Vatarescu; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1717
•29 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1717
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/1430
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
ANDREI VATARESCU
Respondent
DECISION
Tribunal Mr S. Webb, Member Date29 August 2007
PlaceCanberra
Decision The decision of the Social Security Appeals Tribunal is set aside, and in place thereof the Tribunal decides that Dr Vatarescu did not have a reasonable excuse for failing to comply with notified requirements and, therefore, committed a Newstart participation failure on 11 December 2006.
.............signed.................................
Mr S. Webb, Member
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2007/1430
General Administrative Division )
Re: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Applicant
And: ANDREI VATARESCU
Respondent
DIRECTION [2007] AATA 1717
TRIBUNAL: Mr S. Webb, Member
DATE: 5 September 2007
PLACE: Canberra
DIRECTION: The Tribunal directs the Registrar, pursuant to subs. 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1. on the final page, following paragraph 30, delete:
‘Representative for the Applicant Self
Solicitor for the Respondent Justin Davidson
Counsel for the Respondent Lorraine Walker’; and
2.replace the deleted text with the following correction:
‘Solicitor for the Applicant Justin Davidson
Counsel for the Applicant Lorraine Walker
Representative for the Respondent Self’.
………signed………
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance – notice - failure to comply with notified requirements – reasonableness of notice - meaning of 'reasonable excuse' – excuse not reasonable – decision set aside
Social Security Act 1991 ss 605, 615, 624
Social Security (Administration) Act 1999 ss 63, 64
Social Security (Reasonable Excuse) (DEWR) Determination 2006
Telstra Corporation Ltd v Administrative Appeals Tribunal & Anor [2003] FCA 102
Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988
REASONS FOR DECISION
29 August 2007 Mr S. Webb, Member 1. Andrei Vatarescu is a Newstart Allowance recipient. He was required to attend an appointment with his Job Network Member to renegotiate a Newstart Activity Agreement. He failed to do so but emailed the Job Network Member proposing alternative arrangements. A Newstart participation failure was entered against him. Dr Vatarescu sought review of that decision without success. The matter progressed to the Social Security Appeals Tribunal. The SSAT decided that Dr Vatarescu had a reasonable excuse for not attending the appointment and set aside the decision. The Respondent Secretary has applied for review of the SSAT decision.
2. The following facts are not disputed and I find as follows. Dr Vatarescu holds a PhD in Optical Physics and lives at Braddon in the ACT. He has been granted Newstart Allowance intermittently since 1991 and has been in receipt of that Allowance since November 1994. His Job Network Member and Employment Service Provider during all relevant periods was the Caloola Centre (“Caloola”) located at Bowes Street, Woden. Dr Vatarescu entered a ‘Participation Agreement’ with the Secretary on or about 21 December 2005. On 28 November 2006, Centrelink sent Dr Vatarescu a letter notifying him that he was required to attend an appointment with Caloola at 9.00am on 11 December 2006 to negotiate an Activity Agreement.[1] On 30 November 2006, Dr Vatarescu sent an email to Caloola stating:
“Given the complete inability demonstrated by Caloola Centre in providing any constructive suggestion in my unemployment case, I see no reason to get on a bus at 8.30 am to come to Woden on Monday 11 December in order to sign a so-called Activity Agreement which is nothing but a worthless piece of paper.
So, you should leave the Activity Agreement at the reception desk as it is likely that I will be coming to Woden one afternoon between Monday 11 Dec. and Wednesday 13 Dec.”[2]
[1] T14.
[2] T5 folio 31.
3. Dr Vatarescu did not receive a response to his email. On 11 December 2006, he did not attend the scheduled appointment at Caloola. He telephoned Caloola later that day to ascertain whether the Activity Agreement was available for him to collect. It was not. On 15 December 2006, Centrelink notified Dr Vatarescu that unless he had a reasonable excuse for failing to attend the appointment with Caloola, he “may have committed a participation failure.”[3] On 20 December 2006, Dr Vatarescu attended Caloola and contacted Centrelink. He stated his reasons for not attending the appointment (that Caloola was not catering for his specialised needs) and requested a transfer to another Employment Service Provider.[4] Centrelink applied a participation failure. On 21 December 2006, Dr Vatarescu requested a review of the participation failure decision. On 12 January 2007, the decision was affirmed by the original decision maker.[5] Dr Vatarescu requested review by an authorised review officer, setting out his reasons and concerns in relation to Caloola.[6] On 1 February 2007, the review officer decided to affirm the decision.[7] Dr Vatarescu applied to the SSAT for review.[8] On 15 March 2007, the SSAT decided that:
“Dr Vatarescu did not unreasonably fail to attend an interview with his job network provider and a participation failure was not correctly applied.”[9]
[3] T12 folio 70.
