The Applicant and Secretary, Department of Employment and Workplace Relations and Anor
[2007] AATA 1024
•24 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/647
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | THE APPLICANT | ||
Applicant
| And | Secretary, Department of Employment and Work Place Relations |
First Respondent
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Second Respondent
DECISION
| Tribunal | Ms N Isenberg, Senior Member |
Date 24 January 2007
Place Sydney
| Decision | The decision under review is affirmed. |
......................[sgd]....................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – unemployment benefits – newstart allowance – activity test – refusal to enter into Preparing for Work Agreement –claim for special benefit - decision under review affirmed.
Social Security Act 1991 sections 593, 601, 603A, 604, 605, 606(1-4), 729(2)
Social Security (Administration) Act 1999
Social Security (Budget and other Measures) Legislation Amendment Act 1993
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
| 24 January 2007 | Ms N Isenberg, Senior Member |
DECISIONS UNDER REVIEW
On 17 May 2006 the Social Security Appeals Tribunal (“SSAT”) affirmed the following decisions made by Centrelink in March 2006:
To suspend the Applicant’s newstart allowance;
Not to exempt the Applicant from the activity test in relation to her newstart allowance; and
To reject the Applicant’s claim for special benefit.
ISSUES BEFORE THE TRIBUNAL
It was conceded at the outset that newstart allowance should have been paid to the Applicant for the period 14 March 2006 to 19 March 2006, a period when payment had been suspended.
The Applicant was refused special benefit by Centrelink. Special benefit is available only where no social security pension is payable to the person during the period: s729(2) Social Security Act 1991 (“the Act”).
The first matter to be determined is whether at the date of application for special benefit, 20 March 2006, a social security pension, specifically newstart allowance, was payable to the Applicant.
This in turn involves a consideration of whether she was entitled to be exempted from the activity test on the basis of special circumstances.
LEGISLATIVE FRAMEWORK
Newstart allowance payments are made to claimants who are unemployed and are looking for work. It allows Centrelink beneficiaries to participate in activities designed to increase their chances of finding work.
Section 593 of the Act provides that in order to be qualified for newstart allowance a person must satisfy the activity test, that is, they must be “actively seeking and be willing to undertake” work: s601
Section 604 of the Act authorises Centrelink to require recipients to enter into Newstart Activity Agreements by issuing a notice to the person advising them of the requirement and the date and time for negotiating an agreement. Section 605 of the Act sets out that the person in receipt of newstart allowance may be required to enter into a Newstart Activity Agreement (or another such agreement instead of an existing one).
A Preparing for Work Agreement is an activity agreement for the purposes of the Act and the Social Security (Administration) Act 1999. Preparing for Work Agreements are designed to ensure that job seekers understand that they must meet their obligations to actively seek jobs and participate in a range of additional activities in return for receiving unemployment payments. Generally speaking, all job seekers aged under 50 who are receiving newstart allowance and are subject to the activity test are required to enter into a Preparing for Work Agreement.
An agreement can contain a range of activities: s606(1). However, any terms in the agreement must be approved by the Secretary: s606(2). In considering whether to approve the terms of an agreement, the Secretary has to have regard to the person’s capacity to comply with the agreement: s606(3) & (4).
Section 603A provides relief from the activity test in special circumstances:
603A(1) Subject to subsections (2) and (3), a person is not required to satisfy the activity test for a period if:
(a) the Secretary is satisfied that special circumstances, beyond the person’s control, exist; and
(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that period.
603A(2) The period referred to in subsection (1) is not to exceed 13 weeks.
603A(3) If:
(a) the Secretary makes a number of determinations under any one or more of the following provisions:
(i) subsection 525AA(3) of this Act as previously in force;
(ii) subsection 542H(1) of this Act;
(iia) subsection 731E(1) of this Act;
(iii) subsection (1) of this section; and
(b) the periods to which the determinations relate form a continuous period;
the continuous period is not to exceed 13 weeks, unless the Secretary determines otherwise, having regard to the continued existence, or likely continued existence, of the special circumstances on which the last preceding determination was based.
BACKGROUND
The history of the Applicant’s relationship with Centrelink is long and complex, and what follows sets out the relevant features only.
