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

The Administrative Appeals Tribunal (AAT) reviewed a decision concerning Mr Scott Thorpe's JobSeeker Payment (JSP). Mr Thorpe sought to have his JSP backdated to 27 January 2022, the date his previous JSP was cancelled, rather than the date determined by the Department of Social Services (the Respondent) and affirmed by the AAT in a prior review. The Respondent had initially decided to pay JSP from 29 March 2022, but later conceded it should be from 27 March 2022. Mr Thorpe contended that the cancellation of his JSP on 27 January 2022 was wrongful and that his payment should commence from that earlier date.

The central legal issue before the Tribunal was whether the decision to cancel Mr Thorpe's JSP from 27 January 2022 was incorrect, which would then allow for the payment to be backdated to that date. This required the Tribunal to consider Mr Thorpe's reasons for failing to report his job search activities as required by his mutual obligation requirements. Specifically, the Tribunal had to assess whether Mr Thorpe had provided satisfactory reasons for his non-compliance, including claims of suspension by his employment services provider, lack of knowledge of online reporting, and the impact of flooding on his usual reporting methods.

The Tribunal found that there was no legislative basis for backdating JSP to a date prior to a written claim, except under specific deeming provisions. To backdate the payment to 27 January 2022, the Tribunal would need to find the cancellation decision to be wrong. While acknowledging Mr Thorpe's difficulties, the Tribunal was not satisfied that he had provided a satisfactory explanation for his failure to report. His claims regarding suspension were inconsistent with past behaviour, and while he experienced difficulties with online reporting, other reporting options were available. Furthermore, the Tribunal determined that the impact of flooding on his usual reporting methods did not prevent him from reporting in the period immediately following 27 January 2022.

Consequently, the Tribunal set aside the previous AAT decision and remitted the matter to the Respondent. The direction was that Mr Thorpe's JSP be recalculated with a commencement date of 27 March 2022, reflecting the Respondent's concession.