[4] T17 folio 101.
[5] T11 folios 65-66.
[6] T8.
[7] T9.
[8] T7.
[9] T2 folio 2.
4. The issue for determination is whether Dr Vatarescu committed a Newstart participation failure when he failed to attend an appointment with Caloola on 11 December 2006.
5. Dr Vatarescu maintains that he did not commit a participation failure because he had a reasonable excuse for not attending the scheduled appointment with Caloola. He says that he engaged in negotiation of an Activity Agreement by email on 30 November 2006, “bearing in mind the previous fruitless interactions I had had with that particular Job Network Member.”[10] Dr Vatarescu asserts that the job network scheme does not cater for his science and technology needs in relation to obtaining suitable professional employment. Furthermore, he says that the employment service provided by Caloola in relation to non-professional areas of employment has not been satisfactory and that his complaints to the Department of Employment and Workplace Relations (the ‘Department’) have gone unanswered and have not been addressed. Dr Vatarescu asserted that his continuing involvement with Caloola compromised his integrity and may render him complicit in a fraud against the Commonwealth. Caloola obtained Commonwealth funding to assist him to obtain employment, he says, but after an extended period of months had not referred him to any employment of any kind. Dr Vatarescu told me that he did not want to be a party to an agreement to continue the unsatisfactory arrangement with Caloola.
[10] Respondent’s written submission, 25 June 2007.
6. In Dr Vatarescu’s submission, he attended an interview with Caloola in August 2006 to renegotiate an Activity Agreement and made an arrangement to collect the Agreement from the Caloola reception, which he did. The Agreement, he says, delivered no referrals for employment of any kind and was worthless. Thus, Dr Vatarescu contends that his email response to the notice he received concerning the appointment on 11 December 2006 was both timely (being sent immediately upon receipt of the notice) and reasonable (proposing an alternative mechanism for finalisation of the Activity Agreement that was consistent with the approach adopted in August 2006). On that basis, Dr Vatarescu asserts that he did not commit a Newstart participation failure, and if there was any failure, it was on the part of Caloola and the Department.
7. As will appear, I do not agree.
8. Under the Social Security (Administration) Act 1999 (the ‘Administration Act’), the Secretary may formally notify a Newstart recipient that he or she is required to attend a particular place for a particular purpose within a specified time (subs 64(1) and (2)). Under the Social Security Act 1991 (the ‘SS Act’), if a Newstart recipient fails to comply with such a notice, the person commits a Newstart participation failure if the notice was reasonable and it contained a statement to the effect that failure to comply could result in a Newstart participation failure or other failures are made out (subs 624(1) of the SS Act). However, if the person satisfies the Secretary, or presently this Tribunal, that he or she had a reasonable excuse for the failure to comply with the notice, the failure is not a Newstart participation failure (subs 624(4)). Subs 624(2A) requires the Secretary to determine by legislative instrument the matters that must be taken into account when deciding whether a person had a reasonable excuse for committing a Newstart participation failure. For that purpose the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (the ‘Determination’) came into effect on 1 July 2006, and subclause 4(2) sets out the relevant matters that must be taken into account. However, as subs 624(2B) of the SS Act makes clear, the Determination does not limit the matters that may be taken into account.
9. Thus it can be seen that four questions arise:
(a)Was proper notice issued in compliance with subs 64(2) of the Administration Act?
(b)For the purposes of s.624 of the SS Act, was the notified requirement reasonable?
(c)Did the notice state that failure to comply may give rise to a Newstart participation failure?
(d)Did Dr Vatarescu have a reasonable excuse for failing to comply with the notice?
Was proper notice issued in compliance with subs 64(2) of the Administration Act?
10. The answer to this question is, yes. The notice at T14 is compliant with s.64 of the Administration Act. There is no dispute that the notice was sent to Dr Vatarescu, who was receiving Newstart Allowance at the time, by pre-paid post on 28 November 2006. Nor is it disputed that Dr Vatarescu received the notice.
Was the notified requirement reasonable?
11. The notice was dated 28 November 2006 and required Dr Vatarescu to attend an appointment at 9.00am on 11 December 2006 at Caloola in Bowes Street, Woden, and “to enter an Activity Agreement” negotiated with the Job Network Provider.[11]
[11] T14 folios 78-79.
