Thomas; Department of Family and Community Services
[2001] AATA 618
•2 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 618
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/843
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And EVAN THOMAS
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date2 July 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means that the application for review by the Department of Family and Community Services is unsuccessful.
(Sgd) EK CHRISTIE
MEMBER
CATCHWORDS
SOCIAL SECURITY – Newstart Activity Agreement – whether unreasonable delay in entering Newstart Activity Agreement – meaning of "unreasonable delay".
Social Security Act 1991 s 607
Re Chadwick and Secretary, Department of Employment, Education, Training and Youth Affairs, AAT Decision 11524
Re Geeves and Secretary, Department of Employment, Education and Training, AAT Decision 10873
Thornton v Repatriation Commission (1981) 52 FLR 285
REASONS FOR DECISION
2 July 2001 Dr E K Christie, Member
This is an application by the Secretary, Department of Family and Community Services ("the Department") to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 23 March 2000 to set aside the decision made by an Authorised Review Officer on 20 December 1999.
The SSAT decided to set aside the following decision of the Authorised Review Officer:
"…. To impose an Newstart Allowance activity test breach of 100% with a non payment period from 23 November 1999 to 17 January 2000."
The decision under review of the SSAT was:
"to set aside the decision and send the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the direction that Mr Thomas did not unreasonably delay entering into a Newstart Allowance Activity Agreement." (T2, Folio 3)
The reason given by the Department for the application for review was:
"That the decision is wrong because Mr Thomas did unreasonably delay entering into a Newstart Activity Agreement." (T1, Folio 1)
At the hearing the Department was represented by Mr R McQuinlan, a Departmental Advocate. Mr Thomas represented himself.
The Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1) and Exhibit 1A, the Supplementary "T" documents.
At the end of the hearing the Tribunal applied its inquisitorial powers to ensure better informed decision-making by:
contacting Mr Thomas' treating psychiatrist (Dr A Gordon) in relation to issues raised during the hearing concerning Mr Thomas' attention deficit disorder; and
enabling the Department to pursue investigation concerning the photographic identification of Ms H McQuie, a Drake Jobseek Consultant.
Issues before the Tribunal
The only issues for the Tribunal to decide were whether there had been an "unreasonable delay" on Mr Thomas' part in entering into a Newstart Activity Agreement and whether a Newstart Allowance non-payment period should have been imposed.
FactsOn the evidence before it, the SSAT made the following findings of fact:
"(a)It is not in dispute that Mr Thomas did not enter into a Newstart Activity Agreement with Drake Jobseek during the period 8 July until November 1999. Mr Thomas was given two prior breaches for failing to attend interviews with Drake Jobseek, the first on 2 August 1999 and the second on 7 September 1999. Mr. Thomas received a third breach on 23 November 1999. This imposed a Newstart Allowance 100% non payment period;
(b)It is not in dispute that Drake Jobseek sent letters to Mr Thomas requiring him to attend appointments to enter into an activity agreement. All the letters were sent to an address at 6/16 Notts Avenue, Bondi Beach;
(c)It is not in dispute that Centrelink was informed on 23 September 1999 that Mr Thomas's address had changed to 39 Hudson Street, Hamilton [Newcastle].
