Verbeekvandersande and Secretary, Department of Family and Community Services
[2005] AATA 429
•13 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 429
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/272
GENERAL ADMINISTRATIVE DIVISION )
Re JAMES VERBEEKVANDERSANDE Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Mr RG Kenny, Member Date13 May 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.....................[Sgd].......................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – newstart allowance – failure to provide accurate information in jobseeker diary – failure to take reasonable steps to comply with the terms of a newstart activity agreement - failure to satisfy the activity test- imposition of an 18% activity test breach rate reduction period.
Social Security Act 1991 ss 593, 601, 604, 606, 626, 644AA, 644AE
REASONS FOR DECISION
13 May 2005 Mr RG Kenny, Member Background
1. During 2003, Mr Verbeekvandersande (the applicant) was in receipt of newstart allowance, a form of income support payable in accordance with the terms of the Social Security Act 1991 (the Act). On 22 July 2003, an officer of Centrelink, a statutory authority within the portfolio of the Department of Family and Community Services (the respondent), determined that an activity test breach rate reduction period should be imposed on Mr Verbeekvandersande for the period from 22 July 2003 until 19 January 2004 at the rate of 24%.
2. On 7 August 2003, an authorised review officer with Centrelink varied that decision by decreasing the rate to 18% but the period of reduction was maintained. That decision was affirmed by the Social Security Appeals Tribunal on 10 March 2004 and, on 14 May 2004, Mr Verbeekvandersande sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. Mr Verbeekvandersande attended the hearing but was not represented. Ms J Hamilton, from Centrelink’s Service Recovery Team, appeared on behalf of the respondent.
4. In evidence were the following documents:
exhibit 1:the “T” Documents (T1 – T33) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975;
exhibit 2:a statement, dated 1 April 2005, by Kathryn Sack, a multicultural officer with Centrelink;
exhibit 3:a document, dated 30 August 1996, bearing the name “Jim Sande”;
exhibit 4:a letter, dated 19 June 2003, to the applicant from Megan Pearce, assistant co-ordinator, ADD Community Programs; and
exhibit 5:a letter, dated 13 June 2003, to the applicant from Centrelink.
Issues and Legislation
5. The requirements for payment of newstart allowance are set down in section 593 of the Act. It provides that a person, unless exempted from doing so, must satisfy the activity test. It is not disputed and I am satisfied that Mr Verbeekvandersande was not exempted from this requirement.
6. Subsection 601(1) of the Act provides that a person satisfies the activity test during a period if, during the period, the person is actively seeking and willing to undertake suitable paid work. Under subsection 601(4) of the Act, the activity test is satisfied if, throughout the period, the person takes reasonable steps to comply with the terms of a newstart activity agreement. In accordance with subsection 601(5) of the Act, the failure by a person to take reasonable steps to comply with the terms of a newstart activity agreement, the person cannot be taken to satisfy the activity test. Further, under subsection 601(6) of the Act, a person is held to have taken reasonable steps to comply with the terms of a newstart activity agreement unless the person has failed to comply and the main reason for failing to comply involved a matter that was within the person’s control or the circumstances that prevented him from complying were reasonably foreseeable to him. In according with subsection 604(1) of the Act, a person in receipt of a newstart allowance may be required to enter into a newstart activity agreement. In according with subsection 606(1) of the Act, that agreement may require a person to undertake a variety of tasks including a suitable activity which is agreed to by the person.
7. In this matter, the respondent contends that Mr Verbeekvandersande attended an interview with Kathy Sack, an officer in the Toowoomba Centrelink Office, on 12 May 2003 and, at that time, entered into a preparing for work agreement, a form of newstart activity agreement. Further, the respondent contends that a term of this agreement was that Mr Verbeekvandersande was to approach at least four potential employers each fortnight and to record details of these contacts in a jobseeker diary which was to be returned to the Centrelink Office on 21 July 2003. The respondent contends that this requirement was not complied with by Mr Verbeekvandersande and that a substitute diary was sent to him by facsimile transmission (fax) on 24 July 2003. It was further contended that the substitute diary was returned on the same day and contained information concerning employers which Mr Verbeekvandersande claimed to have contacted for the purposes of seeking employment.
