Tran and Secretary, Department of Social Services (Social services second review)
[2016] AATA 550
•29 July 2016
Tran and Secretary, Department of Social Services (Social services second review) [2016] AATA 550 (29 July 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1124
Re
Huu Long Tran
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 29 July 2016 Place Sydney The Tribunal affirms the decision under review.
.................................[sgd].......................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – cancellation of newstart allowance – applicant refused to enter employment pathway plan – failure to enter employment pathway plan resulted in connection failure – no reasonable excuse for connection failure – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 593(1), 605(1)
Social Security (Administration) Act 1999 (Cth) ss 42B, 42E(2), 42U, 80, 118(11)
CASES
Castleman v Secretary, Department of Social Security [1999] FCA 836
SECONDARY MATERIALS
Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No.1)
REASONS FOR DECISION
Dr I Alexander, Member
29 July 2016
Mr Tran, who is now 46 years old, started receiving newstart allowance in 1998.
On 29 January 2015, Mr Tran attended a scheduled connection appointment at Mission Australia Employment Solutions in Bankstown. At this appointment Mr Tran was informed that he was required to enter into an Employment Pathway Plan (EPP) which included a requirement for him to participate in “Work for the Dole”.
Mr Tran refused to sign the EPP on the basis that the work would not be “within the preferred industry of financial services” resulting in a connection failure.
On 17 February 2015, Mr Tran was notified in writing that Centrelink had decided “to stop” his Newstart Allowance from 29 January 2015 because he did not attend his “activity or an appointment” on that date.
On 17 February, Mr Tran was also notified in writing that a decision had been made that he did not have a reasonable excuse for refusing to enter an EPP or an Individual Participation Plan (IPP) on 29 January 2015 and if he did not attend an appointment and enter into a Plan his payment may stop. Also, if he has not met the requirement to enter a Plan more than four weeks since he was first asked to do so, his payment will be cancelled.
On the same day Mr Tan was advised by telephone that he was required to attend a reconnection appointment. Mr Tran advised the Centrelink officer that he refused to attend the reconnection appointment.
On 28 February 2015, Mr Tran was informed in writing that his newstart allowance had been cancelled from 29 January 2015.
On 24 March 2015, Mr Tran lodged a new claim for newstart allowance which was granted with effect from that date.
On 16 November 2015 an Authorised Review Officer (ARO) decided that Mr Tran had a connection failure for 29 January 2015 and a reconnection failure for 18 February 2015 so that he was not connected with a Job Services Australia provider and was therefore not qualified to receive newstart allowance.
On 10 February 2016, the Social Services and Child Support Division (SSCSD) affirmed the decision of the ARO on the basis that because of his refusal to enter an EPP on 29 January 2015, he was not qualified to receive newstart allowance from that date.
In these proceedings Mr Tran seeks review of the SSCSD’s decision.
At the hearing Mr Tran, who was self-represented, stated that he did not require the assistance of an interpreter. He also provided several written submissions.
ISSUES
The power to suspend or cancel Mr Tran’s newstart allowance is provided by s 80 of the Social Security (Administration) Act 1999 (the Administration Act) which provides that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment “the Secretary is to determine that the payment is to be cancelled or suspended”.
The decision to suspend and cancel Mr Tran’s newstart allowance is an “adverse determination” within the meaning of s 118(11) of the Administration Act which provides that if a person’s social security payment is suspended and subsequently cancelled under s 80 “the determination by which the payment is cancelled takes effect on the day on which the payment was suspended”.
Therefore, the determinative issue in this matter is whether on 29 January 2015 Mr Tran was qualified for payment of newstart allowance.
MR TRAN’S EVIDENCE
Mr Tran’s oral evidence was generally unhelpful and somewhat confused. He was frequently unresponsive to specific questions from the Tribunal and tended to make repetitive outbursts that were difficult to understand and not directed at the relevant issues. I note, that in the course of this matter, Mr Tran has steadfastly refused the assistance of an interpreter despite several attempts to encourage him to accept this assistance. At the hearing conducted by the SSCSD Mr Tran refused to participate with an interpreter and would not nominate the relevant language. When the hearing was adjourned to discuss arrangements for an interpreter, Mr Tran decided that he did not wish to continue to participate and requested that the review be determined on his written submissions alone.
However, despite the difficulties, the Tribunal was able to obtain some relevant information.
Mr Tran told the Tribunal that he arrived in Australia in 1991 and has never had any paid employment. He confirmed that in 1998 he qualified for newstart allowance for the first time.
Mr Tran lives alone in assisted housing and has lived in the same apartment for more than 17 years.
Mr Tran stated that he refused to enter the EPP on 29 January 2015 because he considered that the work he was being offered was unsuitable for his particular skills and qualifications in financial services.
When asked to describe his qualifications he referred to a Transcript of Academic Record which listed results achieved through enrolment in an Advanced Diploma of Accounting from 2006 to 2009 at TAFE NSW.
When asked why he has not been able to find employment in the finance industry Mr Tran stated that he was not sufficiently qualified for the kind of work he wanted. He said that he needed additional qualifications, particularly a university degree. In March 2016 he approached Griffith University in Queensland and apparently was told that he did not meet the appropriate entry requirements.
Mr Tran agreed that he was in good health and said he had no other reason to refuse to enter an EPP other than his belief that the work being offered was unsuitable for a person with his particular skills.
