payment for an instalment period is to be reduced (see section 42AN), in addition to making a determination under paragraph (1)(a) of this section; or
(d) that the person’s participation payment is cancelled (see section 42AP).
Note 1: For paragraph (c), the person may be eligible for back pay once the person’s payment suspension period ends (see subsection 42AL(4)). However, the back pay may be reduced (including to nil) if the instalment period for which an instalment is to be reduced under paragraph (c) overlaps with the payment suspension period.
Note 2: For paragraph (d), a further consequence is that participation payments will not be payable to the person for the person’s post‑cancellation non‑payment period (see subsection 42AP(5)).
(3) A determination made under paragraph (2)(d) for the relevant failure has effect despite any determination made under paragraph (1)(a) for the relevant failure.
Action not to be taken—instalment already reduced to nil for instalment period when failure committed
(4) Despite subsections (1) and (2), the Secretary must not make a determination under this section for the relevant failure if:
(a) the Secretary has previously determined under paragraph (2)(c) that an instalment of the person’s participation payment for an instalment period is to be reduced; and
(b) the instalment for the instalment period is reduced by the whole of the amount of the instalment (see paragraph 42AN(3)(b)); and
(c) the person commits the relevant failure during that instalment period.
Applicant’s Contentions
In her SFIC filed before the Tribunal on 17 October 2022, the Applicant contends that:[21]
a.On 24 September 2019, she had informed Centrelink that; she had established her own domestic violence advocacy organisation and had requested a mutual obligation exemption in relation to her work for that organisation, and advised Centrelink that she was now working 35 hours per week in her new domestic violence advocacy entity. At that time the Applicant was advised by Centrelink that she must attend with her DES[22] until a decision was made about her request from exemption from her mutual obligation commitments by a ‘complex assessment’ officer (CAO);
b.The first DES appointment scheduled for 27 September 2019 is one of several that do not appear on the Appointment History Table, as now set out in the T documents. The Applicant did not receive notification of most of the other re-scheduled/unattended appointments as now listed in the Appointment History Schedule in the T documents;[23]
c.On 11 February 2020, the Applicant received an SMS message saying that her DES appointments were now ‘voluntary’.[24] A photocopy of the SMS message allegedly received on that date was also provided. From that point going forward, the Applicant says that she elected not to attend any appointments, in order to be able to focus on her new business, and on home schooling her child;[25]
d.Centrelink stopped her payments suddenly, and without warning.[26] The Applicant was thus coerced to reattend DES by the threat that payment would continue to be withheld, unless she re-engaged. At that point she did re-engage with DES, and she explained to them what she had been doing.[27]
e.During the initial decision review request Centrelink had confirmed to the Applicant that the evidence of home schooling that she had provided was sufficient for an exemption.
[21] Applicant’s Statement of Facts, Issues and Contentions (‘Applicant SFIC 04.07.22) dated 4 July 2022; Applicant’s Statement of Facts, Issues and Contentions (‘Applicant SFIC 17.10.22’) dated 17 October 2022.
[22] Applicant SFIC 17.10.22 pp.1-4. Note: ‘Disability Employment Services’ provider. STEPS was the relevant DES in this instance.
[23] Ibid.
[24] Ibid p.3.
[25] Applicant SFIC 04.07.22 p.5.
[26] Ibid p,1; Applicant SFIC 17.10.22 p.2.
[27] Applicant Submission dated 07 November 2022.
The Applicant contends that she had requested a mutual obligation exemption, on 24 September 2019. That the Applicant had made this request is now confirmed to the Tribunal’s satisfaction on the basis of Centrelink file notes from 24 September 2019. Yet, the file note also confirms that the Applicant was further advised that her request first needed to be considered and assessed by a Complex Assessment Officer. There is no evidence that the Applicant was told that she was now exempt, and nor on the basis of the contemporaneous file note could it be reasonably construed that the Applicant was somehow given to believe that an exemption from mutual obligations arose from that date on the basis of anything that was said by the Centrelink Officer on 24 September 2019.
The Applicant has provided a photocopy of an SMS message she claims to have received on 11 February 2020 stating that her “requirements are now voluntary”.[28] The Tribunal notes however that the STEPS file note for 21 February 2020 records that the Applicant had contacted STEPS on that date and had advised STEPS that she had received an SMS stating that her obligations were voluntary until 6 March.[29] These further words are not shown in the photocopy of the SMS message now produced to the Tribunal by the Applicant as evidence.[30] In these circumstances the Respondent submits that the Tribunal cannot repose any faith in the provenance of the photocopy of the SMS ostensibly received by the Applicant on 11 February 2020, by reason that the sender and date of the SMS are unverified, and because the photocopy of the message is incomplete as the full message is not visible.[31] For each of these reasons, and because the Applicant’s customer record produced by STEPS in response to s.196 of the Administration Act records that the Applicant’s requirement to engage with STEPS fortnightly was specified as ‘compulsory’, and does not note any approved exemptions, the Tribunal is not prepared to attach any evidential weight to the photocopy of the SMS message from 11 February 2020, as now produced by the Applicant.
[28] Applicant SFIC 17.10.22 p.3.
[29] Supplementary T-Documents filed 5 December 2022 (ST Docs 5.12.22), ST2 p.10.
[30] Applicant SFIC 17.10.22; Applicant Material filed 20 December 2022 pp.3, 21.
[31] Respondent Reply filed 13 December 2022 pp.2-4.