(d)The tribunal accepts Mr Thomas' and Mrs Helen Kamal's evidence that Mr Thomas knew a Ms Holly McQuie. This the tribunal finds is based on the oral evidence given by Mr Thomas at the hearing, a photocopy of a statement given by Mrs Kamal (Mr Thomas's mother), witnessed by a Justice of Peace on 28 January 2000, and confirmed by Mrs Kamal when telephoned by the tribunal;
(e)The tribunal accepts that Dr Zabow [Mr Thomas' GP] has diagnosed and treated Mr Thomas for Anxiety & Depression since January 2000 and prescribed Prothiadine. As well he diagnosed Mr Thomas as having Attention Deficit Syndrome. Dr Zabow did not prescribe any medication for this. The tribunal based this finding on the evidence given by Mr Thomas at the hearing, and from telephone contact with Dr Zabow on 3 March 2000." (T2, Folios 8, 9)
Contentions and Submissions of the Parties
In response to the SSAT's findings of fact, Mr Thomas said that whilst he agreed with their findings (a), (d) and (e), he qualified the other findings as follows:
that during the period he failed to attend interviews there was a need to understand that he was in a "delusional state" because of his illness and inability to earn income through working;
whilst Drake Jobseek letters may have been sent to him at the Bondi Beach address, he had advised Drake that he was moving to Newcastle. However, he did not tell the Drake Jobseek Consultant about his anxiety/depression and attention deficit disorder conditions because he had previously been in a long-term relationship with his case manager, Ms Holly McQuie, whilst studying at University. Consequently, he did not wish her to know he had a mental disease;
that whilst he could not verify that Centrelink had not actually sent the letters to him advising him of his Newstart Activity Agreement interviews, he maintained that he had never received them;
that in terms of Centrelink having his correct address and the effects on misdirected mail delivery of notices to him, Mr Thomas said, at the time, that this was the "least of his worries as he was thinking of killing himself"; and
that the reason he was aware of one Newstart Activity Agreement interview with Holly McQuie (the Drake Jobseek Consultant), the one that he did not attend or receive the Centrelink notice, was because Ms McQuie rang him on his birthday and told him she was his Case Manager and would be breaching him for failing to attend the interview.
Mr Thomas said that Dr Zabow was his treating General Practitioner who had treated him for anxiety and depression. The medication prescribed was 75mg/d Prothiadine. In addition, since 1995/96 Mr Thomas had been treated by Dr A Gordon, a psychiatrist practising at Greenwich. Dr Gordon treated him for attention deficit disorder and had prescribed Dexamphetamine (6 tabs/day).
In response to the following symptoms for attention deficit disorder (Diagnostic Criteria; DSM-IV-TR, Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition), Mr Thomas said that he experienced all of the symptoms listed, to a varying degree, and was the reason he had abandoned his law degree studies:
"Diagnostic criteria for Attention-Deficit/Hyperactivity Disorder
A. Either (1) or (2):(1)six (or more) of the following symptoms of inattention have persisted for at least 6 months to a degree that is maladaptive and inconsistent with developmental level:
Inattention
(a)often fails to give close attention to details or makes careless mistakes in schoolwork, work, or other activities
(b)often has difficulty sustaining attention in tasks or play activities
(c)often does not seem to listen when spoken to directly
(d)often does not follow through on instructions and fails to finish school-work, chores, or duties in the workplace (not due to oppositional behaviour or failure to understand instructions)
(e)often has difficulty organizing tasks and activities
(f)often avoids, dislikes, or is reluctant to engage in tasks that require sustained mental effort (such as schoolwork or homework)
(g)often loses things necessary for tasks or activities (e.g., toys, school assignments, pencils, books, or tools)
(h)is often easily distracted by extraneous stimuli
(i)is often forgetful in daily activities."
Mr Thomas concluded stating that he had now turned his life around since coming to Queensland in July 2000. His medication regime was working; he had entered into a new activity agreement and was studying in a Certificate course at the Southbank TAFE. He also had a part-time job.
Mr McQuinlan, the Departmental Advocate, stated that the basis for a breach being imposed on Mr Thomas was that he failed to attend a number of interviews with his job network member. The interviews were necessary for negotiating a Newstart Activity Agreement. Mr McQuinlan submitted that on each occasion Mr Thomas failed to attend an interview he did not have a reasonable excuse and contended that he had unreasonably delayed entering into a Newstart Activity Agreement.
Mr McQuinlan stated that over the period 2 July 1999 to 14 October 1999 Centrelink had sent Mr Thomas seven notices (T5, T6, T8, T9, T11, T12, T13) advising him of interviews he must attend in relation to his Newstart Activity Agreement. The Centrelink notices were sent to addresses held on their records as Mr. Thomas' correct address. However, Mr. Thomas did not attend any of these interviews.
