Wang and Secretary, Department of Employment (Social services second review)

[2017] AATA 1748

Wang and Secretary, Department of Employment (Social services second review) [2017] AATA 1748 (16 October 2017)

Division:GENERAL DIVISION

File Number:           2016/4821

Re:Yan Ping Wang

APPLICANT

AndSecretary, Department of Employment

RESPONDENT

DECISION

Tribunal:Ms N Isenberg, Senior Member

Date:16 October 2017

Place:Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – non-compliance with Newstart Employment Pathway Plan (Job Plan) – failure to enter a Job Plan – failure to attend appointments with employment services provider – connection failure – whether reasonable excuse for the failure – cancellation of newstart allowance – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 593(1), 605(1)

Social Security (Administration) Act 1999 (Cth), ss 42E, 42G, 42SA, 42Z, 63(2), 80

REASONS FOR DECISION

Ms N Isenberg, Senior Member

16 October 2017

BACKGROUND

1. The Applicant, Yan Ping Wang, was paid newstart allowance for some years.  One of the obligations associated with receiving that benefit is that the beneficiary must attend appointments with their designated employment services provider, the organisation tasked with assisting a beneficiary into the workforce.  The Respondent (‘Centrelink’) suspended Ms Wang’s newstart allowance, when she did not attend appointments with her employment services provider.  Although Centrelink warned her that her newstart allowance would be cancelled if she did not contact her provider, she failed to do so.  On 16 December 2015, Centrelink cancelled payment of Ms Wang’s newstart allowance.  That decision was affirmed on internal review and by the Social Services & Child Support Division of this Tribunal (‘AAT1’).  The Applicant now seeks review of that decision in this Tribunal.  

   ISSUES 

2. The relevant issues for the Tribunal to consider are whether:

   (a)newstart allowance was not payable to the Applicant as a result of her failure to attend an appointment with Employment Services Group Parramatta on 17 November 2015; and

   (b)the decision to cancel newstart allowance made on 16 December 2015 was correct.

   LEGISLATION

3. The legislation relevant to the present proceeding is contained in the:

   ·Social Security Act 1991 (‘the Act’),

   ·Social Security (Administration) Act 1999 (‘the Administration Act’).

4. An unemployed person may be paid newstart allowance if, amongst other things, they comply with the requirements of their Employment Pathway Plan (‘Job Plan’).[1] If a Job Plan is not in force in relation to a person, they may be required to enter into a Job Plan.[2]

   [1] s 593(1) of the Act.

   [2] s 605(1) of the Act

5. Those who receive newstart allowance are subject to the compliance arrangements in Division 3A of the Administration Act.

6. Section 42SA of the Administration Act provides that a participation payment is immediately non-payable if certain failures occur. Section 42SA(1) provides:

   (1) The Secretary may determine that a participation payment is not payable to a    person if:

   …

   (ba) the person fails to attend an appointment that the person is required to attend  by a notice under subsection 63(2); or

   …

   Note:If paragraph (1)(a), (b) or (ba) applies, a reconnection requirement must be imposed for that failure (see section 42G).

7. In accordance with s 42G of the Administration Act, the Secretary may require a person to comply with a reconnection requirement.

8. In accordance with s 63(2) of the Administration Act, the Secretary may require a person to attend the Department or attend a particular place for a particular purpose.

9. Under s 80 of the Administration Act, the Secretary may cancel or suspend a social security payment if the person who is receiving the payment is not qualified for the payment, or the payment is not payable. Section 42Z of the Administration Act indicates that nothing in Division 3A affects the Secretary’s power to cancel or suspend a participation payment under s 80.

   CONSIDERATION 

10. If a newstart allowance beneficiary fails to comply with their job seeking obligations and does not have a “reasonable excuse” for that failure, their payments may be affected. 

11. One type of failure is the “connection” or “reconnection” failure which occurs, for example, when a person does not attend a scheduled appointment with their employment services provider, or does not enter into an Employment Pathway Plan when required to do so.[3]

    [3] s 42E of the Administration Act.

12. On 28 March 2014[4] and 2 September 2014[5], the Applicant signed Job Plans with an employment services provider, MTC Australia Parramatta (‘MTC’).On 16 September 2015, when the Applicant’s Job Plan with MCT ended, the Applicant’s new employment services provider, Employment Services Group Parramatta (‘ESG’), reportedly contacted the Applicant by phone to attend an appointment on 1 October 2015, presumably about entering a new Job Plan.[6]  The Applicant denied that she had spoken to anyone at ESG. 

