Win and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 488

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 488

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos  2008/3980

GENERAL ADMINISTRATIVE DIVISION		)                   and 2009/1065
Re		NAING WIN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date1 July 2009

PlaceAdelaide

Decision

1.        In matter number 2008/3980 the tribunal affirms the decision under review.

2.        In matter number 2009/1065, the tribunal sets aside the decision under review, and remits the matter pursuant to s 43(1)(c) for reconsideration in accordance with the directions of the  tribunal contained in its reasons for decision.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

SOCIAL SECURITY - Pensions, benefits and allowances - Newstart allowance - Newstart participation failures - failure to attend appointments - failure to comply with Newstart Activity Agreement - whether notification of appointments included compliance warning - cancellation of Newstart allowance - applicant had no reasonable excuse for participation failures - decision in relation to first non-payment period affirmed - decision in relation to second non-payment period set aside.

Social Security Act 1991 (Cth), ss 593, 601, 605, 606, 624 and 629

Social Security (Administration) Act 1999 (Cth), ss 63, 64 and 80

Social Security (Reasonable Excuse) (DEWR) Determination 2006, s 4

Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988

REASONS FOR DECISION

1 July 2009   Deputy President D G Jarvis

1.      The applicant, Naing Win, has been receiving Newstart allowance (NSA), according to his recollection, since 2002.

2.      He was referred to an employment service provider, Workskil Inc, in June 2006, for support in looking for work and training opportunities.  Appointments were arranged for him with Workskil on six dates, namely:

(a)      29 August 2007, 17 December 2007 and 14 March 2008; and

(b)      6 November 2008, 4 December 2008 and 23 December 2008.

3.      Mr Win failed to attend the first two appointments, and failed to complete the activities required to be undertaken at the third appointment.  He also failed to keep the last three appointments.  Workskil reported these matters to Centrelink, who decided that Mr Win had committed, without reasonable excuse, Newstart participation failures on each of the dates referred to above, and as a result, imposed an 8 week non-payment period in respect of the three participation failures that occurred on the dates referred to in paragraph 2(a) above, and a further 8 week non-payment period in respect of the further participation failures that occurred on the three dates referred to in paragraph 2(b) above.

4.      Reviews of the above decisions by an authorised review officer (ARO) and later by the Social Security Appeals Tribunal (SSAT), at the request of Mr Win, resulted in the decisions relating to the participation failures being affirmed.

5.      Mr Win has applied to this tribunal for review of the two decisions of the SSAT.

6.      Mr Win is aged 44.  He was born in Burma and studied Buddhism and became a Buddhist monk.  When he was 23, he left Burma, and went to New Zealand as a refugee in 1994.  In 1999 he came to Australia as a New Zealand citizen, and in 2005 he moved to Adelaide.

Issues before the Tribunal

7.      The issues before the tribunal are:

(a)      whether Mr Win committed Newstart participation failures on the above dates;

(b)if he did commit such failures, whether he had a reasonable excuse for all or any of those failures; and

(c)whether one or both 8 week non-payment periods should be applied to cancel his NSA.

Legislation

8. Section 593 of the Social Security Act 1991 (Cth) (the Act) provides for the criteria for qualification for NSA. It provides relevantly:

“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

…

(b)in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:

(i)satisfies the activity test; or

…”

9. Section 601 provides for when a person satisfies the activity test, and provides relevantly as follows:

“601(1)Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a)    actively seeking; and

(b)    willing to undertake;

paid work in Australia, other than paid work that is unsuitable to be undertaken by that person.

…

(4)A person also satisfies the activity test in respect of a period if, throughout the period, the person is complying with the terms of a Newstart Activity Agreement between the Secretary and the person.

(5)If a person fails to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).”

10. Section 605 of the Act states what a Newstart Activity Agreement is, and provides for when persons are required to enter into such agreements. It provides relevantly as follows:

“605(1)Subject to this section, the Secretary may require a person who is not a party to a Newstart Activity Agreement to enter into such an agreement if:

(a)the person is receiving, or has made a claim for, a newstart allowance; or;

…

(4)A Newstart Activity Agreement is a written agreement in a form approved by the Secretary.  The agreement is between the person and the Secretary.”

11. Section 606 provides for the terms that can be included in Newstart Activity Agreements. It provides relevantly as follows:

“606(1)Subject to sections 607 to 607B, a Newstart Activity Agreement with a person is to require the person to undertake one or more activities that the Secretary regards as suitable for the person.

