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

[2009] AATA 630

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0265

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JIM TSOUKAS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION [2009] AATA 630

Tribunal Mr B.H. Pascoe, Senior Member

Date12 August 2009

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

REASONS FOR DECISION

25 August 2009

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 16 December 2008.  This decision was to cancel newstart allowance (NA) of the applicant, Mr J. Tsoukas from 14 March 2008.  It set aside a prior decision of the respondent, to cancel the allowance from 1 March 2008. 

2.      At the hearing Mr Tsoukas was unrepresented.  The respondent was represented by Mr T. De Uray, an advocate with Centrelink.  At the conclusion of the hearing the Tribunal affirmed the decision under review for reasons given orally.  On the following day Mr Tsoukas requested written reasons for the decision. 

3.      The cancellation of NA arose from a failure by Mr Tsoukas to attend job capacity assessment appointments on 18 December 2007, 21 January 2008 and 19 March 2008.  Mr Tsoukas was initially granted NA from 20 February 2006 after his entitlement to workers’ compensation ceased after a two year period.  At regular intervals thereafter he lodged medical certificates from his general practitioner stating that he was not able to work more than eight hours per week and that his condition was likely to improve within two years.  As a result of these certificates he was exempted from the activity test.  Subsequently, he was advised to attend a job capacity assessment to assist in identifying barriers to employment, current and future work capacity and interventions which may be appropriate to improve work capacity. 

4.      It is not in dispute that Mr Tsoukas was advised of the appointments for the job capacity assessments, and the consequences of not attending such assessments being a breach of the Social Security Act 1991 (the Act) which could lead to cancellation of the NA.  It is not in dispute, also, that he failed to attend such appointments. 

5.      Before the SSAT and this Tribunal, Mr Tsoukas maintained that he had a reasonable excuse for not attending the appointments.  He said that, after his experience with compensation doctors, he was reluctant to attend any assessment which may have an effect on his future employment prospects as he was committed to re-entering the workforce as soon as he was able.  He said that he regularly sought a meeting with an appropriate person at Centrelink to obtain a full explanation of the process and to explain his concerns, to no avail. 

6.      It is difficult to accept this explanation, provided at some length, as a reasonable excuse.  In the letter from Centrelink of 14 March 2008, advising Mr Tsoukas that an appointment had been made on 19 March 2008, the commencing sentence stated This letter has been issued to you as per your request during this meeting. It went on to say that Your medical certificate is still at pending stage until this appointment is attended.  The attached letter of the same date, giving details of the appointment, commenced with the words To help us offer you the most suitable payment and services, we need more information about your ability to work and/or your medical condition.  This letter then stated clearly the potential consequences of not attending the appointment. 

7.      While the primary objection by Mr Tsoukas to attending such an assessment was the potential to limit future job prospects, it is difficult to see how this could happen.  As at March 2008, Mr Tsoukas was 55 years of age and had not worked for some four years.  The first two of those years he was in receipt of workers’ compensation.  For the whole of the next two years he continued to produce medical certificates stating his incapacity for work.  It is impossible to imagine that a job capacity assessment in 2008 could have any detrimental effect on future job prospects.  Either such assessment would confirm the opinion of his own doctor or it would conclude that, perhaps with some training, he was capable of entering employment.  Both within the terms of the legislation and as an appropriate policy, it is reasonable to require an independent job capacity assessment where a person, by production of medical certificates from a general practitioner, seeks to be exempt from the usual activity tests as a condition of NA.  It is perhaps relevant to note that, while the Tribunal is not suggesting that the general practitioner was not diligent in issuing certificates, a certificate was provided by that general practitioner dated 14 November 2008 stating that Mr Tsoukas was unfit to attend a job capacity assessment from 17^th March 2008 to 21^st March 2008 inclusive as he was suffering from migraine headaches.  How such a certificate could be issued eight months after the period referred to is difficult to understand, particularly as no prior reference to migraine problems had been made. 

8.      As a consequence of the foregoing, I find that Mr Tsoukas was in breach of the requirements of the Act for entitlement to NA without a reasonable excuse and the decision under review should be affirmed. 

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member
Signed:  Leah Berardi
  Clerk

Date of Hearing  12 August 2009
Date of Decision  12 August 2009
Advocate for the Applicant          Jim Tsoukas
Advocate for the Respondent       Tim De Uray, Legal Services Centrelink