    [4] ST-4, pp. 180-185.

    [5] ST-5, pp. 186-191.

    [6] ST-8, pp. 194.

13. When the Applicant failed to attend the appointment, ESG informed Centrelink.  As a result, on 2 October 2015, Centrelink decided to suspend the Applicant’s newstart allowance from 30 September 2015, and informed her accordingly.[7]  

    [7] ST-9, pp. 195.

14. Because the Applicant did not respond, on 28 October 2015, Centrelink decided to cancel her newstart allowance.[8]  On 3 November 2015, the Applicant contacted Centrelink and it was decided to restore her newstart allowance.[9]  At that time, she also informed Centrelink that she intended to apply for the disability support pension.  That day, Centrelink wrote to the Applicant, confirming that she had advised of her intention to claim disability support pension and enclosing a claim package.  There was no indication in Centrelink’s correspondence with the Applicant that she was excused from her newstart allowance obligations.

    [8] ST-10, pp. 197.

    [9] ST-11, pp. 199.

15. On 10 November 2015, ESG wrote to the Applicant, advising that she was required to attend an appointment on 17 November 2015.[10]  The notice informed her, amongst other things, that she must attend the appointment and that if she did not attend and enter into or review her Job Plan as required, payment of her newstart allowance may be stopped by Centrelink.  Also, if she was unable to attend, she was to contact ESG before the scheduled appointment.

    [10] ST-12, pp. 201-202.

16. Ms Wang said she was aware of her obligations but was “disputing the facts”.  However, it is not in dispute that the Applicant failed to attend the appointment and neither did she contact ESG.  On 17 November 2015, Centrelink was informed by ESG of the Applicant’s failure to attend.[11]  As a result, that day, Centrelink decided to again suspend the Applicant’s newstart allowance because she had again failed to attend the appointment with ESG.  Centrelink wrote to the Applicant about her having missed the appointment on 17 November 2015 and that she had not contacted ESG with a suitable reason for her failure to attend and that, as a result, her newstart Allowance was “stopped” from 11 November 2015.  She was also warned that if she did not call ESG and, if required, attend another appointment, her newstart allowance may be cancelled.

    [11] ST-13, pp. 203.

17. For reasons that are unclear, on the same day, Centrelink issued the Applicant with an instalment of newstart allowance for the period 11 November 2015 to 16 November 2015 inclusive.  On 16 December 2015, in the absence of any contact by the Applicant, Centrelink decided to cancel her newstart allowance.

    Issue 1: Did Ms Wang breach her newstart allowance obligations?

18. Ms Wang had a clear obligation to enter a Job Plan but did not do so.[12]  Further, she had a clear obligation to attend an appointment and failed to do so.[13]  Also, she was to attend ESG for the purpose of entering a new Job Plan.[14] 

    [12] s 605(1) of the Act

    [13] s 42SA(1)(ba)

    [14] s 63(2) of the Administration Act

19. Ms Wang agreed she had received Centrelink’s letter dated 17 November 2015 requiring her to make contact with her provider as soon as possible and advising her that her payment may be cancelled if this did not happen.  This amounted to a reconnection requirement under subsections 42G(a) and (f) with which she failed to comply.

    Issue 2: Did Ms Wang have a reasonable excuse for not complying with her obligations? 

20. Firstly, Ms Wang’s contention was that she did not know about the appointment of 17 November 2015 because she did not receive the letter dated 10 November 2015 from ESG.  She agreed that the letter had been correctly addressed to her home, and she said she had received communications in relation to her newstart allowance at that address, both before and after, the letter in question. 

21. Her next contention was that, in any event, receiving correspondence from Centrelink or attending Centrelink upset her and gave her “fast heart beat”.  She said she avoided dealing with Centrelink because it exhausted her. 

22. Ms Wang also referred to her ill-health and I note she had surgery in early 2013.  No medical evidence was provided that related to November 2015.  In her written submissions, she contended that her body told her that she should not contact neither the services provider, nor Centrelink.  She said she needed to walk away from the system and let her mind have some peace and let her body recover.  

23. In her written submissions, the Applicant contended her age was an issue and that many things that had been manageable in her 40s or at 50, start to become impossible to manage at her current age being 54.