The Respondent acknowledges that mutual obligation requirements were subject to temporary changes in response to COVID-19, and that these were temporarily paused, during the period 24 March 2020 until 4 August 2020 in response to the pandemic. On this basis the Respondent accepts that the Applicant did not have an enforceable mutual obligation requirement to attend fortnightly appointments at STEPS between 24 March 2020 and 4 August 2020.[32] Ultimately however, that is not a matter of any specific relevance to the determination of this Application for Review, given that the Applicant’s JSP was suspended in November 2020, because of the Applicant’s non-compliance on a date after mutual obligation obligations had been re-activated.[33]
[32] Ibid p.5.
[33] T-Documents, pp.79-82.
The Applicant further contends that the initial DES (STEPS) appointment for 27 September 2019 - as well as several other subsequent DES appointments - are not recorded in the list of appointments set out by the Respondent Department in the Appointments History Table in the T Documents.[34] Having now examined the records produced by STEPS to the Respondent in response to a notice under s.196 of the Administration Act, the Tribunal concurs in the view that the Appointment History Table in the T Documents is not accurate. In these circumstances the safest course for the Tribunal is to now rely on the STEPS records themselves, in terms of these being a contemporaneous record and hence the best evidence of the interactions between STEPS and the Applicant.
[34] Ibid pp.13-96.
The STEPS records indicate that the 27 September 2019 appointment did not take place because it was rescheduled at the behest of the Applicant, “due to medical reasons”.
Although the Applicant now contends that she did not receive notification of many of the other re-scheduled or unattended appointments, as listed, the records now produced by STEPS reveal that the Applicant was notified, by a combination of telephone and mail, yet still failed to attend appointments at STEPS on the following dates, each of which were not subject to the temporary pause on mutual obligation requirements because of the special measures specified by Centrelink in response to COVID-19:
-21 February 2020; 9 March 2020; 18 March 2020; 12 August 2020; 25 August 2020; 23 September 2020, 7 October 2020; and 16 October 2020.
The STEPS records indicate that the Applicant sent an SMS to STEPS on 29 October 2020 stating:
Hi Fran. Im reengaging with you to reinstate my payment. Im busy with my company and will let you know if I require any further assistance. Email or sms is best communication for now. Thanks. [TBWY] [35]
[35] ST Docs 5.12.22, ST7.
STEPS again attempted to contact the Applicant on 30 October 2020 to discuss her re-engaging, however the Applicant did not answer. On 20 October 2020 a voice message was left by STEPS advising the Applicant that she needed to contact STEPS by telephone, to re-engage. The records produced by STEPS also confirm that the Applicant did not attend her scheduled appointment on 10 November 2020.
Was there a mutual obligation failure and was the Applicant’s JSP correctly cancelled?
There was an employment pathway plan (‘Job Plan’) in force in relation to the Applicant from 24 January 2020. Amongst other things, this required that the Applicant attend fortnightly Disability Employment Services (‘DES’) appointments with STEPS, as her allocated DES provider.
The Applicant failed to comply with a mutual obligation requirement on 16 October 2020 when she failed to attend the scheduled appointment, as required under her Job plan (‘the failure’). This enlivened s.42AC(1)(c)(ii) of the Administration Act. In consequence, the Applicant’s Jobseeker payment was correctly suspended pursuant to s.42AF(1)(a) of the Administration Act. The Secretary then correctly imposed a reconnection requirement on the Applicant, as required by s.42AM of the Administration Act. This was undertaken by means of a notice to the Applicant dated 16 October 2020 which set out the Applicant’s reconnection requirement, and the implications that would flow from the Applicant not complying with the reconnection requirement:[36]
[36] T Docs 11.05.22, T5, p.67.
“16 October 2020
Dear [TBWY]
Your JobSeeker Payment has been stopped
Our records show that you did not go to, or were late for an appointment arranged by your provider
on 16 October 2020. As a result, your JobSeeker Payment has been stopped from
15 October 2020.
This letter is a notice of decision made under social security law. Information about what to do if
you think this decision is wrong is on the back of this letter.
What you need to do
If you have not already done so, you need to call your Employment Services Provider as soon
as possible on (07) 5455 2750 (call charges may apply) to:
• discuss the reasons you did not meet this requirement, and
• if required, receive more information on what you need to do to have your payment restarted.
If you do not do this
If you do not call your provider and meet the requirement they have given you, your payment may
be cancelled. If this happens, you will need to make a new claim if you wish to receive a payment
again.
More information
For more information, please contact your Employment Services Provider.
Yours sincerely
Secretary”
The Applicant also seeks to contend that she was eligible for a home-schooling exemption, such that she ought to be considered exempt from any on-going mutual obligations. There is however insufficient evidence before the Tribunal for the Tribunal to now be satisfied that the Applicant was exempt from the activity test under s.602C of the Act, either on the basis that she was the principal carer of a child suffering from a physical, intellectual or psychiatric disability or illness; or whose care needs were such that she should not be required to satisfy the activity test; or that she was a ‘home educator’ of her child as defined in s.5C of the Act. There is also insufficient evidence to satisfy the Tribunal that the Applicant qualifies for an exemption from the activity test under s.603AB.
DECISION
The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 2 March 2022 is affirmed.

I certify that the preceding Forty-Eight paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams

.............................[SGD]...........................................
Associate
Dated: 27 March 2023

Date of hearing:

On the Papers

Applicant:

Self-represented.

Solicitor for the Respondent:

Gillian Gehrke (Services Australia)

[2023] AATA 654

27 March 2023

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Jurisdiction

Date of hearing:	On the Papers
Applicant:	Self-represented.
Solicitor for the Respondent:	Gillian Gehrke (Services Australia)