Warren; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 760

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 760

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1467

GENERAL ADMINISTRATIVE DIVISION        )

Re       SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

AndANTHONY WARREN

Respondent

DECISION

TribunalDr J Campbell, Member

Date28 August 2008

PlaceSydney

DecisionThe decision of the Social Security Appeals Tribunal dated 15 March 2007, is set aside and in substitution thereof an eight week non-payment of Newstart Allowance to Mr Warren be imposed, with the matter remitted to the Applicant to implement the decision.

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

Dr J Campbell
  Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – Activity Agreement – Participation Failures – Imposition of a Penalty – Decision under Review is set aside and in substitution thereof an eight week non-payment of Newstart Allowance to Mr Warren be imposed, with the matter remitted to the Applicant to implement the decision.

Social Security Act 1991: sections 605, 624, 626, 629

Social Security (Administration) Act 1999: section 63

Social Security (Reasonable Excuse) (DEWR) Determination 2006: cl 4

REASONS FOR DECISION

28 August 2008	Dr John Campbell, Member
summary

1.      Mr Warren is 54 years of age.  Mr Warren was granted Newstart Allowance (“NSA”) on 23 June 2005 and has received such allowance continuously since that time.  Mr Warren was provided with information regarding his obligations associated with receiving NSA at an information seminar he attended at the time of first receiving his NSA.

2.      On 12 September 2005, Mr Warren entered into an activity agreement with a Job Network Member (“JNM”), The Salvation Army Employment Plus.  One of the terms in the activity agreement required Mr Warren to attend a Career Development Program from 10 October 2005 to 29 October 2005.

3.      On 15 September 2005, Centrelink issued a notice to Mr Warren requiring him to attend an appointment with his JNM on 28 September 2005 at 10.00 am to negotiate a preparing for work agreement.  The notice detailed instructions to notify the JNM before the time of the meeting, if unable to attend and detailed possible sanctions if such an agreement was not negotiated (Exhibit A3, Annexure A).

4.      On 6 October 2005, Centrelink sent another notice, in similar terms to Mr Warren to attend an appointment on 19 October 2005 at 10.00 am (Exhibit A3, Annexure B).

5.      On 18 October 2005, Centrelink sent a notice to Mr Warren advising him that he did not attend the Career Development Program on any of the five days, as per the terms of his activity agreement, prior to 17 October 2005 with his JNM, and that he had not met one of the conditions associated with his NSA (T29).  Mr Warren was, in the notice, requested to contact Centrelink to discuss the matter.  Mr Warren failed to respond to the letter request and his NSA payments were suspended from 2 November 2005.

6.      On 4 November 2005, Centrelink sent a notice to Mr Warren advising him that his NSA had been stopped from 2 November 2005, as he had not complied with the terms of his preparing for work agreement.  The notice also advised Mr Warren that an activity test breach had been recorded on 14 October 2005 and that the payment amount of his NSA would be reduced by 18 percent from 16 November 2005 until 16 May 2006.

7.      On 24 January 2006, Mr Warren entered into an activity agreement with the JNM.  In the activity agreement Mr Warren agreed to commence, fully participate and complete by 9 March 2006, an Intensive Support Customised Assistance program with his JNM and attend fortnightly meetings as requested and attend assisted job search sessions and apply for at least two positions every week from 24 January 2006 to 24 January 2007 (T12).

8.      On 3 May 2006, Centrelink issued a notice to Mr Warren advising him to attend another appointment with his JNM on 16 May 2006 at 9.00 am (Exhibit A3, Annexure C).  This notice was similar to earlier notices detailed in Exhibit A3, Annexures A and B.

9.      On 23 May 2006, Centrelink sent a notice to Mr Warren advising him that because he had not complied with the terms of his activity agreement, an activity test breach had been recorded on 5 May 2006 (the activity agreement breach having been notified to them by the JNM on 23 May 2006 (T14)).  Because of his earlier activity test breach, Mr Warren’s rate of NSA would be reduced by 24 percent from 6 June 2006 until 4 December 2006 (T15).

10.     On 20 July 2006, Mr Warren was advised of an appointment with his JNM on 2 August 2006 at 10.00 am by way of a letter, with the purpose of the meeting to review the agreed activities (Exhibit A3, Annexure D).

