Thompson and Secretary, Department of Employment; Secretary, Department of Social Services (Social services second review)

Thompson and Secretary, Department of Employment; Secretary, Department of Social Services (Social services second review) [2017] AATA 689 (15 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3787; 2016/4912
Re:Luke Thompson
APPLICANT

AndSecretary, Department of Employment; Secretary, Department of Social Services
RESPONDENTS

DECISION
Tribunal:Professor R McCallum AO, Member
Date:15 May 2017
Place:Sydney

The decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 20 June 2016 and 18 August 2016 are affirmed.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance – Newstart Allowance cancelled – failure to comply with the activity test and meet the requirements of a job seeker – Newstart Allowance payable from date the written claim was lodged – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 23, 593, 601, 605
Social Security (Administration) Act 1999 (Cth) ss 3, 11, 13, 41, 42, 68, 80, 95, 196, sch 2 cl 3
Administrative Appeals Tribunal 1975 (Cth) s 37
REASONS FOR DECISION
Professor R McCallum AO, Member
15 May 2017
BACKGROUND

The Applicant, Mr Luke Thompson had been paid NewStart Allowance (NSA) from 4 June 2011. His employment service provider was Tursa Employment & Training (Tursa).
Mr Thompson seeks review of two decisions concerning NewStart Allowance (NSA). These decisions were made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT), which are known as AAT first reviews (AAT1).
The AAT1 decisions sprang from earlier decisions which were made by the Department of Human Services which is better known as Centrelink.
First, Centrelink made two decisions on 15 February and 26 February 2016 to cancel Mr Thompson’s NSA from 16 January 2016. I shall call these decisions the cancellation decisions.
Second, Centrelink decided to grant Mr Thompson NSA from 5 April 2016 and not from an earlier date. I shall call this decision the claim decision.
Mr Thompson sought review of the cancellation decisions from an Authorised Review Officer (ARO) and then from AAT1. However, both the ARO and the AAT1 affirmed the cancellation decisions. The decision of the AAT1 was handed down on 20 June 2016 and posted on 27 June 2016.
Mr Thompson also sought review of the claim decision. However, an ARO and the AAT1 affirmed the claim decision. The decision of the AAT1 was handed down on 18 August 2016 and it was posted on the same day.
Mr Thompson appeals to the General division of this Tribunal which is known as AAT second review (AAT2) with respect to both decisions of the AAT1.
THE LEGISLATION
The relevant legislative provisions covering the cancellation decision and the claim decision are found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The provisions governing NSA are complex, however, for present purposes the following summary will suffice.
The general qualifications for NSA are set forth in section 593 of the SS Act. Put briefly, the person must be unemployed, must satisfy the activity test unless the person has been exempted from the activity test, and usually must enter upon a NewStart Employment Pathway Plan (EPP). Details of the activity test are set out in section 601 and attendant provisions of the SS Act. Section 601(1) provides as follows:
Activity test
(1)       Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a)     actively seeking; and
(b)     willing to undertake;
Paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
Details of the EPP are prescribed in section 605 and related provisions in the SS Act.
Section 605(1) provides as follows:
Newstart Employment Pathway Plans—requirement
(1) If a Newstart Employment Pathway Plan is not in force in relation to a person, the Secretary may require the person to enter into such a plan if:
(a)the person is receiving, or has made a claim for, a newstart allowance; or
(b)the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.
The relevant provisions concerning the cancellation decision are set forth in the Administration Act. Section 68 concerns persons who are receiving social security payments, and by virtue of section 3 of the Administration Act and section 23(1) of the SS Act, NSA is a social security payment. Section 68(2) of the Administration Act relevantly provides as follows:
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a)inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
(c)give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.
This provision covers the fortnightly reporting requirements with which recipients of NSA must comply.
Section 95 of the Administration Act provides as follows:
Automatic cancellation—failure to provide statement under subsection 68(2)
(1)       If:
(a)a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b)the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c)the person does not comply with the notice so far as it relates to a particular period; then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(2)       If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
(3)       The day specified under subsection (2) may be before or after the making of the determination.
Subsection 80(1) of the Administration Act provides as follows:
Cancellation or suspension determination
(1)       If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)     who is not, or was not, qualified for the payment; or
(b)     to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
The relevant provisions concerning the claim decision are also set out in the Administration Act.
Section 11 of the Administration Act sets out the general rule that requires persons to lodge claims for social security payments. Section 16 further provides that generally claims must be in writing and in the form specified by the Secretary.
Sections 41 and 42 and subclause 3(1) of schedule 2 of the Administration Act provide that generally social security payments can only be made from the day on which the claim was lodged.
Section 13 of the Administration Act provides exceptions to these general rules concerning the making of claims.
In Mr Thompson’s circumstances, section 13 of the Administration Act relevantly provides as follows:
Deemed claim—person contacting Department about a claim for a social security payment
(1) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…
(3A) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(4) A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of fax, computer equipment or other electronic means.
THE HEARING
The two matters concerning the claim decisions and the cancellation decision were heard together in the one hearing.
Mr Thompson attended the hearing by telephone. He gave evidence by affirmation over the telephone.
Mr Thompson acknowledged that he had received all of the documents, including the email from Tursa dated 21 April 2017.
CONSIDERATION: THE CANCELLATION DECISIONS
On 15 February 2016, Centrelink made an automatic decision pursuant to section 95 of the Administration Act, which I have quoted above, to cancel Mr Thompson’s NSA from 16 January 2016. According to Centrelink’s records, Mr Thompson had failed to make his fortnightly reports on time from 16 January 2016.
Mr Thompson contacted Centrelink on 26 February 2016 and completed his fortnightly reporting requirements. His NSA was then restored.
However, on that same day, 26 February 2016, Mr Thompson contacted Centrelink’s participation solutions team. Centrelink reviewed Mr Thompson’s circumstances and made a determination cancelling Mr Thompson’s NSA effective from 16 January 2016 on the grounds that he was not qualified to receive NSA. This determination was made pursuant to subsection 80(1) of the Administration Act which I have reproduced above.
However, in its decision, the AAT1 assumed that the determination of 26 February was an affirmation or reinstatement of the automatic decision of 15 February 2016. Accordingly, the AAT1 held that the decision to cancel Mr Thompson’s NSA pursuant to section 95 of the Administration Act was correct.
In my view, the determination of 26 February 2016 was a separate and distinct decision to cancel Mr Thompson’s NSA on qualification grounds.
Document 22 of the documents which Centrelink has provided to this Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), which are known as the T-documents, contains computer screen records which set out the 26 February 2016 determination, at page 138, as follows:
After a careful review of Mr Thompson's circumstances I have determined that he does not meet the definition of a job seeker, and therefore is not entitled to NSA.