12. Dr Vatarescu asserted that travelling to Caloola took several hours and, as he was required to travel there most days, attending Caloola cost him $30-$40 per week, which he could not afford. I do not accept this submission. Dr Vatarescu told me that he did not attend Caloola because he preferred using the internet facilities at the National Library, where he attended most days. The email he sent to Caloola on 30 November 2006 confirms that Dr Vatarescu did not expect to be attending Caloola every day in the week of 11 December 2006. Furthermore, Dr Vatarescu told me that it would take approximately 30 minutes to travel from his home in Braddon to Woden by bus and that the cost of the return bus fares was $5 or $6 dollars. Thus, on his own evidence, his submission is not made out.
13. I am satisfied that the practical and logistical requirements inherent in the notice were not unreasonable. I am satisfied that it is not unreasonable to require Dr Vatarescu to travel for 30 minutes by bus to attend an interview with his Employment Service Provider. Nor am I persuaded that the bus fares were the cause of any financial hardship to Dr Vatarescu beyond that which anyone attempting to live on a social security payment may experience. Dr Vatarescu did not adduce any evidence concerning his financial circumstances. The notice provided him with at least 12 days forewarning of the appointment, and that is not an unreasonable period.
14. Dr Vatarescu submitted that it was unreasonable to require him to attend an appointment with Caloola for the purpose of negotiating an Activity Agreement, when previous such agreements had not delivered any benefits to him and had not resulted in even one referral into employment. I do not accept that submission. Under s.605 of the SS Act, the Secretary is empowered to require a person such as Mr Vatarescu to enter into an Activity Agreement. The terms of such an agreement may be reviewed from time to time at the request of either party (subs 606(5)). The two requirements in the notice sent to Dr Vatarescu were that he was to attend the appointment and enter an Activity Agreement negotiated with Caloola. As it appears to me, it is reasonable to require a Newstart Allowance recipient to attend a periodic appointment with a designated Employment Service Provider for the purpose of entering into a negotiated Activity Agreement under the applicable legislative provisions. I am not persuaded that attending a meeting with Caloola in August 2006 obviated or rendered unreasonable the requirement to attend the appointment on 11 December 2006.
15. If Dr Vatarescu had issues concerning Caloola’s performance under the terms of a previous agreement, then it would have been appropriate for him to raise these in the context of negotiating a further agreement. It was open to Dr Vatarescu to request a review of his Activity Agreement at any time. If he chose to seek a transfer to a different Job Network Member or Employment Services Provider it was for Dr Vatarescu to take that matter up with Caloola and the Department. As I understand it, Dr Vatarescu did raise such issues with Caloola and the Department, but was unhappy with the response he received. That is a matter for Dr Vatarescu to take up with the Secretary or other appropriate authorities if he is not happy with the manner in which his complaints were dealt with or addressed. Issues of that character do not render unreasonable the requirements set out in the 28 November 2006 notice.
16. I am satisfied the notified requirements were reasonable and so find.
Did the notice state that failure to comply may give rise to a Newstart participation failure?
17. The answer is, yes. The notice plainly states that failure to comply with the notified requirements without a valid reason may constitute a Newstart participation failure.[12]
[12] T14 folio 80.
Did Dr Vatarescu have a reasonable excuse for failing to comply with the notice?
18. Dr Vatarescu’s stated reasons for failing to comply with the notice were that Caloola failed to provide a satisfactory level of employment service and, after the period of 20 months without one job referral, despite negotiating Activity Agreements on 21 December 2005 and (allegedly) in August 2006, his future participation in a further Activity Agreement involving Caloola would be futile and may potentially render him complicit in a fraud against the Commonwealth.
19. However, having heard Dr Vatarescu at length and having regard to the matters set out in the Determination and other relevant matters in the particular circumstances, I am not satisfied that Dr Vatarescu has a reasonable excuse for his failure to comply with the notice.
20. The test of reasonableness is an objective one that applies to the personal reason of the person for failing to comply at the time. It is not for the Tribunal to assess the circumstances at large and, with the value of hindsight, provide a reason (Telstra Corporation Ltd v Administrative Appeals Tribunal & Anor [2003];[13] Secretary, Department of Employment and Workplace Relations v Real [2007][14]).
[13] FCA 102 at [11].
[14] FCA 988 at [6].
21. Dr Vatarescu’s circumstances are not within the matters that I must take into account pursuant to the Determination. However that is not the end of the matter.
22. On the evidence before me there was nothing preventing Dr Vatarescu from attending the appointment with Caloola at the scheduled time and negotiating a further activity agreement. He was not rendered unable to attend by anything unforeseen or beyond his control. Nor was he unwell. The fact is, by his own account, he decided that he would not attend the appointment as a matter of convenience, and in order to “bring matters to a head” with Caloola and the Department.