8. Ms Sack, after contacting some of the nominated employers in the diary, decided that it had been completed in an unsatisfactory manner and she imposed a breach on Mr Verbeekvandersande for failing in his obligations under the agreement. Initially, two breaches of the agreement were recorded. In addition to that noted above, the failure to lodge the diary on 21 July 2003 was taken as a second breach. However, the authorised review officer determined that there was a single breach and this had the effect of reducing the activity breach rate reduction from 24% to 18%.
9. The respondent based its decision on a failure by Mr Verbeekvandersande to take reasonable steps to comply with the terms of the agreement and, therefore, not to have satisfied the activity test. Reliance was then placed upon the following provisions in respect of the imposition of the rate reduction period:
“626.(1) Subject to subsection (2), if:
(a)a person is required to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and
(b)the person fails to take reasonable steps to comply with the terms of the Newstart Activity Agreement (the failure);
a newstart allowance is not payable to the person because of the failure.
626.(1A) If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:
(a)if the failure is the person’s first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or
(b)……….
.
644AA.(1) If an activity test breach rate reduction period applies to a person under this Part, the period applicable to the person is 26 weeks.
644AA.(1A) If:
(a)an activity test breach rate reduction period is applicable to a person because of an activity test breach other than:
(i)a breach for failing to take reasonable steps to comply with a requirement of the Secretary to undertake particular paid work as set out in a notice under subsection 601(2); or
(ii)a breach of subsection 601A(1), of section 628, 629 or 630 or of paragraph 630AA(1)(b); or
(iii)a breach of paragraph 630AA(1)(a) where the Secretary is satisfied that the person has acted with an intention of obtaining a social security advantage; or
(iv)a breach because of a failure to take reasonable steps to comply with a job search requirement of a Newstart Allowance Activity Agreement as described in subsection (1C); and
(b)the activity test breach is the first activity test breach of any kind that is applicable to the person in the period of 2 years ending immediately before the day after the activity test breach; and
(c)the Secretary notifies the person, either orally or in writing, of an activity or activities that, if undertaken by the person, would satisfy the Secretary that the activity test breach rate reduction period should be modified in accordance with this subsection; and
(d)at the earliest opportunity available to the person but in no case later than 8 weeks after the start of the activity test breach rate reduction period applicable to the person, the person undertakes the activity or each of the activities;
the activity test breach rate reduction period applicable to the person is 8 weeks rather than 26 weeks.
…..
644AA.(1C) For the purposes of subparagraph (1A)(a)(iv), a job search requirement of a Newstart Allowance Activity Agreement is a requirement that the person to whom the Agreement relates:
(a) undertake a certain number of job searches per fortnight; and
(b)keep a record of the person’s job searches in a document referred to in the agreement as a jobseeker diary; and
(c)return the jobseeker diary to the Department at the end of the period specified in the Agreement.”
10. In accordance with section 644AE of the Act, where, as in this case, the activity test breach is the person's first breach in a two year period, the rate of reduction is 18%. Accordingly, the Tribunal has to determine whether Mr Verbeekvandersande entered into an agreement with the Centrelink officer, whether that agreement required him to complete a jobseeker diary, whether any such requirement was complied with by Mr Verbeekvandersande and, in the event of non-compliance, whether an activity breach rate reduction period should be imposed on him.
Evidence
11. Oral evidence was taken in this matter from Mr Verbeekvandersande and also Kathy Sack. Mr Verbeekvandersande said that he recalled the meeting on 12 May 2003 with Ms Sack and said that the interview took some three hours to complete. He could not recall signing an agreement although he conceded that he may have done so. After the interview, he attended a job service provider, ADD Employment, and he believed that he had completed documentation there. He understood that he had no obligations to Centrelink as a result of his interview with Ms Sack and that the only obligations he had were in respect of what he had to do for ADD Employment.
12. Mr Verbeekvandersande agreed that, whilst his rate reduction period was being dealt with by Centrelink, he had given varying accounts of whether or not he could recall attending the interview with Ms Sack. He said this was due to the passage of time since the interview occurred.
13. Mr Verbeekvandersande said he had contacted Centrelink when his fortnightly payment for the period ending 21 July 2003 had not been received and, on that occasion, was advised that he had not lodged his diary. He said he had not been aware that he was required to complete a diary and he said that, during the period, he had consistently made attempts to obtain employment and had kept some details of these. He recalled receiving a blank diary by fax on 24 July 2003 and he completed it by inserting his record of jobseeking endeavours and returned it to Centrelink on the same day. He said that, with the job applications he included in the diary, interviews had not been arranged and he was sometimes only able to speak to a secretary.
