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

[2008] AATA 414

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 414

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5575

GENERAL ADMINISTRATIVE DIVISION		)
Re		VICTOR WALMSLEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of decision                14 April 2008

Date of written reasons    20 May 2008

Place  Sydney

Decision   The reviewable decision is affirmed.

.....................[sgd].........................

Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – newstart allowance – newstart activity agreement – participation failure – three in 12 month period – whether reasonable excuse – no reasonable excuse - reviewable decision affirmed

Administrative Appeals Tribunal Act 1975, s 43

Social Security Act 1991, ss 605, 624, 629

WRITTEN REASONS FOR ORAL DECISION

20 May 2008 Senior Member, Mrs Josephine Kelly     

1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision were made and a summary of the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      Mr Victor Walmsley is 61 years of age. He has been receiving newstart allowance almost continuously since about 1983. In August 2007 a Centrelink Authorised Review Officer (“ARO”) cancelled his newstart allowance and imposed an eight week non-payment period from 12 June to 6 August 2007 because Mr Walmsley had committed three newstart participation failures within a 12 month period.  The Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision on 5 November 2007 and Mr Walmsley seeks review of that decision.

3.      Mr Walmsley’s newstart allowance payment did resume. A partial stay of his newstart allowance was granted in this Tribunal, so that he has missed only one newstart allowance payment from the eight week non-payment period.

THE ISSUE

4. The issue to be determined is whether the decision to impose an 8 week newstart allowance non payment period was in accordance with section 629 of the Social Security Act 1991 (the Act).  That is:

(a) Did Mr Walmsley have three participation failures within 12 month period as required by s 624 of the Act and

(b)If so, did Mr Walmsley have a reasonable excuse for committing those failures?

LAW

5. Section 605 (1) of the Act permits the Secretary to require a person to enter into a Newstart Activity Agreement if the person is receiving newstart allowance. They can also be required to enter into a new agreement to instead of an existing one (s 605 (2) of the Act). Proper notice of the requirement and of the time and place at which the agreement is to be negotiated must be given to persons entering into such agreements (s 605 (3) of the Act). The Secretary can outsource the function of administering Activity Agreements to Employment Service Providers and Job Network Members.

6. Section 624 of the Act provides, relevantly:

(1)  A person commits a newstart participation failure if the person:

…

(c)  fails to comply with a requirement to enter into a Newstart Activity Agreement

…

(2)Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

MR WALMSLEY’S CASE

7.      Mr Walmsley’s case before the SSAT and this Tribunal was essentially that it is not appropriate for people over 55 to have apply for a job and look for work. He claimed that the social security system was administered by “fascists” in the Australian government and that it was unfair to expect him to attend the interviews as required by his Activity Agreement.  He revealed a detailed knowledge of the social security system.

8.      Over the years Mr Walmsley has seen a multiplicity of employment service providers. At the hearing Mr Walmsley expressed his dissatisfaction with the employment service providers he was assigned to, and with their ability to find him suitable full time employment.

9.      Around about 2005 Mr Walmsley was with Wesley Mission. He then moved over to IPC employment. He decided to leave IPC Employment but has since been referred back to them by Centrelink. His current job service network provider is IPC Employment. He was unhappy with them and put in a request to transfer by mutual agreement to another service provider.

10.     By the time the matter was before this Tribunal Mr Walmsley had set out his reasons for the three participation failures in writing, in a letter attached to his application for review. I consider the reasonableness of his reasons below.

CONSIDERATION

11.     Mr Walmsley entered into an Activity Agreement with Centrelink on 13 October 2006. He agreed to undertake ten job search applications between October 2006 and December 2006 and to report to Centrelink. Mr Walmsley also agreed to be allocated to an Employment Service Provider, in this case IPC Employment and to make one job search contact through IPC Employment.

12.     IPC Employment sent Mr Walmsley a notice on 10 November 2006 advising that he had to attend an appointment at their office in Chatswood on 20 November 2006.  He did not attend that appointment.  Centrelink subsequently sent Mr Walmsley a notice advising of that it considered this his first participation failure.   I find that this failure was his first participation failure.

13.     Before the Tribunal, Mr Walmsley position was that he was unable to attend and requested to change appointment date which was refused.  He also said that it was unclear if he was allowed to go to IPC.  He wanted nothing to do with IPC which he said he had left several years ago, and wished to transfer to another Job Network Member, which had not been done.  I accept the contemporaneous record that there had been many telephone calls and a couriered letter advising him he could not swap Job Network Members and must attend.  At the bottom of this complaint, as I understand it, is that before he can transfer, he has to find another job network member which has a vacancy for intensive assistance, and apparently they are limited.    I find that this was a Newstart participation failure and that Mr Walmsley did not have a reasonable excuse for not attending.

14. Another appointment with IPC Employment was arranged for 9 January 2007. Mr Walmsley attended this appointment, but refused to sign a new Activity Agreement and left. Thereafter Centrelink sent him another notice advising that this was to be recorded as his second participation failure. I accept that this was a further participation failure as defined in s 624(1)(a) of the Act. The contemporaneous record revealed that when an officer refused to give their last name, Mr Walmsley walked out. Earlier he said that he did not want to attend the look for work program and wanted options. He believed at 59 years of age he should not have to look for work. In this Tribunal Mr Walmsley relied on some additional reasons, however, these seem to have arisen well after the event. I do not accept that Mr Walmsley had a reasonable excuse not to sign the activity agreement.

15.     The third participation failure concerned Mr Walmsley’s failure to attend an appointment on 29 May 2007. Notice of this appointment was sent by Centrelink on 23 May 2007. The notice stated that, if Mr Walmsley failed to attend the appointment without a valid reason then this could be considered a newstart participation failure, and that three such failures within a 12 month period could result in non payment of his newstart allowance for eight weeks. Again, Mr Walmsley did not attend.  Various attempts were made to contact him to discuss his failure to attend, but unsuccessfully.   I find that this was a participation failure.  Again Mr Walmsley's reason for not attending was his dissatisfaction with the participation requirements provided in the legislation.   He raised further reasons before this Tribunal, however, again I do not accept that those were his reasons at the time.  In any event, I do not consider that the reasons Mr Walmsley gave were reasonable. 

CONCLUSION

16.     In my view, Mr Walmsley is an experienced user of the social security system who now believes that, because of his age and lack of work experience, he should not have to look for work.  His dissatisfaction with the system has led him to simply refuse to do what is required by the legislation in relation to looking for work.  That is his choice, but it has consequences, including the non-payment period applying where there have been three participation failures.

17.     This Tribunal is bound by the legislation.  In my view the correct or preferable decision in this case is to affirm the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: …………[sgd]..…………

Steven Mulipola, Associate

Date of hearing:  14 April 2008

Date of oral decision:  14 April 2008

Date of written reasons:                 20 May 2008

Representative for the Applicant: Self-represented

Solicitors for the Respondent:      Centrelink Legal Services