On 29 October 1999, Mr Thomas rang Centrelink and another (the eighth) interview was arranged (T20). Mr Thomas also failed to attend this interview.
Mr McQuinlan submitted the decision to impose an activity test non-payment period was correct because Mr Thomas' failure to attend eight interviews constituted a failure to enter into an agreement. However, Mr Thomas had already been breached twice previously: 2 August 1999 and 7 September 1999. Accordingly, his failure to attend the interview on 28 October 1999 (T20 Folio 71) was his third breach so that a non-payment period of eight weeks applied.
Mr McQuinlan contended that there was no basis to conclude that Mr Thomas did not unreasonably delay entering into the agreement. He based this conclusion on the following contentions:
Mr Thomas' conduct prior to the interview on 28 October 1999 in that he failed to attend six interviews scheduled for him by his intensive assistance provider (Drake Jobseek) as well as a further interview. Mr Thomas had claimed that he did not attend these interviews because of his previous relationship with his case manager – Ms Holly McQuie;
there was a degree of uncertainty whether Mr Thomas' case manager, at Drake Jobseek, Ms Holly McQuie, was the same person he had a relationship with; moreover, whether the Ms McQuie employed by Drake Jobseek actually knew Mr Thomas (T20, Folio 76);
notwithstanding the uncertainty over Ms McQuie, Mr McQuinlan stated that Mr Thomas still failed to attend the interview on 28 October 1999, even though a new case manager had been assigned to him;
that any failure to receive Centrelink notification notices were within Mr Thomas' control. The outcome of his failing to notify Centrelink each time he changed his address was that he did not get notices of the interviews scheduled for him to attend. For this reason, Mr McQuinlan contended that the failure to attend interviews by Mr Thomas could not be regarded as an "unreasonable delay"; and
that the problems of failure to attend interviews still continues, with Mr Thomas failing to attend an interview scheduled for 8 November 1999, verbally arranged on his mobile phone (T20, Folio 76).
Mr McQuinlan concluded by contending Mr Thomas' failure to attend the interview on 28 October 1999, together with his subsequent failure to attend a further interview for 8 November 1999 arranged with a new consultant (other than Ms McQuie), strongly suggests he was unreasonably delaying entering into a Newstart Activity Agreement.
Supplementary SubmissionsDr Gordon's medical report was received by the Tribunal on 28 March 2001. In his report, Dr Gordon stated:
"Mr Evan Thomas was referred to me in July, 1998 when I diagnosed him with Attention Deficit Disorder and commenced him on stimulant medication. He continued under my care until the end of the year 2000 when he transferred residence to Queensland and I transferred his care to Dr H Levian of Brisbane.
Attention Deficit Disorder is a congenital condition and Mr Thomas has had this Disorder from his birth. His hyperactivity and his inability to sustain concentration has affected both his education and his occupational aspirations. He is extremely disorganised, has difficulty completing any task, is extremely forgetful and inclined to be impulsive. Although Mr Thomas is able to make decisions, he is totally unreliable in putting these decisions into effect. After the commencement of Dexamphetamine, Mr Thomas's organisational abilities have improved but he remains inclined to procrastinate without reflection and remains unreliable in time keeping and attendance at appointments. His distractibility inclines him to involve himself in desperate activities which he is often unable to undertake with efficacy or reliability. To my knowledge, there are no adverse interactions between Dexamphetamine and Prothiaden."
It was Mr McQuinlan's contention that notwithstanding that, the medical evidence indicates that Mr Thomas suffers from Attention Deficit Disorder, his evidence at the Tribunal hearing was to the effect that it was not medical factors which prevented him from attending the interviews, but rather that he chose to attend the interviews at Drake Jobseek as he wished to avoid Ms Holly McQuie, the case manager he had been assigned by that organisation. Accordingly, Mr McQuinlan contended that Mr Thomas' medical condition of Attention Deficit Disorder, and associated effects of that condition and medication, was not the reason for his non-attendance at the interviews arranged with Drake Jobseek.