The Applicant received newstart allowance, according to the available material, from at least 12 April 2001 (T52). From time to time she was granted exemption from the newstart allowance activity test under s603A.
On 19 December 2005, the Applicant lodged a request for a further extension of the exemption from the activity test, claiming “special circumstances” which were set out in the request. She was informed by letter dated 10 January 2006 that her exemption from the activity test would cease on 13 January 2006, after which time she would be required to look for work.
In the meantime the Applicant made an application for special benefit on 1 February 2006, but this was refused.
By letter dated 11 February 2006 Centrelink informed the Applicant that an interview had been arranged for her with Jobfind Centre on 24 February 2006, the purpose of which was to negotiate a new Job Search Plan and that during the interview she may be required to enter a Preparing for Work Agreement. The letter further advised that failure to attend this interview may cause her newstart allowance to be stopped or reduced. However the Applicant declined to attend the interview.
On 22 February 2006, Centrelink wrote to her again, advising her that she needed to attend the interview arranged for 24 February 2006 to avoid affecting her newstart allowance payments. On 1 March 2006, Centrelink informed the Applicant that if she did not make contact by 8 March 2006 her newstart allowance would be stopped. When no contact was made, Centrelink stopped her newstart allowance.
On 20 March 2006, the Applicant lodged a further claim for special benefit stating: “I do not qualify for newstart allowance as I am not willing to work in my present circumstances due to unlawful discrimination…”(T30, p144)
On the same day, she lodged another request for exemption from the activity test but this was refused. Her newstart allowance was suspended because she had not signed a Preparing for Work Agreement and her claim for special benefit was also refused.
The decisions in relation to the exemption, the suspension of newstart allowance and special benefit were reviewed by the Authorised Review Officer (“ARO”) and also by the SSAT and were affirmed.
CONSIDERATION OF EVIDENCE
The Applicant provided an affidavit and a Statement of Facts and Contentions (with addendum) in addition to her oral evidence. The Respondent also provided a Statement of Facts and Contentions. The T documents and supplementary T documents were also taken into evidence.
In a claim form dated 18 November 2005 (T7) she wrote that at least one of her previous jobs had ended in “circumstances that amount to constructive dismissal”, in that her conditions of employment were unlawfully discriminatory. She alleged she had been subjected to discrimination, victimisation and sexual harassment and has brought, and continues to bring, complaints to the Human Rights and Equal Opportunity Commission (HREOC) and in the courts, in relation to this. She repeated this contention at the hearing.
The Applicant made a number of submissions as to why her circumstances were special, such that she should be exempted from the activity test under s 603A. In her evidence she cited the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). She said that she had been the subject of unlawful discrimination by imputing a disability which she does not have, sexual harassment and also at discrimination occurring on the basis of her marital status as an unmarried person (Transcript of Proceedings (15 December 2006) p19).
In her statement requesting an exemption from the activity test dated 19 December 2005 (T12), in addition to allegations of unlawful discrimination and sexual harassment and the damage to her reputation, she noted victimisation as a complaint. She also wrote that it was unreasonable to expect her to look for work in circumstances where she had no employment references, could not provide a proper resume, and would have to tell prospective employers that she is complaining about past employers and that she may end up complaining about them.
She contended in her earlier claim for special benefit (T7, p66) that Centrelink had inappropriately tried to place her on an “intensive support” program because of a perceived disability, in particular, a paranoid personality disorder, which she strenuously denies:
My reputation will be destroyed by having to look for work in the circumstances described, and I certainly will not be offered any employment in these circumstances. It is not reasonable to expect me to look for work in these circumstances and I certainly will not obtain work in these circumstances.
In her request for review dated 27 March 2006 (T39, p181) she wrote that she was no longer willing to undertake paid work in the circumstances she was in.
In her submission lodged on 20 March 2006 regarding special benefit (ST2, p30) she wrote that not being exempted from the activity test was a matter beyond her control as she was not responsible for the actions of others in unlawfully discriminating against her. She also wrote that she was unable to earn a sufficient livelihood for herself.
In her application to this Tribunal for review of the SSAT’s decision, dated 30 May 2006 (T1, pp19-20) she wrote that “my reputation, as an unimpaired person, will suffer if I am forced to satisfy the activity test. Further, any offer of employment in my present circumstances will result in a complaint to HREOC.”