…

(2)The terms of an agreement, which include the specification of the activities that the person is to be required to undertake, are to be approved by the Secretary.

…”

The section goes on to provide that the Secretary must have regard to the person’s capacity to comply with the proposed agreement and to the person’s needs, and lists a series of non-inclusive factors that the Secretary is to take into account, such as the person’s education, experience, skills and age, physical or mental condition, the state of the labour market and a number of other relevant considerations. The section provides that such agreements must not contain certain requirements, but that proscription is not relevant to the present proceedings. Provision is also made in s 606(5) for the agreement to be varied by negotiation, suspended or cancelled.

12. Section 624 of the Act provides for circumstances in which a person commits a Newstart participation failure. It includes reference to a section in the Administration Act that is relevant to the present matter, namely s 64(4), whereby persons receiving benefits can be notified that they are required to undertake a specified activity, or to attend at a particular place for a particular purpose. Section 624 also provides for what must be included in the notification. Section 624(1) provides relevantly as follows:

“624(1)    A person commits a newstart participation failure if the person:

(a)    fails to comply with a requirement:

(i)that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii)that was reasonable; and

(iii)the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or

…

(d)fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or

…”

13. Section 624(1) is ameliorated by s 624(2), which provides in effect that a failure of the kind referred to in s 624(1) is not a Newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure. Under s 624(2A), the Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of s 624(2), a person had a reasonable excuse for committing a Newstart participation failure. Under s 624(2B) such a determination does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of s 624(2), a person had a reasonable excuse for committing a Newstart participation failure.

14. The Secretary has made a legislative instrument in accordance with s 626(2A) of the Act, namely the Social Security (Reasonable Excuse) (DEWR) Determination 2006 dated 3 February 2006 (the “Determination”, a copy of which is exhibit R5). Section 4(2) lists a number of matters that the Secretary must take into account, and they include “the literacy and language skills of the person, if the person’s lack of such skills is significant” (section 4(2)(b)). Section 4(3) of the Determination provides that the preceding subsections do not apply “unless the Secretary is satisfied that the matter 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”.

15. By virtue of s 629 of the Act, NSA is not payable to a person where there are repeated participation failures. This section provides relevantly as follows:

“629(1)A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

(a)commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or

…

(2)For the purposes of paragraph (1)(a), disregard any earlier failure that is a failure to which subsection 626(1) does not apply because of subsection 626(2).

(3)Subsection (1) does not apply in relation to the repeated failure if the Secretary is for any other reason satisfied that subsection (1) should not apply to the failure.”

16. As appears from s 624(1)(a)(i), to which I referred in paragraph 12 above, a Newstart participation failure is committed if a person fails to comply with a requirement that was notified to him or her under ss 63(2) or 64(2) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Section 64(2) of the Administration Act is relevant to the present matter. That provides relevantly in effect that if the Secretary is of the opinion that a person receiving certain benefits, including NSA, should attend a particular place for a particular purpose, the Secretary has a discretion to notify the person that he or she is required, within a specified time, to attend that place for that purpose. Under s 64(3), the Secretary may notify a person for the purposes of s 64(2) by sending the notice by prepaid post addressed to the person at his or her last known postal address, but that does not prevent the giving of notice in any other way.

17. Like s 624(1) of the Act, s 64 of the Administration Act also includes provision for what must be included in a notification by the Secretary. Section 64(5) provides:

“64(5)A notification under subsection (2) must inform the person to whom it is given of the effect of this section.”

18. Under s 64(4), if the requisite notification has been given, the person concerned does not take reasonable steps to comply with the requirement of the notice, and the decision-maker is satisfied that it is reasonable for the section to apply to the person, the payment that the person is receiving is not payable. Section 64(4) provides as follows:

“64(4)     If:

(a)    the Secretary notifies a person under subsection (2); and

(b)the Secretary is satisfied that it is reasonable for this section to apply to the person; and

(c)the person does not take reasonable steps to comply with the requirement of the notice;

the payment that the person is receiving or has claimed is not payable.”

19. Section 80 of the Administration Act also provides for the cancellation of a social security payment where the Secretary is satisfied that a person is not, or was not, qualified for the payment. It provides as follows:

“80(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)    who is not, or was not, qualified for the payment; or

(b)    to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.”

Consideration

20.     I shall first consider whether Mr Win committed the asserted participation failures, and then whether he had a reasonable excuse for all of any of those failures.

Did the applicant commit participation failures?