At the hearing, Mr Thomas provided copies of photographs of himself and his former de facto partner (Ms Holly McQuie). Ms McQuie was assigned by Drake Jobseek to be Mr Thomas' case manager (paragraph 10). However, all attempts by the Department for the Drake Jobseek office to identify Ms McQuie from the photograph provided by Mr Thomas were fruitless. Drake Jobseek advised Centrelink on 22 May 2001 that they could not assist with Centrelink enquiries on this issue as they no longer employed anyone who knew or worked with Ms McQuie. The Tribunal is concerned that a simple request has taken Drake Jobseek almost 11 weeks to respond.
Mr McQuinlan submitted that even if Mr Thomas had previously had a relationship with Ms McQuie, this would not constitute a reasonable excuse for his failure to attend 6 consecutive appointments arranged with Drake Jobseek during the period 16 July 1999 to 28 October 1999 and that he unreasonably delayed entering into an agreement.
Consideration of the IssuesThe objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Social Security Act 1991.
Section 607 is the relevant Section in relation to Mr Thomas failing to negotiate a Newstart Activity Agreement:
"607.(1) If:
(a)a person has been given notice under subsection 605(3) of a requirement to enter into a Newstart Activity Agreement; and
(b)because the person did not:
(i)attend the negotiation of the agreement; or
(ii) respond to correspondence about the agreement; or
(iii) agree to terms of the agreement proposed by the Secretary;
or for any other reason, the Secretary is satisfied that the person is unreasonably delaying entering into the agreement.then:
(c)the Secretary may give the person notice that the person is being taken to have failed to enter the agreement; and
(d)if the notice is given – the person is taken to have so failed."
It is not in dispute that Mr Thomas was breached for failing to attend interviews with Drake Jobseek on 2 August 1999, 7 September 1999 and 23 November 1999. At issue, however, is whether such non-attendance should be taken to amount to "unreasonable delay" in entering an agreement.
The meaning of "unreasonable delay" has been considered judicially.
In Thornton v Repatriation Commission (1981) 52 FLR 285 at 290, Fisher J stated:
"In my opinion a delay is unreasonable if it can be said that no reasonable man acting in good faith would in the circumstances have approved the delay."
In Re Geeves and Secretary, Department of Employment, Education and Training (AAT Decision 10873), the Tribunal held that unreasonably delaying entering an Agreement "involves some mental element". For example, the Tribunal held that a person unreasonably delays entering into a Case Management Activity Agreement if "he or she is aware of an appointment notified pursuant to s.38(5)(b) for the negotiation of the agreement and, without any reasonable cause or excuse fails to attend that appointment".
In Re Chadwick and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT Decision 11524), the Tribunal held that whether a person has unreasonably delayed entering into a Case Management Agreement must be determined objectively by considering what a reasonable person would do.
In determining the issues in dispute, the Tribunal must apply these authorities to the facts, objectively, to decide whether Mr Thomas had a reasonable excuse for the delay in entering into the Newstart Activity Agreement at the relevant time. The Tribunal has carefully examined the submissions by the parties and all the evidence and information before it.
The Tribunal has given weight to the medical expert opinion of Dr Gordon (paragraph 20) obtained by the Tribunal's inquisitorial powers. The Tribunal finds that this opinion provides objective, impartial facts over the relevant period in order to decide that Mr Thomas did not "unreasonably delay" in entering into the Newstart Activity Agreement through his failure to attend a number of interviews with Drake Jobseek. Such a decision is consistent with the authorities when Mr Thomas' account of his condition (paragraphs 10, 12) and Dr Gordon's opinion are considered at the relevant time period.
The Tribunal makes the observation that the only "unreasonable delay" in this case is the inordinate amount of time taken by Drake Jobseek to respond to a Departmental request to identify a former staff member. Such a delay could be considered as prejudicial in Mr Thomas' financial and personal circumstances.
For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Denise Burton
SecretaryDate/s of Hearing 19.2.01
Date of Decision 2.7.01
Solicitor for the Applicant Mr R McQuinlan
Rep. for the Respondent Respondent appeared in person
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