11.     The JNM advised Centrelink of Mr Warren’s failure to attend weekly job search sessions from 12 July 2006 through 2 August 2006.

12.     On 21 September 2006, a Centrelink social worker noted that, following a telephone conversation with Mr Warren and discussions with his JNM career adviser, she was unable to identify any barriers or vulnerabilities preventing Mr Warren from complying with his activity agreement obligations (T31).

13.     On 26 September 2006, Centrelink sent a notice to Mr Warren advising him of their decision to suspend his NSA for eight weeks, as an activity test breach had been recorded on 2 August 2006, and because he had two other activity test breaches in the 12 months immediately prior to 2 August 2006 (T18).

14.     On 20 October 2006, Mr Warren sought review of the decision to suspend his NSA for eight weeks.

15.     On 24 October 2006, an Authorised Review Officer reviewed the decision and affirmed the original decision of 15 January 2007 to suspend his NSA for eight weeks.

16.     Following a further review by the Social Security Appeals Tribunal (SSAT) on 15 March 2007, the decision was set aside on the grounds that Mr Warren had a reasonable excuse for not complying with the terms of his activity agreement dated 12 July 2007.  The reasonable excuse was concerned with Mr Warren undertaking a community service order (“CSO”) on 12 and 19 July and 2 August 2006 and, attending at Riverwood Police Station in relation to an apprehended violence order issued on 26 July 2007.  The SSAT affirmed that the activity test breaches of 14 October 2005 and 5 May 2006 were appropriate findings.

issues

17.     The relevant issues to be determined in this matter are:

(a)Whether Mr Warren had committed three participation failures within a 12 month period, without having a reasonable excuse for committing any one of the participation failures; and

(b)Whether an eight week non-payment period should be applied to Mr Warren’s NSA.

consideration and findings

18. Section 63(1) of the Social Security (Administration) Act 1999 (“the Administration Act”) details the circumstances whereby an individual is required to attend appointments, when NSA is to be paid. There is no contention by either party that Mr Warren was required to attend various appointments in relation to his application for NSA, and the continued payment thereof. I so find.

19. Section 63(2) of the Administration Act provides for the Secretary to notify a person of a time and place of an appointment. There is no dispute in the matter between the parties as to notification of time and place of appointments as evidenced by Exhibit A3, Annexures A to D. I find that Mr Warren was properly notified of the time and place of the various appointments in question, and that on each occasion was provided with reasonable notice of such.

20.     Section 605(1) of the Social Security Act 1999 (“the Act”) provides that the Secretary may require a person to enter into a Newstart Activity Agreement if the person is receiving NSA.  Section 605(2) of the Act provides the authority for the Secretary to “require a person who has entered into a Newstart Activity Agreement to enter into another such agreement instead of the existing one”.  Section 605(3) of the Act requires the Secretary to give proper notice to the person of the requirement; places and times as well as notice of the requirement at which the agreement will be negotiated, with the Secretary outsourcing the function of administering activity agreements to employment service providers and JNMs.

21.     Prior to July 2006, section 626 of the Act provided for activity test penalties for failure to comply with Newstart Activity Agreements.  By virtue of section 626(1)(a) of the Act, an onus is placed on a person to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify, or continue to qualify, for a NSA.  Failure to take such reasonable steps to comply with the terms of the Newstart Activity Agreement; a NSA is not payable to the person because of the failure: (section 626 (1)(b) of the Act).

22.     Section 626(1A) of the Act defines the quantum of penalty by way of reduction (for one or two failures) or the imposition of a non-payment period (third or subsequent failure) of NSA, with the failures referred to having occurred within a two year period.

23.     Section 624(1) of the Act defines a list of events, which if committed by a NSA recipient results in a Newstart participation failure.  Section 624(2) determines that a Newstart participation failure is not such, if the person satisfies the Secretary that he had a reasonable excuse for the failure.

24.     Section 629 of the Act provides that if a person commits a Newstart participation failure (the repeated failure), having committed Newstart participation failures on two or more occasions in a 12 month period NSA is not payable to a person for a period of eight weeks.

25.     I also acknowledge that while the Social Security (Reasonable Excuse) (DEWR) Determination 2006 is concerned with the payment of special benefit, and failing to accept a suitable offer of employment, it is specific in clause 4(3) that one must be satisfied that the excuse offered had a significant effect on the person’s capacity to comply with the requirement or the provision of the Act to which the failure or refusal relates.