21.     Mr Win acknowledges that he did not attend the appointments with Workskil on five of the six dates referred to in paragraph 2.  Of the six appointments on those dates, he only attended the appointment on 14 March 2008.

22.     In the case of the appointment with Workskil on 29 August 2007, written notice was given to Mr Win advising him of the appointment and of his obligation to attend and the consequences of not doing so (see exhibit R1, T14, pages 79 – 86).  I further find that he was given verbal notification of the appointment on 17 December 2007 in terms which complied with the Act (see paragraphs 29 – 31 below).  He accepts that on the remaining date, 14 March 2008, he attended at Workskil, but left before completing the activities required to be undertaken at that appointment.

23.     I am satisfied that Mr Win committed the asserted participation failures on 29 August 2007, 17 December 2007, and 14 March 2008.

24. However, whilst it appears that Mr Win was aware of the appointments on 6 November 2008, and 4 and 23 December 2008, there is no evidence before me that he was given a notification of those appointments in a form that complied with s 624(1)(iii) of the Act, which requires the notification to include a statement to the effect that a failure to attend the appointments could constitute a Newstart participation failure. After the completion of the hearing, I gave the respondent an opportunity to adduce further evidence as to this matter. The respondent advised that Centrelink’s usual business practice is for a “compliance warning” to be given orally when a customer attends Centrelink to lodge his or her application for payment form, but the warning was not documented on Mr Win’s record and no further information could be presented.  The respondent accordingly agreed that Mr Win’s application should be determined on the evidence already provided to me.

25. There is no evidence before me of any written or verbal notification to Mr Win of the appointment on 6 November 2008. Exhibit R2 includes computer printouts of information that refers to appointments on 4 December 2008 (T18, page 76) and 23 December 2008 (T17, page 81). It is not clear whether the information was printed on to some other document that contained printed text, or if so, what the contents of that text were. However, there is no evidence that any such text included a compliance warning, and I infer from the respondent’s response to the post hearing communication referred to in the preceding paragraph that the notifications did not include any such warning. In these circumstances I am not satisfied that Mr Win has committed participation failures on the three dates in question within the meaning of s 624(1)(a) of the SS Act. The decision under review in relation to the asserted participation failures that occurred on those dates should be therefore be set aside.

Did the applicant have a reasonable excuse for the first three asserted participation failures?

26.     In order for a person to take advantage of legislative provisions affording relief from a participation failure because the person has a reasonable excuse for non-compliance it is necessary for the person to give a reason or reasons why the failure occurred.  The tribunal must then consider the excuse put forward by the person, and decide whether it was reasonable; it should not approach the matter by deciding whether it considers that in all the circumstances, the person should be excused for the non-compliance: Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988. In that case, Kiefel J said, at [7]:

“… the tribunal was obliged to consider what the respondent said was the reason for his non attendance.  It may be expected that this would involve his state of mind, but I do not think it is correct to frame the statutory inquiry by reference to it.  It simply requires a consideration of the excuse put forward.”

27.     I shall now turn to the reasons given by Mr Win for the first three asserted participation failures.

28.     Asserted participation failure on 29 August 2007 : Mr Win gave evidence that he did not attend the appointment on 29 August 2007, because he had previously telephoned Workskil and cancelled the appointment for the reason that he had transferred to the Salvation Army.  However, Mr Win admitted that he had no papers from the Salvation Army, and whilst it appeared from his evidence that he had on occasions been to the Salvation Army for some purposes, there is no evidence that the Salvation Army had become his employment service provider.  Further, Mr Win produced no evidence that might support his asserted belief that at a time prior to the appointment on 29 August 2007, the Salvation Army had become his employment service provider in place of Workskil.

29.     Asserted participation failure on 17 December 2007 : Mr Win maintained that he had not received written notification of the appointment with Workskil on 17 September 2007, and further denied that he had been informed verbally of that appointment.

30.     In the case of this appointment, the Secretary acknowledges that no written notification was provided.  However, a Centrelink officer, Karl Smith, gave evidence that on 17 September 2007 he conducted a reconnection interview with Mr Win by telephone in consequence of the prior participation failure on 29 August 2007.  Mr Smith said that he works for the Centrelink National Call Centre as part of the Participation Solutions Team.  He said he had no independent recollection of the interview, but by reference to notes made at the time, said that he advised Mr Win of the appointment on 17 September 2007 at Workskil Norwood, and also advised him in effect that not attending the re-connection appointment might result in a participation failure and a loss of payment.  A copy of Mr Smith’s notes is included in exhibit R1, as T20, page 130.