24. Ms Wang also said she needed to assist her husband who had broken his foot, as a result of which he was largely immobilized for about 6 months.  She provided evidence that he had suffered metatarsal fractures of his right foot on 5 August 2015.  She said that doing all the shopping and cooking exhausted her.  She agreed in cross-examination that the offices of ESG were about a 10 – 15 minute walk from her home, and conceded she would have been able to attend appointments notwithstanding her care responsibilities for husband because of his foot.

25. The Applicant claimed that she had attended Centrelink at Parramatta in person on 17 September 2015 and had been told that she did not need to look for any jobs.  As to why she had attended, she said that it was because her ‘pay’ had been cancelled.  I understood her to be referring to her newstart allowance benefit, which, she said, had been suspended in July 2015.  As to why she had waited 2 months before attending, she referred to husband’s foot injury and Centrelink ‘payments’ were not therefore at the forefront of her mind.  In any event, she thought it was ‘just another mistake by Centrelink’.  By September 2015, she had felt in a ‘better mental state’ to deal with Centrelink.  She said she told the officer that she did not want to look for a job and wanted a social worker.  She said the officer ‘looked at the computer’ and said [she] did not have to look for a job.  While there are some records which confirm the Applicant contacted Centrelink during this period, the records do not indicate the Applicant was informed she could ignore the requirement to attend appointments with her employment services provider, or that she need not look for work.

26. She said she spoke to Centrelink on 11 November 2015 when a Centrelink officer had phoned about the suspension of her husband’s newstart allowance.  When he had explained about his foot, she said, his benefit was re-instated.  She said the Centrelink officer asked her if she would like her benefit re-instated too.  She alleged that she was told that she could report fortnightly but was not obliged to look for a job.  Centrelink’s records do not accord with the Applicant’s account.

27. The Applicant agreed that she had received the letter from Centrelink dated 17 November 2015 about the suspension of her benefit for her failure to attend the appointment that day.  She said she contacted Centrelink about that letter on 29 January 2016, about 10 weeks later.  She said she was too exhausted to deal with Centrelink; she was in poor health and could not deal with them.  She was last paid newstart allowance in November 2015 and has not looked for work.  Ms Wang never contacted her employment services provider, as required.  She is yet to lodge her application for disability support pension.   

28. Overall, I found the Applicant’s claims somewhat disingenuous.  The record of the notice indicates the letter dated 10 November 2015 from ESG was correctly addressed to her home and mailed to her on 10 November 2015.  The effect of ss 28A & 29 of the Acts Interpretation Act 2001 (Cth) is that the Applicant is deemed to have received the notice dated 10 November 2015 in the ordinary course of post.  Nothing in her evidence persuaded me otherwise.  She claimed not to have received the letter, but her other contentions suggest that, in any event, she did not propose to comply.  She also sought to assert that she had been excused from compliance.  Such a generous waiver of obligations would, in my view, be highly likely to be documented by Centrelink, and yet its records contain no such notation. 

29. I do not accept that Ms Wang had a reasonable excuse for failing to meet the requirements to attend an appointment with her provider on 17 November 2015 or, having failed to do so, to contact the provider when directed by Centrelink in its letter of 17 November 2015.  The Applicant noted that it had been suspended on at least three previous occasions.  She said her previous cancellations had been for failure to attend, failure to report and because she was overseas; in my view, she was well aware of the consequences of failure to meet her obligations.

30. I, therefore, find that Ms Wang was not satisfying the activity test. This meant that she was not qualified for newstart allowance. Section 80 of the Administration Act provides that payment of newstart allowance may be cancelled if the person is no longer qualified to receive it.

31. There was a clear requirement that the Applicant attend her employment services provider; it is entirely reasonable to expect unemployed people receiving income support to do their best to find work and undertake activities that will improve their skills and increase their employment prospects.  Ms Wang said she was aware of her obligations, but nonetheless, it appears she chose not to meet them.  She made it clear, by her claims, of having sought waiver of her obligations that, at the relevant time, she did not want to look for work.  She remains of that view.  It is fundamental to the social security system that beneficiaries have responsibilities and it is not for them to dictate the terms on which they receive a benefit. 

32. I find that the decision to cancel payment of newstart allowance to Ms Wang on 16 December 2015 is correct.

    DECISION

33. The decision under review is affirmed.

I certify that the preceding 33 (thirty- three) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated: 16 October 2017

Date of hearing:	14 September 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Larcombe, Department of Human Services