23. I am not satisfied that failing to comply with the notified requirements was a reasonable way of attempting to resolve the difficulties he perceived in his dealings with Caloola and the Department. As it appears to me, there were other more appropriate avenues open to Dr Vatarescu to pursue his issues and to escalate his complaints.
24. Concerns about an unsatisfactory outcome of a prior activity agreement and difficulties achieving a desirable level of employment service, are matters that should be taken up with the service provider in the context of negotiating a satisfactory approach and level of service in regards to an activity agreement. Unemployment is the unfortunate context in which these matters must be considered. The arrangements between the Department, Centrelink and Employment Service Providers, in relation to Newstart Allowance, are to assist unemployed persons to find employment. Failure to achieve that objective within a period is not a reasonable excuse for failing to comply with formally notified requirements.
25. If a Job Network Member fails to provide a satisfactory level of service to a jobseeker, it is open for the jobseeker to take up any concerns with the Job Network Member. Having done that, if the jobseeker is still not satisfied then it lies open for the jobseeker to raise his or her concerns with the Department. A case may be made for transfer to another Job Network Member. It is reasonable to expect that a dissatisfied jobseeker, such as Dr Vatarescu, would explore all legitimate and appropriate avenues to address the cause of his or her dissatisfaction. However, I am reasonably satisfied that Dr Vatarescu had not done so prior to 11 December 2006. It appears that Dr Vatarescu raised complaints against Caloola with the Department and obtained a response dated 29 January 2007.[15] I understand that he is dissatisfied with the response. Nevertheless, there is a procedure to be followed in pursuit of any complaint against Caloola, and even though he may be frustrated by the bureaucratic nature of the processes involved, those are the appropriate mechanisms open to him. Deliberate non-compliance with the requirements of which he was notified on 28 November 2006, was not a reasonable option for Dr Vatarescu in the circumstances, nor is it a reasonable excuse.
[15] Exhibit A1.
26. I do not accept Dr Vatarescu’s submission that he set out an alternative proposal for negotiating an activity agreement with Caloola in the email he sent on 30 November 2006. That email does not set out a proposal for any negotiation but clearly states Dr Vatarescu’s opinion that the activity agreement is “nothing but a worthless piece of paper.”[16] His ‘proposal’ to collect the agreement at an unspecified later time does not constitute an alternative process for negotiating a satisfactory agreement, especially in the light of the concerns about the performance and value of his previous Activity Agreement.[17] Dr Vatarescu pointed to the process allegedly adopted in August 2006, whereby he collected an agreement from the Caloola reception, as a reason to explain his ‘proposal’ in November 2006. That submission has no merit. By Dr Vatarescu’s own account, which is not supported by any documentary evidence, he attended a meeting with Caloola in August 2006 and subsequently collected the agreement (which is not in evidence). Plainly enough, even if I accept his account as true, the process followed in August 2006 involved a meeting that resulted in an activity agreement, which Dr Vatarescu subsequently collected. That process is substantially different than that proposed by Dr Vatarescu in his email on 30 November 2006.
[16] T15.
[17] T15.
27. Dr Vatarescu agreed that his email was not for the purpose of having the appointment rescheduled to another time, and I am satisfied that it does not.
28. Thus, having considered all of the relevant matters in relation to Dr Vatarescu’s reasons for failing to comply with the requirements of which he was notified on 28 November 2006, I am reasonably satisfied that he did not have a reasonable excuse for his non-compliance. That being so, the SSAT decision under review must be set aside.
29. Finally, it appears that Dr Vatarescu may have some ground for dissatisfaction in relation to the manner in which his complaints have been handled even though his own record of compliance is not exemplary. It appears that delays and certain obfuscation when dealing with matters he raised may have exacerbated his concerns. If that is so, it is unfortunate. Without commenting on the veracity of his complaints, jobseekers who complain about difficulties with their allocated Job Network Member or about the performance of their Employment Service Provider should reasonably expect that their complaints will be promptly dealt with and, if necessary, thoroughly investigated.
decision
30. The decision under review is set aside and in place thereof the Tribunal decides that Dr Vatarescu did not have a reasonable excuse for failing to comply with notified requirements and, therefore, committed a Newstart participation failure on 11 December 2006.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ……………signed…………………………….
Jane Gribble, AssociateDate of Hearing 22 August 2007
Date of Decision 29 August 2007
Representative for the Applicant Self
Solicitor for the Respondent Justin Davidson
Counsel for the Respondent Lorraine Walker
7
2
0