Thomas; Department of Family and Community Services - [2001] AATA 618

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.
Facts
On 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomas; Department of Family and Community Services

Details

AGLC: Thomas; Department of Family and Community Services [2001] AATA 618
Case: [2001] AATA 618
Decision Date: 2 July 2001

CaseChat Overview and Summary

The matter before the Tribunal was an appeal by Mr Thomas against a decision of the Department of Family and Community Services regarding an unreasonable delay in entering a Newstart Activity Agreement and the imposition of a Newstart Allowance non-payment period. The Tribunal was tasked with determining whether Mr Thomas's failure to attend interviews constituted an unreasonable delay and whether a non-payment period should be imposed. The relevant legislation was the Social Security Act 1991, specifically section 607, which addresses the consequences of failing to enter into a Newstart Activity Agreement.

The central legal issue was whether Mr Thomas's failure to attend interviews with Drake Jobseek constituted an "unreasonable delay" in entering into a Newstart Activity Agreement. This required the Tribunal to interpret the term "unreasonable delay" in light of the provided facts and judicial precedents. Mr Thomas's non-attendance at six consecutive appointments from July to November 1999 was undisputed, but his defence was that his medical conditions, including anxiety, depression, and attention deficit disorder, provided a reasonable excuse for his delay. The Tribunal had to weigh this against the Secretary's satisfaction that Mr Thomas was unreasonably delaying the agreement.

The Tribunal considered the objective of the administrative decision review, the relevant statutory provisions, and the judicial authorities on the meaning of "unreasonable delay". It examined the medical evidence provided by Dr Gordon, which supported Mr Thomas's claim that his conditions impeded his ability to attend the appointments. The Tribunal concluded that Mr Thomas did not unreasonably delay entering into the agreement, as his medical conditions provided a reasonable excuse for his non-attendance. The Tribunal also noted that the delay in Drake Jobseek's response to the Department's request to identify a former staff member could be considered prejudicial. Consequently, the Tribunal affirmed the original decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Facts On 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) 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: 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 DisorderA. 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."

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 Issues The 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 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, MemberSigned: 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