14. Ms Sack has been employed by Centrelink for twelve years. During 2003, she was employed as a participation adviser and one of her responsibilities was conducting interviews in relation to completing agreements with jobseekers and explaining obligations to them. She recalled clearly the meeting with Mr Verbeekvandersande on 12 May 2003 in part because it took 3 hours which was much longer than usual. During the interview, Mr Verbeekvandersande had advised her that he lived in a remote location at Cooyar which is approximately 100 kilometres from Toowoomba and 80 kilometres from Kingaroy. She said that those seeking newstart allowance were required to undertake mutual obligation negotiations by, for example, undertaking voluntary work. She recalled Mr Verbeekvandersande who, because of the remoteness of his residence, was unable to complete these. Because of this, she had to take advice from an area officer on the question of whether he could be released from his mutual obligation requirements. She said that this was another unusual feature of the interview which assisted her to have good recall of it. She said that the information provided to her by the area officer was that Mr Verbeekvandersande could be released from the mutual obligation requirements but that he had to complete a jobseeker diary.
15. Ms Sack said that in an interview of the kind that she had with Mr Verbeekvandersande, there would also be documentation signed and that, in this case, it was the preparing for work agreement. She said that, at the time, there were difficulties experienced with the computer software and, for that reason, a handwritten document had to be prepared. She said that, when that happened, office practice was for these to be loaded subsequently into the computer and, when that was done, the paper copy would then be archived. Ms Sack said that, in Mr Verbeekvandersande’s case, the material had not been loaded into the computer and the paper copy appeared to have been archived and could not now be located. However, she said that there was no chance that he would not have completed an agreement and that a standard term in an agreement was for a jobseeker diary to be completed and for it to contain a record of four attempts at gaining employment in each fortnight. She said that, while the document was not completed on the computer, a record of it having been completed was on Mr Verbeekvandersande’s computer file.
16. Ms Sack said that Mr Verbeekvandersande contacted the office on 24 July 2003 to advise that he had not received his fortnightly payment of newstart allowance. She explained to him that this was because the diary had not been lodged on 21 July 2003 and, after discussion with him, she sent a substitute diary to him by fax. She received that substitute diary, completed by Mr Verbeekvandersande, on the same day and, as was her custom, she made routine checks with the nominated employers to confirm whether or not Mr Verbeekvandersande had made contact with them. One of those entries was for an advertised position with Neislen Radiators and, when she contacted that employer, she was advised that there had been no advertisement of a vacancy and no-one could recall contact being made by Mr Verbeekvandersande. Ms Sack said that she then contacted all of the remaining employers and, in each case, was advised that no person with the name of Verbeekvandersande had applied for any positions. In that situation, Ms Sack said that she concluded that the diary had not been satisfactorily completed and imposed a breach on Mr Verbeekvandersande for that reason.
17. Ms Sack said that she also contacted the employers which Mr Verbeekvandersande had nominated on his fortnightly application for payment forms. These forms required details of employers contacted in the previous fortnight. Ms Sack said she had contacted each of these nominated employers and no-one was able to recall an application by Mr Verbeekvandersande
18. After having heard Ms Sack’s evidence, Mr Verbeekvandersande revealed that it was his practice not to use his full name when making job applications. Rather, he said that he referred to himself as “James Sande”. He also said that he had advised Centrelink of this. Ms Sack said that she had not heard that name before and that, if she had been aware that a different name had been used by him, she would have re-contacted the employers. Mr Verbeekvandersande conceded that he had not made reference to the name “James Sande” in any of the proceedings relating to his appeal, including the proceedings at the Social Security Appeals Tribunal. He said that he had deliberately kept that information to himself because he intended to use it as his “ace card” for proceedings in the Administrative Appeals Tribunal.
Consideration
19. While it is the case that there is no paper copy or computerised version of an agreement completed by Mr Verbeekvandersande on 12 May 2003, there are computer entries which record the fact of such an agreement being made. A computer entry, dated 12 May 2003, records that a “PFWA” was signed and that a diary was recorded for four contacts. I understand the term “PFWA” represents a preparing for work agreement. In evidence was a similar agreement prepared by Centrelink and completed by Mr Verbeekvandersande on 28 October 2002.