26.     In addressing in turn each purported Newstart participation failure, I shall briefly refer to the factual circumstances, a consideration of the reason provided by Mr Warren of his non-attendance and concluding with a finding of whether or not a reasonable excuse for Mr Warren’s non-attendance existed, and whether a Newstart participation failure had occurred.

(a)14 October 2005 – the first purported Newstart participation failure:

(1)Mr Warren entered into a Newstart Activity Agreement on 12 September 2005, with one of the terms being that Mr Warren was required to attend a Career Development Program from 10 October 2005 until 29 October 2005.  Mr Warren conceded that he did not attend such a program.  Mr Warren stated that the reason why he did not attend was on account of having to drive his sister twice a day to St George Hospital for therapy.  Mr Warren has provided no documentary evidence of the need for such activity, and indeed is noted as having stated that his sister’s doctor refused to provide documentation.

(2)I also note that Mr Warren had contacted his JNM on 12 October 2005 explaining his circumstances and that he was advised to obtain a personal crisis exemption form from Centrelink.  In a further documented note dated 18 October 2005, Mr Warren is reported by the JNM as stating that Centrelink would not provide him with a personal exemption, nor would his doctor provide him with a medical exemption.

(3)In the circumstances as outlined, and to which at the hearing Mr Warren did neither add to or contest, I find in the lack of evidentiary material to substantiate the basis of Mr Warren’s excuse for failing to attend the Career Development Program not a reasonable excuse.  As a consequence, I find that Mr Warren has not taken reasonable steps to comply with the terms of his Newstart Activity Agreement and that such constitutes a Newstart participation failure pursuant to section 626(1) of the Act.

(4)I conclude that the non-attendance at the Career Development Program on 14 October 2005 was Mr Warren’s first Newstart participation “failure”.

(b)5 May 2006 – the second purported Newstart participation failure:

(1)Mr Warren entered into a Newstart Activity Agreement on 24 January 2006, in which Mr Warren agreed to commence, fully participate and complete by 9 March 2006, an Intensive Support Customised Assistance program with his JNM and,  attend fortnightly meetings as requested and, attend assisted job search sessions and, to apply for at least two positions every week from 24 January 2006 to 24 January 2007.

(2)Mr Warren did not attend his appointment on 2 May 2006.  On 3 May 2006, Mr Warren spoke to Centrelink requesting an exemption from attending that week.  Exemption was denied and Mr Warren was advised that he must attend by Friday, 5 May 2006.  Mr Warren did not attend on that Friday.

(3)Mr Warren stated that prior to the period in question he had been booked for driving under the influence and on three occasions for driving without a license.  Mr Warren stated that he had no memory for any reason as to why he did not attend on 2 May 2006; that he did attend at Centrelink on 3 May 2006 seeking an exemption and that this was denied; that he attended the Sutherland Court on 4 May 2006 for the hearing of the outstanding charges, that he received a sentence of 400 hours of CSO on 4 May 2006 and that he attended Court again on 5 May 2006.  Mr Warren stated that he next attended the JNM in the following week, on 8 May 2006.

(4)There is evidentiary material which states that Mr Warren received a 200 hours CSO on 4 May 2006 at Sutherland Court.  There is further evidentiary material indicating that Mr Warren had received a Court ordered, CSO for a further 200 hours, making a total of 400 hours of community service to be undertaken over a period of 18 months.

(5)In the light of all the material before me, I conclude that Mr Warren failed to take reasonable steps to comply with the terms of his Newstart Activity Agreement and therefore committed an activity test breach on 5 May 2006.  In so finding, I have relied upon Mr Warren’s admission that he had no memory for any reason as to why he did not attend on 2 May 2006 and, while mindful of his court attendances, (on 4 and 5 May 2006). I have been unable to ascertain any particular reason as to why Mr Warren did not complete his work activity agreement obligations, despite being instructed to do so on 3 May 2006.