Mr Thompson has demonstrated a history of reporting late without any acceptable reason (i.e. a reason supported by Operational Blueprint 001-09040030. This has occurred repeatedly - with cancellations due to late lodgement recorded on XDS for 12 Sep 2015, 24 Oct 2015, 21 Nov 2015 and 16 Jan 2016.
On each occasion Mr Thompson has been unable to report due to outstanding compliance action. Mr Thompson however has made no effort to contact the Participation Solutions Team to discuss his reasons for non-compliance that I can identify. Failures have been submitted primarily for refusal to enter a Job Plan with his employment services provider and/or complying with requirements in his Job Plan. I note Mr Thompson has not signed a new Job Plan since 6 July 2015, and it appears his employment services provider has been trying to have his Job Plan updated since at least 28 August 2015. This means Mr Thompson has repeatedly refused to sign his Job Plan for a period totalling 5 months.
Where a customer's payments is cancelled certain types of compliance action are rejected immediately without any investigation. This has occurred for the failures dated 28 August 2015, 11 September 2015, 25 September 2015, 28 October 2015, 12 November 2015, 03 December 2015, and 21 January 2016. This repeated pattern of cancellation and restoration suggests Mr Thompson may be deliberately allowing his payments to cancel in order to avoid any scrutiny around his non-compliance and refusal to enter a Job Plan.
I have called [the] Employment Consultant from TURSA (Mr Thompson's employment services provider) who affirmed my suspicions may have merit. She advised Mr Thompson regularly attends appointments with her following a restoration, and tells her he does not need to do Work for the Dole, will not sign a Job Plan, and "Centrelink is OK with this."
I have also carefully reviewed the decisions to restore, and at no time has there been any suggestion that there was any other circumstances that may explain why Mr Thompson could not call PST, why he allows his payments to cancel, or how [he] is affording his regular expenses during the periods he is not reporting and/or is cancelled.
I am satisfied, after reviewing the information before me, that Mr Thompson was not eligible for restoration today as he has not demonstrated that he is genuinely looking for work, has been participating with his employment services provider and meeting any Mutual Obligation Requirements in the period since cancellation. I have subsequently re-cancelled his payment from 16 January 2016 under s80 SSAA 1999.
The issue before me is whether Centrelink was correct to cancel Mr Thompson’s NSA because on 26 February 2016 he was not qualified to receive NSA.
In his evidence, Mr Thompson denied that he had reported late from 16 January 2016 onwards. It was put to Mr Thompson that Centrelink records showed that he had failed to report.
Mr Thompson referred to a screen shot from his computer which is before this Tribunal which he asserted showed that he had reported on time.
In my view, a screen shot of internet history, without more, is of little weight in determining whether Mr Thompson reported in a timely manner. It is possible to manufacture internet history without actually reporting online to Centrelink.
Having regard to the oral and documentary evidence before me, I find that Mr Thompson failed to fulfil his reporting requirements on time for the following periods:
·21 November 2015 to 4 December 2015,
·5 December 2015 to 18 December 2015,
·19 December 2015 to 1 January 2016,
·16 January 2016 to 29 January 2016,
·30 January 2016 to 12 February 2016, and
·13 February 2016 to 26 February 2016.
In cross-examination, Mr Thompson was directed to examine several notes from Tursa which are recorded in computer screen records in Document 24 of the T-documents.
Mr Thompson was taken to a note from Tursa dated 11 September 2015. This note stated that Mr Thompson had refused to enter into a job plan for half-day workshops.
Mr Thompson said that this note was not correct because he was negotiating the job plan with Tursa. He said that he was able to cross things out and initial them as they were being negotiated.
