Whitehead and Secretary, Department of Family and Community Services
[2005] AATA 456
•19 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 456
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/350
GENERAL ADMINISTRATIVE DIVISION ) Re JEFFREY BRUCE WHITEHEAD Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member L Hastwell Date19 May 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – unreasonable delay in entering into Preparing for Work Agreement – reasonable terms of the agreement – Activity Test breach – length and amount of rate reduction – decision affirmed
Social Security Act 1991 ss 593, 604, 605, 607, 625, 644AA
REASONS FOR DECISION
19 May 2005 Senior Member L Hastwell 1. On 15 July 2004 a decision was made by Centrelink to impose an Activity Test breach on Mr Whitehead (the applicant) and reduce his rate of Newstart Allowance by 18 percent from 5 August 2004 to 2 February 2005. That rate reduction period was then shortened, as a result of a review by an Authorised Review Officer, from 26 weeks to 8 weeks, covering the period 5 August 2004 to 29 September 2004.
2. The Social Security Appeals Tribunal (the SSAT) affirmed the Authorised Review Officer’s decision on 9 September 2004. The applicant applied to this Tribunal for a review of that decision.
issues for determination
3. The issues to be determined by the Tribunal are:
(i)Did the applicant unreasonably delay entering into the Newstart Activity Agreement, also known as a Preparing for Work Agreement (PFWA)?
(ii)If so, should an Activity Test breach be applied to his Newstart Allowance entitlement?
(iii)What is the length and amount of the rate reduction to be applied to the applicant’s Newstart Allowance entitlement?
legislation
4. The relevant legislation is contained in ss 593, 604, and 607 of the Social Security Act 1991 (the Act). The qualifications for Newstart Allowance as contained in s 593 of the Act include a requirement that a person satisfy an Activity Test throughout the relevant period. Pursuant to s 604(1) of the Act, a person in receipt of Newstart Allowance may also be required to enter into a Newstart Activity Agreement. The relevant sections are as follows:
“593(1)Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
…
(c)if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and
(d)if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and
(e)if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and
(f)while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
…”
5. Section 604(1B) of the Act provides:
“604(1B)The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:
(a) the requirement; and
(b)the places and times at which the agreement is to be negotiated.”
6. Section 605(1)of the Act provides:
“605(1) Subject to this section, if a person who has made a claim for, or who is in receipt of, a newstart allowance is not a party to a Newstart Activity Agreement, the Secretary may require the person to enter into such an agreement.”
7. Section 607(1) of the Act provides:
“607(1) If:
(a)a person has been given notice under subsection 605(3) of a requirement to enter into a Newstart Activity Agreement; and
(b) because the person did not:
(i) attend the negotiation of the agreement; or
(ii) respond to correspondence about the agreement; or
(iii)agree to the reasonable terms of the agreement proposed by the Secretary;
or for any other reason, the Secretary is satisfied that the person is unreasonably delaying entering into the agreement;
then:
(c)the Secretary may give the person notice that the person is being taken to have failed to enter the agreement; and
(d) if the notice is given—the person is taken to have so failed.”
8. Section 644AA(1)A of the Act sets out the applicable rate reduction period that applies to a person in the event of an Activity Test breach.
discussion of the evidence
9. The applicant appeared on his own behalf and made submissions. The documents received by the Tribunal, pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were admitted into evidence. Exhibits were tendered, and where relevant will be referred to. The respondent (the Department) was represented by Mr Kilderry, a Departmental advocate.
10. It was common ground that the Department had exercised its powers under s 604(1) of the Act to require the applicant to enter into a PFWA.
11. It was not disputed by the applicant that the notice requirements of s 604(1)(b) of the Act had been satisfied in a letter sent to the applicant on 29 June 2004 [Exhibit A2/T4] requesting that he attend an interview to discuss his options for participating in work for the dole or community work programs.
12. It was acknowledged by the applicant that he received this letter, and subsequently attended an interview on 13 July 2004 at the Uniting Care Wesley office in Port Adelaide in response to that letter. The applicant acknowledged that he refused to enter into a PFWA at that interview. The PFWA in question was part of Exhibit A4, and had been negotiated at an earlier interview with the applicant.
13. The only issue for the Tribunal to consider is whether, pursuant to s 607(1) of the Act, the applicant had “unreasonably delayed entering into the agreement”, either because he did not agree to the reasonable terms of the proposed PFWA or for any other reason.
14. The applicant told the Tribunal that he refused to enter into the PFWA on 13 July 2004 because he disagreed with the principle of having to work for the dole. He also felt the PFWA was not reasonable in that it was not tailored for him specifically and for his skills. He was a furniture maker by trade, who had voluntarily liquidated a business in 1991, and he lost significant sums of money in the liquidation. He had commenced on unemployment benefits in the mid 1990s, and has been continuously in receipt of benefits since that time.
15. The applicant repeatedly made it clear in his evidence that he considered it quite unfair that he was being asked to work for the dole after contributing taxes for 16 years during his working life. He also rejected the sort of activities he anticipated he would be required to participate in by signing the PFWA, such as gardening, maintenance or picking up papers at Fort Glanville. He said such activities were of no use to him at all in gaining other employment. He said it felt more to him like punishment than working for the dole. He said that he was opposed to the Government’s changes that required recipients to work for the dole. If offered something realistic by way of work experience, he said he would consider participating in the work for the dole program.
16. The applicant raised the issue that he was kept waiting for some two hours before he was able to have his individual interview. He complained that in his view, he was not treated particularly well by staff at Centrelink on 13 July 2004. He said that he was effectively told that he had to reach agreement or he would be subjected to a breach. He felt that there was no one attempting to tailor a program for his particular needs. He made it clear that he was not willing to do the sort of work that he was being offered.
