WALTER ABEL and SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 155
•9 March 2012
[2012] AATA 155
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2691
Re
WALTER ABEL
APPLICANT
And
SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Date 9 March 2012 Place Perth The Tribunal affirms the decision under review
..(Sgd) Ms K Hogan...............
Ms K Hogan, Member
Catchwords
Newstart Allowance – Reconnection penalty period – delegation of powers
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
Cases
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (NO 2) (1979) 2 ALD 634
Lim v Secretary, Department of Education, Employment and Workplace Relations (No. 2) [2008] FCA 1752 (21 October 2008)
Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) FCA 663
Rohrmoser v Registrar of Trade (1987) 70 ALR 613
Henney v Secretary DEWR [2007] AATA 1639
Vatarescu; Secretary, Department of Employment and Workplace Relations [2007] AATA 1717
Telstra Corporation Limited v Administrative Appeals Tribunal & Anon [2003] FCA 102Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988
REASONS FOR DECISION
Ms K Hogan, Member
9 March 2012
HISTORY
The applicant was in receipt of Newstart Allowance since 2 November 2007. On 10 March 2011 a Centrelink Officer decided to impose a reconnection penalty period because the applicant did not have a reasonable excuse for failing to attend a reconnection appointment on 10 March 2011.
The applicant attended a reconnection appointment on 21 March 2011.
The applicant requested a review of the decision to impose a reconnection penalty period.
A Centrelink Authorised Review Officer (ARO) reviewed and affirmed the decision on 13 May 2011.
The applicant lodged an application for a review of that decision to the Social Security Appeals Tribunal (SSAT) on 27 May 2011.
On 21 June 2011 the SSAT decided to affirm the decision under review.
The applicant lodged an application to review to this Tribunal.
ISSUE
The issues to be considered by the Tribunal are:
(a)whether the applicant was required to attend an appointment with CRS Australia on 2 March 2011;
(b)whether his non-attendance constituted a connection failure;
(c)if so, whether he was required to attend a reconnection appointment on 10 March 2011 and if so, whether his non-attendance constituted a reconnection failure;
(d)if so, whether he has to serve a reconnection penalty period;
(e)whether CRS Australia had the delegation to send a letter to the applicant requiring him to attend an appointment on 2 March 2011; and
(f)whether CRS Australia had the delegation to require him to enter into an Employment Pathway Plan.
EVIDENCE
The Tribunal was provided with a number of documents including:
(a)the section 37 documents; and
(b)written submissions from the respondent.
The Tribunal heard oral submissions on behalf of the parties.
An issue was raised at the hearing on 29 November 2011 whether CRS Australia had the delegation to send a letter to the applicant requiring him to attend an appointment on 2 March 2011 and whether CRS Australia had the delegation to require the applicant to enter into an Employment Pathway Plan.
Written submissions were directed for both parties. The respondent filed a submission on 20 December 2011.
APPLICANT
The applicant conceded that he received the letter notifying him of the appointment with CRS Australia on 2 March 2010 but that he was unaware of the appointment because he did not open the letter.
The applicant contended that the notification of the appointment with CRS Australia on 2 March 2010 was invalid because Centrelink had no power to delegate to outside contractors or other agencies.
The applicant contended that he was required to attend only the compulsory activity listed in his Employment Pathway Plan (which was to attend appointments with Centrelink) and not the voluntary activities of searching for work. These voluntary activities are referred to on page 1 of the Employment Pathway Plan.
The applicant contended that the information recorded about him by Centrelink has not always been accurate and he previously told the Social Security Appeals Tribunal that the frequency of this happening causes him to think it is deliberate.
In reference to the appointment scheduled for 10 March 2011, the applicant said that he could not clearly hear details of the appointment as there was significant traffic at the time and when he asked for the details to be repeated they were not.
RESPONDENT
The respondent relied on its statement of facts and contentions.
The respondent contended that the instrument delegating certain powers to employment services providers dated 26 February 2010 sets out the definition of an employment services provider and includes a memorandum of understanding between the Department of Education, Employment and Workplace Relations and the Department of Human Services as represented by CRS Australia. CRS Australia has been delegated powers as set out in Schedule 1 of the instrument.
The respondent contended that Mr David Phillip, the person who sent the letter to the applicant on 25 February 2011 was engaged by an employment services provider to perform functions or to provide services under an arrangement with the Department of Education, Employment and Workplace Relations and therefore he had the delegation under section 63(2) of the Social Security Administrations Act to send a letter to the applicant requiring him to attend the interview on 2 March 2011.
The Secretary contended that Part 1 of Schedule 1 lists the powers delegated under the Social Security Act 1991 (the Act) and that ss 28(4), 28B, sub-section 601(4)B and (4)C and subdivision C of Division 1 of Part 2.12, allow Employment Pathway Plans to be negotiated by employment services providers with newstart allowance recipients and for approved activities to be included in those plans.
In the Federal Court case of Lim v Secretary, Department of Education, Employment and Workplace Relations (No. 2) [2008] FCA 1752 (21 October 2008), Bennett J considered the issue of delegation at paragraphs 14 through 21 and found that the employment service provider had delegation to sign an activity agreement, which is now known as an Employment Pathway Plan.