Mr Thompson was directed to examine a passage from a note from Tursa dated 12 November 2015. The passage was as follows:
EA also advised JS he would need to agree to attend job club, jobplan updated and JS refused to enter into this agreement and declined cooling off period.
In response, Mr Thompson stated that he didn’t refuse to enter into the agreement, but rather, he wanted more information as to what job club would entail. He also indicated that he did not know what the “cooling off” period was referring to.
Mr Thompson was asked whether he agreed that he again refused to enter into a job plan. He said “yes”, but that he went to Centrelink to determine what job club was.
Mr Thompson was directed to a passage in a note from Tursa dated 3 December 2015. The passage was as follows:
EA asked why we kept having the same app and JS advised he is not getting financially penalised for not attending job club using the method of not lodging being exited and reinstated so there was no reason for him to do this.
In response, Mr Thompson said that no one has any issues with him at Centrelink and that only the people at Tursa have issues with him. He claimed that the employee he was dealing with at the job service provider “twisted my words” and was deliberately trying to get his payments cancelled.
Pursuant to section 196 of the Administration Act, Centrelink requested Tursa to answer a series of written questions. Tursa provided its answers in an email dated 21 April 2016.
In cross-examination, Mr Thompson was directed to paragraph two of this email which is as follows:
Mr Thompson advised the managing EA at the time that he was not getting financially penalised by DHS as a result of refusing to enter into a job search plan or supply appropriate job search evidence and engage in appropriate job search activities and until such time as he incurred a financial penalty he felt no motivation to undertake the above. EA put to Mr Thompson that she was aware of what he was doing as a pattern had become apparent where he would intentionally fail to report in the two consecutive DHS reporting periods after compliance action and then contact DHS on the 29^th day and get himself connected again but by this time the compliance action had been ended in the system when jskr exited. Job seeker stated again that as no money had been "taken" from him by Centrelink he must be doing 'nothing wrong' and until they did he would not change his actions.
Mr Thompson rejected the substance of this paragraph. Mr Thompson reiterated that he wasn’t refusing to enter into a job plan, Tursa was refusing to negotiate.
Mr Thompson stated that the comment that he was not motivated to find work was incorrect and that he was doing everything right but had issues with the job service provider.
Paragraph 4 of the Tursa email is as follows:
A) Discussions took place with job seeker on several occasions between the period 28/08/15 to 28/01/2016 where it was pointed out to Mr Thompson that he was supplying insufficient job search (not enough to meet his obligations in Job Search Plan); or that Job Search was exactly the same as it had been in the preceding month/s; and that Mr Thompson needed to use a variety of job Search methods and seek suitable and appropriate employment as per the Social Security Act. Mr Thompsons job search contacts were to large recruitment organisations in other states/locations well outside of his commutable distance and he also stated that he 'could not accept an offer of employment if one was made as he had 'no transport and needed someone to look after his house' (notes from appointment on 12/11/2015).
B) Mr Thompson signed a Job Plan at initial interview in May 2015 agreeing to job search and attend regular contact appointments but then repeatedly refused to comply with the Job Plan, vary his agreement and/or enter into a new agreement when the Job Plan expired or upon entering a new phase of participation (Mutual Obligation - WFD). Job seeker also repeatedly failed to supply appropriate or sufficient job search evidence to demonstrate he was compliant with the requirements of his Job Search Plan. Mr Thompson also failed to attend regular contact appointments supplying a valid reason or reasonable excuse. These events resulted in the Managing EA reporting non-compliance as per our contractual requirements.

