Williams; Secretary, Department of Family and Community Services

[2003] AATA 284

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 284

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  T2002/241   

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And STEVEN WILLIAMS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date26 March 2003

PlaceHobart

Decision

The decision under review is set aside and in substitution therefor the Tribunal finds:

(a)    the respondent committed an activity test breach because he failed to satisfy the activity test without reasonable excuse; and

(b)     that as a consequence an activity test breach rate reduction applies to the respondent; and
(c)     that the respondent’s rate reduction is 18% for the 26 week period from 29 April 2002 to 22 October 2002.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social security - youth allowance (YA) - work for the dole (WFD) - work agreement - absence - attendance - travel distance - public transport - activity test - breach - reasonable excuse - Community Work Coordinator (CWC) - Review Officer.

Legislation:

Social Security Act 1991 – ss23, 28, 541, 541F, 544, 544A, 544B, 550A, 557, 557A, 557B, 557E

Social Security (Administration) Act 1999

Guide to Social Security Law

Authorities:

Bender and Department of Family and Community Services (1999) AATA 119 (8 March 1999)

REASONS FOR DECISION

26 March 2003	Associate Professor B W Davis AM (Part-time Member)
Decision Under Review

1.      The applicant seeks review of a decision made by the Social Security Appeals Tribunal (SSAT) dated 13 August 2002, setting aside a decision of Centrelink of 22 May 2001, that the respondent (Steven Williams) had not committed an activity test breach and therefore no activity test breach rate reduction should be applied.

The Issue

2.      The issue is whether Steven Williams committed an activity test breach, because he failed to satisfy the activity test without reasonable excuse, and whether as a consequence an activity test breach rate reduction applies for the period 29 April 2002 to 27 October 2002.

Background

3.      The respondent (Mr Steven Williams) was in receipt of a Youth Allowance (YA) during part of 2002 and had signed a Preparing for Work Agreement to participate in a Work for the Dole (WFD) program at the suburb of Andrews, near Burleigh Heads, Queensland.   He had sought transfer from an earlier WFD Agreement signed on 29 December 2001, involving a project at Beechmont, claiming there were transport difficulties from his home suburb of Stephens.

4.      His new Preparing for Work Agreement dated 27 February 2002, assigning him to a project in Andrews, required him to sign a Participating Agreement, which he did on 26 March 2002, having missed an induction session on 22 March 2002 due to illness.   The Department of Family and Community Services (DFCS, the applicant) claims that the respondent failed to attend the Andrews project on several occasions and did not contact his Community Work Coordinator (CWC).   A breach was recommended on 17 April 2002 and on 19 April 2002 a notice was sent to the respondent advising that a breach might be imposed and asking Mr Williams to contact Centrelink by 26 April 2002.

5.      On 29 April 2002 a breach was imposed on the respondent, this decision being affirmed by an Authorised Review Officer on 22 May 2002.   As a consequence of this decision the respondent was made subject to an 18% rate reduction in respect of his YA payment for the period 29 April 2002 to 27 October 2002.

6.      Mr Williams disagreed with this decision and applied for review by the SSAT, which heard the matter in Launceston on 13 August 2002, the respondent having moved from Queensland to Tasmania in the interim.

7.      In information provided to the SSAT, Mr Williams and his mother stated that, on information about bus timetables, he believed he was very restricted about travel times and could not reach Andrews from his residence in Stephens other than outside his nominated start-time of 8.30 am.   He had attended the project on two occasions, travelling via a borrowed bike (40 mins) and another time when his father gave him a lift.   It was too difficult by public transport and about a 90 minute walk, with problems in his ankles and heels making walking slow and painful.

8.      In relation to the Community Work Coordinator (CWC), Mr Williams said he had not received any phone messages since his pre-paid phone had `run-out’ and he could not retrieve messages for several weeks.

9.      The SSAT noted that Mr Williams did not attend the project on 4, 5, 9 or 10 April and that on 12 April the CWC left a phone message, but a follow-up letter might also have been appropriate.   The Tribunal also verified that Mr Williams did attend work on 16 April 2002, although this did not appear to have been documented by the CWC or Centrelink.

10.     Having weighed this information and other evidence, the SSAT decided Mr Williams had not committed an activity test breach under s550 of the Act, and an activity test breach rate reduction should not have been applied.   The Tribunal considered it would be unfair to penalise Mr Williams, since transport problems existed and the CWC failed to follow-up Mr Williams absences, seeking reasons why he failed to attend.

11.     The Department of Family and Community Services did not accept the SSAT decision and applied for review of the case on 30 September 2002.

The Hearing

12.     The matter was heard in Burnie, Tasmania, on Wednesday 5 March 2003.   Mr John Crookes appeared for the respondent (Steven Williams) while the DFCS as applicant was represented by Mr Brian Sparkes.   The applicant submitted a witness statement by Ms Sharon Cabban, an authorised review officer of the Palm Beach Customer Service Centre, DCFS, Queensland and other documents concerning bus timetables and travel distances.   Counsel for the applicant also drew attention to an error in paragraph 7.4 of the DFCS Statement of Facts and Contentions, wherein it had been claimed the respondent lived approximately 2.5 km from the location of his WFD project.   The correct figure was nearer 5.2 km.