20. In evidence was a letter from Centrelink to Mr Verbeekvandersande dated 12 May 2003 which, as I understand it, was routinely sent to him after the interview with Ms Sack. It included the following:
“You are exempt from your Mutual Obligation because you live more than 90 minutes from a Mutual Obligation Activity.
You were recently issued with a Jobseeker Diary. You need to start filling it out as soon as your payments commence. You should approach at least 4 employers each fortnight and record these in your Jobseeker Diary.”
21. In his evidence, Mr Verbeekvandersande said he could not recall receiving this letter or, indeed, a similar letter dated 10 July 2003. In her evidence, Ms Sack said that, when those letters were sent, they included a fortnightly application form for payment of newstart allowance. She said that these application forms had subsequently been lodged by Mr Verbeekvandersande with Centrelink. In his evidence, Mr Verbeekvandersande said that the application forms had come by mail but without any accompanying letter.
22. Ms Sack is an experienced Centrelink officer who gave her evidence in a clear, forthright and consistent manner. I accept that she was a witness of truth and I accept her evidence to the extent that it is at variance with that of Mr Verbeekvandersande. I accept that, at the meeting of 12 May 2003, an agreement was signed by Mr Verbeekvandersande; that it contained a jobseeker diary obligation to provide employment details of four contacts per fortnight; and that this was to be returned by Mr Verbeekvandersande on 21 July 2003. I also accept the evidence of Ms Sack in relation to the sending of letters to Mr Verbeekvandersande and find that the letter and the application forms were sent together. Since Mr Verbeekvandersande returned the application forms, I am satisfied that he also received the letters of 12 May 2003 and 10 July 2003 and that these contained the information about his need to complete his jobseeker diary.
23. Mr Verbeekvandersande has given inconsistent accounts of matters that have arisen in relation to this appeal process. In particular, this relates to the meeting with Ms Sack on 12 May 2003. Initially, he denied that it occurred but, then, was prepared to accept that he had the three hour interview with her but denied signing any documentation. I have noted his evidence that he contacted employees with the name of “James Sande”. However, I do not accept his evidence in that regard. I am satisfied that he did not advise any Centrelink officer that he used that name. It defies commonsense and logic for him to keep it as his “ace card” for proceedings in the Administrative Appeals Tribunal when the matter has been under investigation for almost two years and was the subject of proceedings in the Social Security Appeals Tribunal. There, Mr Verbeekvandersande acceded to a request by that Tribunal for them to contact the employers themselves. Knowing that the Tribunal was to contact the employers and knowing the reason behind that action by the Tribunal, Mr Verbeekvandersande did not advise the Tribunal that he had made the application for employment under the name of “James Sande”.
24. I am satisfied that Mr Verbeekvandersande entered into a preparing for work agreement on 12 May 2003 and that it included an obligation for him to complete a jobseeker diary which was to be returned to the Centrelink office on 21 July 2003. I am satisfied that he did not complete that diary. I accept that he provided employer information on the duplicate diary which was faxed to him on 24 July 2003. However, I am also satisfied that the information he provided in that diary and, indeed, on his fortnightly application for payment forms, was not an accurate reflection of endeavours by him to obtain employment. I am satisfied that Mr Verbeekvandersande did not complete the jobseeker diary as required in the period from 12 May 2003 to 21 July 2003.
25. On the basis of those findings, I am satisfied that Mr Verbeekvandersande failed to comply with the term of his activity agreement and I am also satisfied that there is no evidence that his failure to do so were matters over which he had no control. On that basis, Mr Verbeekvandersande has failed to satisfy the activity test as provided for in section 593 of the Act.
26. In accordance with the terms of section 626, noted above, an activity test breach rate reduction period applies to him. In accordance with section 644AE of the Act, the relevant rate is 18% and, in accordance with the terms of section 644AA, noted above, the period of reduction is 26 weeks.
Decision
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
AssociateDate/s of Hearing 27 April 2005 [at Toowoomba]
Date of Decision 13 May 2005
The Applicant appeared in person
For the Respondent Ms J Hamilton, Departmental Advocate
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