Tregear and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1166

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1166

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2829

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRANT  TREGEAR

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Ms N Bell, Senior Member

Date 23 December 2008

Place Sydney

Decision  The decision under review is affirmed.

....................SGD..........................

Ms N Bell 

Senior Member

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance – excuse not reasonable – cancellation - decision under review affirmed.

Social Security Act 1991 section 593,624, ss 624(2) and section 629

Social Security (Reasonable Excuse) (DEWR) Determination 2006

REASONS FOR DECISION

23 December 2008                Ms N Bell, Senior Member

1.       Mr Tregear has received Newstart Allowance (“NSA”) since 1999.

2.      On 20 March 2007 Mr Tregear entered into an Activity Agreement with The Salvation Army Employment Plus (“TSAEP”) and on 15 November 2007 he entered into an Activity Agreement with Advance Personnel Management (“APM”).

3.      Mr Tregear’s Activity Agreement with TSAEP provided that from the period of 20 March 2007 to 20 September 2007, he would undertake six job search contacts per fortnight, attend job search every Tuesday with TSAEP Penrith; complete mutual obligation activities with Wesley Uniting Employment (“WUE”); attend mutual obligation interviews with WUE; accept referrals for suitable positions as identified by TSAEP; and attend interviews with TSAEP to review job search progress. The agreement also stated that Mr Tregear understood that he must comply with those activities and that in addition “I must respond to Centrelink’s requests and the requests of my Employment Service Provider(s)”.

4.      Mr Tregear’s Activity Agreement with APM provided that from the period of 15 November 2007 to 15 May 2008, he would attend APM every Thursday from 9.30am to 12p.m, apply for suitable jobs and attend fortnightly Vocational Rehabilitation Service Appointments with APM.

5.      There is no dispute that Mr Tregear failed to attend the following appointments:

(a) An appointment with the Salvation Army Employment Plus on 16 August 2007;

(b) An appointment with APM on 8 November 2007; and

(c) A job interview with Sydney Logistics on 13 February 2008.

6.       On 26 February 2008, Centrelink decided that Mr Tregear had committed three participation failures in respect of his NSA on 16 August 2007,   8 November 2007 and 13 February 2008, and as a result, an eight week non-payment period would apply with respect to Mr Tregear’s NSA.

7.      On internal review, an Authorised Review Officer (“ARO”) affirmed the decision. Mr Tregear made an application to the Social Security Appeals Tribunal (“SSAT”) for a review of this decision, and on 10 June 2008 the decision was affirmed.

8.      Mr Tregear now seeks review of that decision by this Tribunal.

ISSUE

9.      The legislative scheme relevant to this application may be briefly summarised as follows.

10. Section 593 of the Social Security Act 1991 (“the Act”) provides that in order to be qualified for NSA, a person must satisfy the “activity test” and comply with the terms of a newstart activity agreement, that is, he or she must be actively seeking and be willing to undertake work. Section 624 of the Act sets out the circumstances under which a person is taken to have committed a participation failure, including failing to comply with a reasonable requirement properly notified to the person and failing to satisfy the activity test. A person may provide a reasonable excuse for failure to satisfy the activity test pursuant to section 624(2) of the Act.

11. Section 629 of the Act provides that where there have been three participation failures in a twelve month period NSA will not be payable for a period of 8 weeks. There is no dispute that Mr Tregear had three participation failures in twelve months.

12.     The Social Security (Reasonable Excuse) (DEWR) Determination 2006 (the determination) sets out matters that must be taken into account when determining whether a person has a reasonable excuse for failing to comply with a term of a NSA activity agreement.

13.     The issue to be determined in this matter is whether Mr Tregear had a reasonable excuse for committing any one of the participation failures.

16 August 2007 – the first Newstart participation failure:

14.      Mr Tregear said that the reason he did not attend his appointment on 16 August 2007 was that he did not receive his mail because he was not living at the address that the Secretary had on record. The evidence he gave the SSAT was that at the time he was living at his mother’s house.  In a letter dated 25 June 2008 to the Administrative Appeals Tribunal (the Tribunal), Mr Tregear stated he was living in a caravan park at Emu Plains.  In evidence to the Tribunal, he could not remember when he left his previous address. He said he had his mail sent to another address.  He also said he did not know that he had an appointment.

15.     There are also records in the T-documents of a conversation with an ARO on 3 April 2008, in which Mr Tregear conceded that a Centrelink officer told him that he had an appointment on 16 August 2007 and that when he takes his SU19 claim form to Centrelink for his NSA that they always remind him about his appointments.  

16.     Mr Tregear told the SSAT something different.  He said he “wasn’t living at that address, hadn’t received his mail for quite a long time but he had arranged to collect it.” Mr Tregear made no mention in his evidence to this Tribunal that he had arranged to collect his mail.  Rather, he said he went to his old address a couple of times to check the box.