Having regard to the evidence before me, I find that as of 26 February 2016, Mr Thompson was not qualified to receive NSA because he was not fulfilling the requirements of a job seeker. I further find that he failed to comply with the requirements of the activity test. I have noted above the many times Mr Thompson was late in fulfilling his reporting requirements. Mr Thompson offered no excuses for his late reporting. On the contrary, he said that he had reported on time, certainly from 16 January 2016. From the records before me, as of 26 February 2016, Mr Thompson had not signed an updated job plan since at least 28 August 2016 despite the efforts of Tursa.
Accordingly, the decision of the AAT1 is affirmed, albeit on different grounds.
CONSIDERATION: THE CLAIM DECISION
On 18 March 2016, Mr Thompson contacted the ARO to discuss the cancellation decisions. Centrelink accepts that this contact was a notification of Mr Thompson to claim NSA.
On 18 March 2016, Centrelink sent an online letter to Mr Thompson about his intention to claim NSA. The material portions of the Centrelink online letter read in part as follows:
Confirmation of your intent to claim a payment and a concession card
We are writing to you to confirm that we were contacted on 18 March 2016 about your intent to claim a payment and a concession card.
What you need to do
To make sure that you receive your payment and concession card, you must complete your claim or Customer Declaration Form and return it with any requested documentation by 01 April 2016. If there is any reason why you cannot do this, please contact us immediately.
Please note that some payment types that are not covered by social security law may have a later closing date to lodge a claim. Please check the relevant claim form to see when you need to finalise your claim.
You can return your completed documents by:
·going to my.gov.au and signing in to your Centrelink online account. You can upload your documents (up to 5MB) by selecting 'Documents and Statements' from the menu. If you do not have a myGov account, you will need to create one and then link it to your Centrelink online account.
·using one of our Express Plus mobile apps and selecting 'Upload Document' from the menu. If you do not have an app, you can download one to your mobile device from the App Store or Google Play(TM). App Store is a service make of Apple Inc., registered in the U.S. and other countries. Google Play is a trademark of Google Inc.
·mailing them to (no postage stamp required if posted in Australia)
Department of Human Services
Centrelink
Reply Paid 7800
CANBERRA ACT 2610
·returning them to one of our service centres
Please note that identity documents can only be provided at a service centre or by mail because we need to see the original documents. If you mail your original documents to us_, we will return them to you by registered mail.
What you need to know
Once we have received your claim and all requested documentation, we will make a decision about your eligibility and contact you to let you know.
On 22 March 2016, Centrelink sent Mr Thompson a sms stating that he had an online letter, that is, he had been sent the notice dated 18 March 2016.
On 5 April 2016, Mr Thompson lodged an application in writing for NSA, and on 8 April 2016 NSA was granted to Mr Thompson from 5 April 2016.
Mr Thompson argued before this Tribunal that his NSA should have been backdated to 18 March 2016 when he contacted Centrelink.
In his evidence, Mr Thompson said that he phoned Centrelink on 24 March 2016 and said that he could not access the online letter about which he had been notified by the sms of 22 March 2016. Mr Thompson said that the first paragraph of the letter was read out to him. However, the portion of the letter explaining that he had to make a claim in writing was not read out to him.
In cross-examination, Mr Thompson was asked how many times had his NSA been cancelled, and how many times had he re-applied for NSA. Mr Thompson said that he had made only one prior claim. It was put to Mr Thompson that he had made a number of claims for NSA. Mr Thompson said that this was just his job service provider “playing silly games.”
The issue which this Tribunal is required to decide is whether the start date of Mr Thompson’s NSA should have been 18 March 2016.
The law on social security claims is quite strict.
As I have noted above when summarising the legislation, sections 11 and 16 of the Administration Act make it clear that in Mr Thompson’s circumstances his claim for NSA had to be in writing.
Sections 41 and 42 and subclause 3(1) of schedule 2 of the Administration Act provide the rule that social security payments can only be made from the date of the written claim.
Section 13(1) of the Administration Act which I have set out above, modifies the general rule by providing that if an applicant who has contacted Centrelink about a claim puts in a written notice within 14 days, the social security payment will commence from the day of contact.
Mr Thompson contacted Centrelink on 18 March 2016, however, he did not make a claim in writing until 5 April 2016. The online notice extracts which I have set out above, clearly explain that if Mr Thompson wished his NSA to commence on 18 March 2016 he had to make a written claim by 1 April 2016, that is, within the 14 day period.
Section 13(3A) of the Administration Act which I have set out above, provides that if a person lodges a written claim more than 14 days after contacting Centrelink, but not more than 13 weeks after the date of contact, “in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier”, the social security payment may be backdated to the date of contact.
At the hearing, Mr Thompson was asked whether any special circumstances existed concerning either the cancellation decisions or the claim decision. Mr Thompson said that he did not wish to discuss his private life before this Tribunal. In other words, he did not wish to argue special circumstances with respect to either the cancellation decisions or the claim decision.
I find that Mr Thompson did have experience of the operation of the social security system concerning NSA when he contacted Centrelink on 18 March 2016. As he did not put in a written claim for NSA until 5 April 2016, that is, after the 14 day period, the correct start date for his NSA was 5 April 2016.
Accordingly, I affirm the decision of the AAT1.
DECISIONS
The decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 20 June 2016 and 18 August 2016 are affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate
Dated: 15 May 2017

Date(s) of hearing: 27 April 2017

Applicant: By telephone

Solicitors for the Respondent: Charlotte Alexander, Department of Human Services

[2017] AATA 689

15 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice

Date(s) of hearing:	27 April 2017
Applicant:	By telephone
Solicitors for the Respondent:	Charlotte Alexander, Department of Human Services