(c)2 August 2006 – the third purported Newstart participation failure:

(1)Mr Warren entered into a Newstart Activity Agreement on 12 July 2006.  Terms of this agreement placed obligations on Mr Warren to attend at 10.00 am to 11.00 am each Wednesday, with the JNM to participate in an assisted job search session and apply for new jobs over a period extending from 12 July 2006 until 21 January 2007.  The activity agreement also placed an obligation on Mr Warren to notify the JNM in advance if he was unable to attend and provide such reason(s) for non-attendance and organise a replacement time.

(2)It is noted that Mr Warren did attend and signed an activity agreement on Wednesday 12 July 2006, continuing the terms referred to above.  On the same day, (12 July 2006), Mr Warren attended the place at which he was serving his CSO from 9.00 am to 2:30 pm.  It is further evident that at this time Mr Warren had changed the day to Wednesday as opposed to a prior (Thursday/ Friday) schedule to attend his CSO workplace (T19 p76).  Mr Warren did not attend his weekly appointment on 19 July 2006, apparently having advised of the change of day to Wednesday to undertake his CSO work on 17 July 2006 and having rung (WHO) to confirm his inability to attend on 19 July 2006, because of his CSO work.

(3)Mr Warren did not attend or notify of his inability to attend for either 26 July 2006 or 2 August 2006.  It is evident, that Mr Warren did undertake some hours of his CSO work on 2 August 2006, while there is no record of Mr Warren undertaking any CSO  work on 26 July 2006.

(4)Mr Warren states that the reason why he did not attend at either CSO work or with his JNM on that day (26 July 2006) was to do with a need for him to attend the Riverwood Police Station, to receive a notice of a complaint lodged at Coffs Harbour Police Station by his ex-partner on 24 July 2006.  I also note that the summons to attend and answer the complaint was not served until 13 August 2006.  Mr Warren concedes that he did not attend the JNM meetings on 26 July 2006 and 2 August 2006 nor did he notify the JNM of his inability to attend.

(5)Mr Warren has provided reasons for his failure to attend JNM meetings on 26 July 2006 and 2 August 2006.  Mr Warren was aware of and understood his obligations arising from his activity agreement.  Mr Warren, while anxious to discharge his CSO work, had been made aware of the necessity to manage such CSO work within the context of his activity agreement.  In the evidence before me, I note that within a five month period (approximately), Mr Warren completed 102.5 hours of CSO work (T19).  Mr Warren has provided no reasons for his failure to advise the JNM as to his inability to attend his JNM obligations on 26 July 2006 and 2 August 2006.  I do not consider that the activities he has stated that he did on the 26 July 2006, provided a reasonable excuse for his non-attendance and/or his failure to advise of his non-attendance.  Further, I do not consider his election to undertake his CSO work on Wednesdays is a reasonable excuse for breaching his activity agreement obligations, particularly in the circumstances of when the election was made, the opportunity to do such work on any other days in the week, coupled with the clear obligations to notify and re-arrange his network obligations, if it was his intention to undertake such work at a time which conflicted with his Newstart activity agreement obligations.

(6)In the circumstances that I have outlined, I find that Mr Warren has failed to comply with a term of his Newstart activity agreement which he entered into on 12 July 2006, and that he has not provided a reasonable excuse for his failure to comply.  In such circumstances, I conclude that a Newstart participation failure has occurred.

27.     Further, I conclude that the material before me provides evidence that Mr Warren has been served with appropriate notice, and despite receiving such notices Mr Warren has failed to comply with his obligations arising out of the activity agreements negotiated with him and to which he agreed.  Further, I conclude that Mr Warren has not provided a reasonable excuse for any of the Newstart participation failures.

28.     In summary, I find Mr Warren committed three Newstart participation failures within a period of one year, (namely 14 October 2005, 5 May 2006 and 2 August 2006).  In such circumstances, Mr Warren’s NSA is not payable for a period of eight weeks pursuant to s 629(1)(a) of the Act.

29.     As a consequence of my findings, I determine that the decision of the SSAT dated 15 March 2007, is set aside and in substitution thereof an eight week non-payment of NSA to Mr Warren be imposed, with the matter remitted to the Applicant to implement the decision.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member

Signed:   ............[sgd]................................................................
                Associate:

Date of Hearing:  16 July 2008
Date of Decision:                   28 August 2008
Representative for the Applicant:              Mr J Larcombe, Centrelink Legal   Services

Representative for the Respondent:         Self-represented