17.     Mr Tregear’s explanations and his descriptions of his living circumstances and the steps he took to ensure that he received his mail are inconsistent and variable.  When questioned by the Tribunal he was evasive.  There is no reliable evidence on which I can find that he had a reasonable excuse for failing to attend the appointment.  None of the matters listed in the Determination apply to this failure.

8 November 2007- the second Newstart participation failure:

18.     In a letter addressed to the Tribunal on 25 June 2008 Mr Tregear said his reason for failing to attend an appointment with APM on 8 November 2007 was that his daughter was sick and his ex-partner had called him the night before to ask him to care for her on the day. He also said he had no money for public transport, that he tried to borrow some money to get there but was unable to nor could he get a lift as he didn’t have a car seat for his daughter. He said he could not walk to the appointment because he lived too far away and, because his daughter has chronic tonsillitis, he wasn’t going to risk her condition deteriorating by taking her along to the appointment.

19.      When asked by the Tribunal why he didn’t attend, he said that he had telephoned APM on the day and told them that he had to look after his daughter because “my ex-partner was going to do something for compensation for her-self and I had to look after her. I tried telling APM that and they said that’s not a good enough excuse and there’s no records of me having a kid and I had previously told Centrelink many a times and plus my ex-partner told Centrelink and even took in documents stating that I have a daughter.”  Later, he said it was APM who had telephoned him because he had forgotten about the appointment and they phoned him to find out why he had not turned up.

20.     Mr Tregear said he tried to change the APM appointment for another day but when the receptionist told him that his excuse wasn’t good enough and that he had to make it to the appointment he “hung up”.

21.     In cross examination, when asked how often he looks after his daughter, Mr Tregear replied that it varies, and he couldn’t really remember. Mr Tregear did not say that he had to care for her because her mother needed a break.   Nor did he present any evidence that his daughter was sick on the day of the appointment.  Later, Mr Tregear said that his daughter suffers from chronic tonsillitis and was due to undergo an operation at Nepean Hospital.

22.     I am struck by Mr Tregear’s evidence, amongst a raft of inconsistencies, that he had forgotten about the appointment.  It was not he who called APM, he said, but APM who had to call him to find out why he had not attended.  Mr Tregear appears to have simply ignored the appointment and chosen, for whatever reason, to care for his daughter that day.  I find no reasonable excuse in this.  I note again that none of the matters in the Determination apply in these circumstances.

13 February 2008 – the third Newstart participation failure:

23.     It is recorded in the T documents that when APM asked Mr Tregear why he failed to attend his appointment for a job interview with S&D Logistics, he told them it was because he had phoned the employer and asked if the position involved any heavy lifting; the employer told him that it did; he told them that he has a fractured wrist and cannot do heavy lifting and he was allegedly told that it probably isn’t the right job for him.  Mr Tregear told the SSAT he told the employer that he would attend the appointment, but decided not to. Mr Tregear told a Centrelink officer that he did not know what the position involved, other than it involved heavy lifting. He also told the Centrelink officer that it was the employer who telephoned him rather than he telephoning the employer.  When a Centrelink officer spoke to S&D Logistics, he was informed that the position involved packing four to six Streets’ ice-creams into boxes for sale in supermarkets and that they were prepared to let staff work flexible hours and already employ staff with a limited work capacity.

24.     According to Centrelink records, Mr Tregear sustained a fracture to his wrist in May 2005 which was some two years and eight months prior to the interview.  While he gave evidence that the break has not healed fully, and stated that “doctor has explained to me not lift anything that could make my injury worse” (T1/3), he has provided no medical evidence to Centrelink or to the SSAT or to this Tribunal that would prevent him from doing the work as described by the employer.  I note that Mr Tregear referred, during the course of his evidence, to having helped his mother by packing his room.  This undermines his assertion that he could not do the work described by the employer.  I also note that Mr Tregear avoided having his evidence tested by failing to return after an adjournment granted, in mid cross examination, to allow him to move his car to another parking space.

25.     In any event, the issue is whether Mr Tregear had a reasonable excuse for not attending the interview, not whether he had a reasonable excuse for not accepting the job if it were offered to him.  He has provided no sound reason as to why he could not attend the interview.  His views about whether the job would be suitable for him are not relevant to the issue of his ability to attend the appointment.  I conclude that he had no reasonable excuse for failing to attend the appointment.  Again, none of the matters in the Determination apply to these circumstances

CONCLUSION

Mr Tregear has committed three NSA participation failures within a period of one year - namely 16 August 2007, 8 November 2008 and 13 February 2008. In the absence of a reasonable excuse for any one of these participation failures, and pursuant to section 629 of the Act, NSA is not payable for a period of eight weeks.

Decision

26.     The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         ......................................sgd.............................................
  Associate: Felicia Daniele

Date/s of Hearing   14 November 2008
Date of Decision   23 December 2008

Solicitor for the Applicant            Self-represented          

Solicitor for the Respondent       Ms G, Heggen, Centrelink Legal Services Branch.