13.     Following opening comment, Ms Sharon Cabban was called as witness by the applicant.   Ms Cabban stated she was familiar with geography of the Palm Beach area, including the suburbs of Andrews and Stephens nearby, having lived in the area for many years.   She had ascertained that public transport had been available to the respondent at his previous work for the dole location at Beechmont.  As part of the review process she had also obtained information about bus routes and timetables from the suburb of Stephens to Mr Williams second work for the dole site at St Andrews Lutheran Village.   It was quite feasible for Mr Williams to depart Stephens at 7.19 am, reaching Burleigh Heads at 7.28 am. Transferring to another bus at 7.47 am, arriving at West Burleigh at 7.54 am.    The distance from West Burleigh to St Andrews was about one kilometre, thus there was ample time to arrive for work prior to 8.30 am.   Buses were available later in the day for the return journey.

14.     Counsel for the respondent argued that the SSAT decision had been correct.  There were transport problems to reach a site more than 5 km from Mr Williams’ place of residence, he had physical disabilities which made walking a slow process and it appeared the DFCS had imposed a breach and was pursuing it, despite the small sum involved.

15.     Counsel for the applicant then called Steven Williams as witness.   Mr Williams stated he regarded the transport situation as difficult, could not walk the direct route to Andrews and admitted he had failed to attend the work for the dole project on several occasions.   He claimed that when he did receive the breach notice, he tried to make an appointment to discuss it, but the date set was at a time he was moving to Hobart and he visited the DFCS as soon as he arrived there.   He claimed that most dealings in Queensland were with a CWC person at Nerang.  Since arrival in Tasmania he had sought and obtained some limited term employment.

16.     In closing comment Mr Sparkes for the applicant argued that the legislative requirements were clear; Mr Williams had to demonstrate to the Department he had taken all reasonable steps to attend his WFD project, but had failed to do so.  It had been clearly proven public transport was available, but Mr Williams had merely regarded this as `difficult’ and never really explored the prospect.   Counsel for the respondent (Mr Crookes) rejected this view, arguing that Mr Williams and his mother had sought transport information, but somehow noy discovered the options.   Mr Williams had taken all reasonable steps in the matter, as the SSAT had decided.

Legislation

17.     Several sections of the Social Security Act 1991 and the related Social Security (Administration) Act 1999 are relevant to this case, but much turns on s28 of the 1991 Act, dealing with approved programs of work for unemployment payment, s541F dealing with `reasonable steps’ and 541 generally, dealing with activity tests. Section 544 specifies all requirements relating to Youth Allowance Activity Agreements.

18.     In Bender v DFCS (1999) AATA 119 (8 March 1999) it was necessary for the applicant to provide a reasonable excuse as to any why particular actions were taken, if challenging imposition of a penalty of DFCS for an activity test breach. The Bender case dealt with newstart allowance, rather than youth allowance, nonetheless the Tribunal must consider whether Mr Williams had a reasonable excuse for failure to attend his WFD project at Andrews.

Analysis

19.     The Tribunal is required to stand in the shoes of the decision-maker, but examine all evidence anew, while recognising statutory provisions and all contextual circumstances.

20.     It is quite clear that once Mr Williams signed up for the WFD program and entered into an activity agreement, he was bound to take all reasonable steps to comply with its provisions, including attendance at the WFD site on all specified dates.   If he was unable to do so, then an obligation existed to advise DFCS of reasons for absence.  For its part DFCS was required to consider such circumstances and ameliorate them if possible.

21.     Mr Williams’ initial complaint about the Beechmont project was noted and DFCS then identified an alternative at Andrews.   While it would have been unreasonable to expect Mr Williams to walk the substantial distance involved between Stephens and Andrews, his investigation of transport options at both Beechmont and Andrews appears somewhat superficial, his attitude being it was all too difficult.   On the other hand a query arises as to whether the DFCS and the relevant CWC were diligent enough in seeking reasons for his absence from the Andrews project.   A phone message was left, but a follow-up letter would clearly have been advisable.

22.     On balance the Tribunal is not convinced Mr Williams made a truly diligent investigation of his transport options to Beechmont or Andrews.   His absences from the Andrews site are admitted, thus DFCS was within its rights to identify a prospective activity breach, to advise Mr Williams of this action and to give him time to produce any mitigating evidence if existed.   No such evidence was produced at the time, hence the breach was imposed.

23. In later evidence to the SSAT hearing, Mr Williams claims he believed the information supplied to him by the Queensland Government Information Service that he could not get to the Andrews project until after 11 am and he considered it unreasonable to walk the distance involved. He does not appear to have informed the DFCS of this and sought new advice; he claims to have contacted the QVFT (Queensland Vocational Training College) and merely left it at that. The query is whether this constitutes a `reasonable excuse’ or `taking all reasonable steps’ within the provisions of ss541 and 544 of the Social Security Act 1991..   In the view of the Tribunal it does not; any problem of this kind has to be resolved to the satisfaction of the Secretary (and hence Department) and Mr Williams did not seek such clarification or take action himself to verify whether all transport options had been explored.   It would not appear a difficult task to actively seek some bus timetables for the suburbs involved.

24.     Bearing the above and all other evidence in mind, the decision of the Tribunal is that the original determination (imposing a breach) should be confirmed and the decision of the SSAT set aside.

Decision

25.     The decision under review is set aside and in substitution therefor the Tribunal finds:

(a)the respondent committed an activity test breach because he failed to satisfy the activity test without reasonable excuse; and

(b)that as a consequence an activity test breach rate reduction applies to the respondent; and

(c)that the respondent’s rate reduction is 18% for the 26 week period from 29 April 2002 to 27 October 2002.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  KL Miller (Administrative Assistant)

Date/s of Hearing  5 March 2003 
Date of Decision  26 March 2003
Counsel for the Applicant         Mr Brian Sparkes
Solicitor for the Applicant           Centrelink
Counsel for the Respondent     Mr John Crookes
Solicitor for the Respondent      Launceston Legal Community Services