17. The applicant said that he was still under medical certificates as a result of an injury that he sustained in an assault in late July 2004, and shortly after the interview in mid July 2004. He claims to suffer from acute anxiety, and he said he is currently receiving psychiatric assistance. He acknowledged that he was given another opportunity to speak to Centrelink on 28 July 2004 to discuss entering into a PFWA, but because he had already been breached, he elected not to do so. He had also been injured in an assault only a matter of days earlier.
submissions
18. The applicant’s submission was that he had not unreasonably delayed entering into the PFWA as he should not be required to enter into a PFWA at all for the reasons he put forward in his evidence. He was a furniture maker by trade, and would only accept a PFWA tailored to ensure he moved into a field of his choice.
19. The Department’s submission was in accordance with the Secretary’s statement of facts and contentions. The Department had complied with the notice requirements of the legislation, and on 13 July 2004 the applicant refused to sign or enter into a PFWA on the basis that he was opposed to the nature of such obligations, and the concept of working for the dole. The Department submitted that given the long period of unemployment, it was reasonable to require that he enter into such an agreement.
20. Initially the Activity Test breach was imposed from 5 August 2004 to 2 February 2005. However, due to medical certificates proving temporary incapacity for the period 26 July 2004 to 23 August 2004, the rate reduction period had been shortened from 26 weeks to 8 weeks, covering the period 5 August 2004 to 29 September 2004.
consideration of the evidence and application of the law
21. The applicant presented as being aggrieved by the system. He appeared to have a hostile attitude towards Centrelink. He took the view that he should not be required to explore other options for employment outside the narrow boundaries of his former trade, despite a history of eight years of unemployment. He was steadfastly adamant that unless Centrelink were prepared to specifically “tailor” a program to suit his individual needs, as interpreted by him, then he was not willing to co-operate in working for the dole, and it was not reasonable to ask him to enter the PFWA. He also expressed a strong philosophical opposition to the policy of requiring recipients of Centrelink benefits to work for the dole. He considered that any agreement was unreasonable that imposed on him requirements that lay well outside his area of expertise, and that in his mind were menial.
22. In cross-examination it was put to the applicant that it is not unreasonable to require a person who has been long-term unemployed to enter into a PFWA that required him to explore other options for work. The applicant had no response, other than to say that it was not reasonable to expect him to participate in a work for the dole program.
23. The applicant was unwilling to budge at all on his stated position. He considered that it would make his builders’ licence worthless if he participated in a program that did not directly put him back in the field in which he wished to work.
24. The Tribunal finds as follows:
·The applicant was in receipt of Newstart Allowance at the relevant time.
·On 29 June 2004 he was sent a letter by his job network provider requesting him to attend an interview with Uniting Care Wesley, Port Adelaide, to discuss options for participating in work for the dole or community work programs.
·On 13 July 2004 the applicant attended at Uniting Care Wesley, Port Adelaide. He was granted an individual interview, during which he refused to sign or enter into a PFWA. It appears that the reason given at the time was that he was opposed to such agreements, and he reiterated that to the Tribunal, but added his strongly held belief that because of his particular skills he should not be required to do any work that was outside his area of expertise, which was a specialised area of furniture making.
·The applicant believes that he has an entitlement to receive unemployment benefits without having to participate in a work for the dole program because of contributing to the tax system during his working life.
·The PFWA that the applicant was asked to sign was reasonable in the circumstances [Exhibit A4], particularly given his long history of unemployment and lack of success in finding work.
·The applicant had no good reason for refusing to enter into the PFWA other than his strongly held personal opposition to it. He has had a significant period of unemployment, and it is fair that there be exploration as to other options available to him in the community that may arise out of working for the dole. He rejects the notion of mutual obligation arising out of the legislation, and holds the view that he has an entitlement to dictate the terms of his obligations. Unfortunately the terms of the legislation are clear, and the applicant, as a recipient of benefits, is subject to the principle of mutual obligation.
25. The Tribunal is satisfied that he unreasonably delayed entering into the PFWA within the meaning of the Act, in that he refused to sign the PFWA. The Tribunal finds that notice of breach was given to the applicant twice. He was first given notice of a breach on 15 July 2004, then on 22 July 2004 a more accurate reason for the breach was given to him, namely that he did not enter into a PFWA [Exhibit A2/T7].
26. The Tribunal finds the applicant’s attitude towards the PFWA unreasonable. He has been long-term unemployed, he is receiving benefits and it is reasonable that he be required to explore all options for employment.
27. Initially, the applicant’s rate was reduced by 18 percent from 5 August 2004 until 2 February 2005. He was assaulted and produced a medical certificate indicating that he was unfit for employment for the period 26 July 2004 to 9 August 2004, and then from 10 August 2004 to 23 August 2004. As a result of this, his rate reduction period was reduced to 8 weeks.
28. The Tribunal considered the application of ss 625 and 644AA of the Act. The Activity Test breach that was applied to the applicant was the first in the preceding two year period, and so the appropriate initial rate reduction was 18 percent for a period of 26 weeks. Pursuant to s 644AA(1D) of the Act, the Secretary has the discretion to reduce the Activity Test breach rate reduction period to 8 weeks if satisfied that the failure to undertake the activity is for reasons outside the person’s control. The Secretary accepted that the applicant was unable to attend an interview on 28 July 2004, at which he could have made good his earlier refusal to enter into the PFWA, and this was due to medical reasons and so the breach was reduced to 8 weeks. This was appropriate in the circumstances.
29. The Tribunal is satisfied that the correct decision was made by the delegate, and affirms the decision under review, which means that the application is not successful.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDate of Hearing 6 April 2005
Date of Decision 19 May 2005
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr R Kilderry
Solicitor for the Respondent Centrelink Legal Services Branch
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