Whilst the instrument referred to in paragraph 17 of that decision was an instrument previous to the instrument dated 26 February 2010, the respondent contended that both contain basically the same delegated powers and therefore submitted that CRS Australia was delegated to negotiate an employment pathway plan with the applicant on 2 March 2011.
The applicant was notified of an appointment with CRS Australia on 2 March 2011 by letter dated 25 February 2011. The purpose of the appointment was to assess his needs and requirements and to negotiate an Employment Pathway Plan.
The notice stated that it was sent under the social security law and he must attend and enter into an Employment Pathway Plan in order to fulfill his newstart allowance requirements (section 63 Administration Act).
Subsection 593(c) and (d) of the Act require a person to enter into either an Employment Pathway Plan if one is not already in force or enter into a new one if required to do so as part of continuing eligibility to newstart allowance.
The applicant did not attend the appointment and did not provide a reasonably excuse pursuant to section 42UA of the Administration Act and therefore a connection failure must be applied pursuant to sections 42E and 64 of the Administration Act.
The Social Security Reasonable Excuse – Participation Payment Obligations (DEEWR) Determination 2009 No. 1 sets out the matters to be considered in determining if a person had a reasonable excuse for committing connection and reconnection failures however the respondent contended that none of the matters applied to the applicant’s circumstances.
The respondent contended that the letter dated 25 February 2011 made it clear that attendance at the appointment was compulsory and that there were consequences for not attending.
The respondent contended that whilst the applicant was of the view that he did not to have to attend the appointment on 2 March 2011 because it was not a requirement of his Employment Pathway Plan (T1 p 2), the respondent contended that the applicant’s obligations were clear from the documentation.
Page 2 of the Employment Pathway Plan sets out the jobseeker statement which states, amongst other things, that “I understand that I can have my Employment Pathway Plan reviewed at any time to reflect any changes in my circumstances and Centrelink will help me” (T4 p 37) further, page 4 of the plan contains information you need to know and under the heading “About Your Employment Pathway Plan” the last paragraph states “it is very important to note that you may not be paid income support if you don’t enter into an Employment Pathway Plan when asked to do so”.
The respondent contended that if the applicant was not sure that his attendance at the appointment was compulsory he could have contacted CRS Australia or Centrelink prior to the appointment for confirmation. There is no evidence that he did so.
Consequently the respondent contended that his excuse for not attending was not reasonable.
In relation to the appointment with CRS Australia on 10 March 2011, the respondent contended that it was appropriate to notify the applicant that he must attend a reconnection appointment within two days and that as an appointment was made for 10 March 2011 there was insufficient time for a letter to be posted to him to advise of the appointment 10 March 2011 and that therefore the applicant was properly notified of the reconnection appointment and having failed to attend, a reconnection failure should be applied pursuant to section 42H of the Administration Act.
The applicant was subject to a reconnection failure period starting on the day he committed the failure, 10 March 2011 and ending on 20 March 2011 the day before he attended a reconnection appointment.
The respondent contended that the reconnection failure period was correctly calculated.
Section 42T of the Administration Act sets out the method for working out the penalty amount for a reconnection failure period which is the amount of the person’s daily rate of participation payment multiplied by the duration of the reconnection failure period and that in this case the amount for the period 10 March 2011 to 20 March 2011 was $369.42 which was deducted from his payment paid on 6 May 2011.
CONSIDERATION AND APPLICATION OF THE LAW
Whilst the applicant contended that he had not committed any failures as:
(a)he was not required under the terms of his Employment Pathway Plan to attend appointments with CRS Australia; and
(b)CRS Australia did not have the delegation to send him a letter requiring him to attend an appointment on 2 March 2011; and
(c) CRS Australia did not have the delegation to require him to enter into an Employment Pathway Plan,
The Tribunal finds that CRS Australia had the delegation to send the letter to the applicant requiring him to attend appointments with CRS Australia and that CRS Australia had the delegation to require him to enter into an employment pathway plan.
The Tribunal finds that the applicant was properly notified of the appointment on 2 March 2011 and that he failed to attend the appointment on 2 March 2011 without reasonable excuse as set out in the Reasonable Excuse Determination.
The Tribunal further finds that the applicant was verbally notified of the appointment on 10 March 2011 and that pursuant to section 63 of the Administration Act the applicant received valid notice of the appointment.
The Tribunal finds that the applicant did not have a reasonable excuse, considering the factors listed in the Reasonable Excuse Determination, for failure to attend the appointment on 10 March 2011.
Based on the evidence before the Tribunal, the Tribunal is not satisfied that the applicant provided a reasonable excuse for his failure to attend the appointment on 10 March 2011.
The Tribunal finds that the applicant failed to attend the appointment on 2 March 2011 and 10 March 2011 and that as a consequence of his failure he committed a reconnection failure.
The consequence of this is that under sub-section 42H(4) of the Administration Act a reconnection failure period is applied and the period begins on the day of the applicant’s reconnection failure 10 March 2011 and ends on the day before his compliance with a further reconnection requirement 20 March 2011.
DECISION
The Tribunal affirms the Decision under review.
I certify that the preceding 46 paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member .
.....(Sgd) T Freeman
Associate
Dated 9 March 2012
Date of hearing 29 November 2011 Applicant In person Advocate for the Respondent Ms M Conlon
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