Mr Tran provided the Tribunal with several written submissions that were generally unhelpful in that they were somewhat rambling and difficult to understand. They demonstrated Mr Tran’s somewhat naïve understanding of legislation and raised matters which were generally not relevant to particular issues before the Tribunal.
The principal contention from the written submissions appears to be that Mr Tran believes that “Work for the Dole” is unsuitable for his “particular skills, experience or qualification of Management Accountability and Financial Services Profession”.
CONSIDERATION
Section 593 of the Social Security Act 1991 (the Act) sets out the qualification requirements for newstart allowance.
In particular s 593(1)(c) requires that if s 605(1) applies to the person, at all times during the period when a Newstart EPP is not in force in relation to the person, the person is prepared to enter into such a plan.
Also, s 593(1)(e) requires that if the person is required by the Secretary to enter into a Newstart EPP in relation to the period, the person enters into that plan.
Section 605(1) provides that if a Newstart EPP is not in force in relation to a person, the Secretary may require the person to enter into such a plan if the person is receiving, or has made a claim for, a newstart allowance.
A consequence of the provisions in s 593 and s 605 of the Act is that the Secretary may require a person to enter an EPP in order to qualify for newstart allowance.
It is not disputed that on 29 January 2015 Mr Tran was informed that Centrelink required him to enter an EPP and he refused. He also refused to enter an EPP in the period up to 28 February 2015, the date on which he was notified that his newstart allowance was cancelled.
In my view, the fact that Mr Tran refused to enter an EPP on 29 January 2015 and in the subsequent 4 weeks means that he was not “prepared to enter” such a plan, and therefore, did not satisfy s 593(1)(c) of the Act. Also, he could not satisfy s 593(1)(e) of the Act.
It follows that on 29 January 2015 Mr Tran was, prima facie, not qualified for newstart allowance.
However, Division 3A of the Administration Act provides for circumstances in which a person fails to comply with his or her obligations in relation to participation payments, which includes newstart allowance.
Section 42B states that the object of this Division is “to encourage people to participate in employment and engage with employment services” and to “secure compliance with a person’s obligations and requirements in relation to participation payments”. However, this Division is “not intended to punish a person who has a reasonable excuse for failing to comply with such obligations”.
Section 42E provides that the Secretary may determine that a person commits a connection failure, which includes a failure “to comply with a requirement under section 501, 544A, 605 or 731L of the 1991 Act, to enter into an employment pathway plan” [s 42E(2)(b)].
Clearly, Mr Tran’s failure to enter an EPP on 29 January 2015 was a connection failure.
Section 42E(4)(a) provides that the Secretary must not determine that a person commits a connection failure if “the person satisfies the Secretary that the person has a reasonable excuse for the failure”.
Section 42U provides, inter alia, that the Secretary must “by legislative instrument, determine matters that the Secretary must take into account” when deciding whether a person has a reasonable excuse for committing a connection failure.
The relevant Determination is the Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No.1) [the Reasonable Excuse Determination].
Clause 5 of the Reasonable Excuse Determination lists the matters that the Secretary must take into account in determining whether a person has a reasonable excuse.
These matters include the following:
(a)whether the person has access to safe, secure and adequate housing;
(b)the literacy and language skills of the person;
(c)an illness;
(d)a cognitive or neurological impairment;
(e)a psychiatric or psychological impairment;
(f)a drug or alcohol dependency;
(g)unforeseen family or caring responsibilities;
(h)whether the person was subjected to criminal violence;
(i)whether the person was imprisoned.
Paragraph 5(3) states that:
the Secretary must not take into account a matter if the Secretary is not satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement, or the provision of the 1991 Act or the Administration Act, to which the failure relates.
Mr Tran submits that the proposed activities in the EPP were unsuitable for his skills, experience and qualifications in the financial services industry and that this is the reason for his refusal to enter the plan. Mr Tran provided no other reasons and there is no evidence before the Tribunal that there were any barriers with respect to the matters listed in the Reasonable Excuse Determination apart from his language skills.
At the hearing it was clear that Mr Tran had significant difficulty with his oral language and communication skills. However, his copious and detailed written submissions, albeit somewhat misguided, demonstrate sufficient literacy and understanding of the relevant issues. Therefore, I am satisfied that there are no barriers to his capacity to comply with the requirement to enter into an EPP.
Furthermore, Mr Tran’s excuse is not supported by his own evidence. He has not worked in the financial industry in Australia and concedes that he does not have sufficient qualifications for the jobs, he claims he has attempted to source, in his job search activities.
Even if Mr Tran did have significant skills and experience in the financial industry, the Respondent submits that it has been held that recipients of newstart allowance “cannot restrict the type of work they seek or undertake to those categories of work that they prefer or reject work they consider unsuitable”.
In Castleman v Secretary, Department of Social Security [1999] FCA 836 the Federal Court held that newstart allowance is not payable to persons who undermine their employment prospects by limiting the categories of work they seek.
It follows that I am satisfied that Mr Tran did not have a reasonable excuse for refusing to enter an EPP on 29 January 2015.
DECISION
For reasons set out above I am satisfied that from 29 January 2015 to 28 February 2015 Mr Tran was not qualified for the payment of newstart allowance which means that the decision to suspend his payment and subsequently cancel his payment was correct.
The decision under review is affirmed.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ....................................[sgd]....................................
Associate
Dated 29 July 2016
Date(s) of hearing 8 July 2016 Applicant In person Solicitors for the Respondent Department of Human Services
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