In her application she also wrote of the outstanding occupancy fees she owes her landlord for the period in which she was not in receipt of any Centrelink benefit, storage fees and grocery bills she had paid using a credit card. She wrote that she is in severe financial hardship and has no other means of paying the outstanding occupancy fees and credit card debt (T1, p19). (According to her Statement of Facts and Contentions she owes $420 in rent and $3000 on her credit card.)
In essence the Applicant contends that the special circumstances which exist in her case are that she has been subjected to unlawful discrimination by a number of persons, organisations and various Commonwealth and State Departments and agencies, including former employers. She has brought proceedings in relation to those matters. She also alleges she has been victimised because of making those complaints.
I appreciate that underlying the Applicant’s concern is that she has been regarded in some quarters as suffering a mental disability. She told me she had received involuntary treatment. Some aspects of her affairs are apparently in the hands of the Guardianship Tribunal.
I stressed at the hearing that I had no role whatever in determining her mental health and would form no views about whether she had been inappropriately dealt with because of perceptions about her mental health.
Meaning of “Special Circumstances”
The term “special circumstances” has been examined by the Federal Court. In Re Beadle and Director General of Social Security (1984) 6 ALD 1 at 3, Toohey J stated:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Keifel J, after referring to the Federal Court’s decision in Beadle, observed that special circumstances:
…it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
I was referred to the Guide to Social Security, Guideline 3.2.12.40 which sets out examples of instances where special circumstances exist such that an exemption to the activity test may be granted. They are as follows:
Major personal disruption to recipient’s home,
Major personal crisis (including homelessness),
Temporary carer’s duties,
Jury duty,
Being a refugee,
Undertaking a Community Services Order for more than 20 hours per week, or
Volunteering during a State or National emergency.
These examples are not an exhaustive list of what may be considered “special circumstances”. The types of circumstances envisaged, however, are of a relatively temporary nature. The circumstances also must be outside of the control of the applicant. These factors are required to make it unreasonable for a person to comply with the activity test for that temporary period.
Section 603A was inserted by the Social Security (Budget and other Measures) Legislation Amendment Act 1993, with effect from 20 March 1994. The Explanatory Memorandum in relation to the provision stated as follows:
There are other circumstances, not presently covered by the Principal Act, that may legitimately prevent a person from complying with a requirement made of the person under the activity test. A person should not be expected to satisfy the activity test in situations such as a death in the family, illness where the JSA recipient is required to care for the person affected by the illness or other “special circumstances”.
This measure provides an exemption from the activity test for those persons who, due to special circumstances, cannot reasonably be expected to satisfy that test. The exemption is available for a maximum continuous period of 13 weeks.
The Applicant’s position is that she should not be required to look for employment. I do not accept that, even if the Applicant believes that she has been treated unlawfully in past employment and that this affects her ability to apply for work, this can amount to special circumstances such that she should not comply with the normal requirements expected of any unemployed person who is in receipt of newstart allowance.
I do not accept that her financial situation is out of the ordinary for an unemployed person who has, for periods, declined to seek work.
I note too, that the Applicant has previously complied with the activity test and is presently complying with the requirements placed on her by the activity test. I am informed she is currently in receipt of newstart allowance and has been since 29 May 2006. At the hearing she told me that notwithstanding that she was not prepared to work she complied with newstart allowance requirements so as to obtain a source of income. This necessarily demonstrates that she is capable of meeting the activity test.
There is no reason why the Applicant should not comply with the usual requirements for the grant of newstart allowance, despite the matters she has contended as constituting special circumstances.
I have therefore come to the view that the Applicant should not be granted an exemption under s603A from the activity test.
Having reached that decision it follows that the Applicant is a person to whom a social security pension is payable. That being the case, she is not entitled to the special benefit.
DECISION
The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ............[Emily Gadsby].......................
Associate
Date of Hearing 15 December 2006
Date of Decision 24 January 2007
Representative for the Applicant Self-represented
Counsel for the Respondent Mr S LloydSolicitor for the Respondent Ms D Watson, Australian Government Solicitor
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