31.     I accept the evidence of Mr Smith.  Whilst he had no independent recollection of the telephone conversation, he gave evidence from contemporaneous notes, and was a careful and patently honest witness.  He gave evidence in a matter-of-fact manner.  On the other hand, Mr Win clearly resents and mistrusts Workskil, and appeared to be unwilling to try to understand or accept his obligations under the job network scheme.  He thought that it was a waste of time to attend appointments “over and over again” (exhibit A1).  He said that even if he had been aware of the appointment with Workskil on 17 September 2007, he would not have attended, because that was a Monday, and he attends the library to use the internet and prepares circulars on Buddhism every Monday.  It may well be that his hostile attitude to Workskil, or alternatively the effluxion of time since this discussion and the fact that it was but one of many telephone conversations that he had with Centrelink or Workskil, have affected his recollection of the conversation with Mr Smith, and that those matters explain his denial that he was given notification of the appointment by telephone.  I do not accept this denial, and I prefer the evidence of Mr Smith that he told Mr Win of the date and time of the appointment on 17 September 2007 with Workskil.  I further accept that he told Mr Win that not attending the appointment might result in a participation failure and a loss of payment.

32.     Asserted participation failure on 14 March 2008 : Mr Win gave evidence that after the participation failure on 17 September 2007, he sought to transfer to another employment service provider, namely Holmesglen.  He went to Workskil and they provided a form headed “Details for a By Agreement Transfer” (exhibit R2, T8, page 46).  The form was dated 2 October 2007 and was partially filled out, partly by Mr Win, and partly by an officer called Debbie from Workskil.  Mr Win gave evidence that he took the form to Holmesglen on 2 October 2007.  He saw an officer of Holmesglen and told both that person and later that day someone from Centrelink, that he wanted to transfer to Holmesglen because he did not like Workskil.  However, Holmesglen did not complete or sign the transfer form, and Mr Win agreed that he received no paperwork or confirmation from Holmesglen to the effect that they had accepted the transfer.  Further, the manager of Workskil’s Norwood office, Ms Tracey Scrutton, gave evidence from Workskil’s records to the effect that Workskil subsequently made inquiries of Holmesglen, and were advised on 17 October 2007 that they would not accept the transfer to them of Mr Win, and as a result, Mr Win continued to be a client of Workskil.

33.     It is clear from the documents before me that in fact, Mr Win continued to receive communications from Workskil, and he subsequently entered into an activity agreement with Workskil on 8 January 2008.  This made it clear that it was Workskil who were providing employment services to Mr Win.  The agreement detailed the activities that Mr Win was required to undertake in order to continue to receive NSA.  One of many activities was to attend work preparation on Tuesdays, Wednesdays and Thursdays from 9.30 am to 12 noon from 9 January to 10 April 2008.  I am satisfied that there was no basis after the date when this agreement was entered into on which Mr Win could reasonably have believed that he had been transferred to Holmesglen, or that that organisation had become his employment service provider in place of Workskil.

34.     There appears to be no dispute as to the relevant events on 18 March 2008.  Mr Win attended Workskil, but was upset because his NSA had been suspended by Centrelink notwithstanding that he claimed to have cancelled the earlier appointments.  He admitted to shouting and banging the counter on three occasions.  The manager, the witness Ms Tracy Scrutton, gave evidence that she heard shouting from the reception area, and saw Mr Win and asked him to leave because of his behaviour.  Mr Win then left without completing the activities he was required to undertake pursuant to the activity agreement he had entered into with Workskil.  His behaviour amounted to an actual or constructive refusal to complete the relevant activities.

Did the applicant have a reasonable excuse for the asserted participation failures on 6 November and 4 and 23 December 2008?

35.     I have already found that there were no participation failures on the above dates because the notifications of the appointments did not include a compliance warning.  Nevertheless, for the sake of completeness, I will now consider whether Mr Win had a reasonable excuse for his admitted failure to attend the appointments in question.  He claimed that in each case, he had telephoned Workskil prior to the appointment and cancelled it, saying that he had transferred to Holmesglen.

36.     However, for the reasons referred to above, I find that Mr Win had not been transferred to Holmesglen.  On the contrary, he continued to have communications with Workskil, and to attend Workskil’s office, and there was no basis on which he could reasonably have understood that Workskil was no longer his employment service provider.

37.     Literacy and language skills : As appears from the Determination referred to in paragraph 14 above, the Secretary (and this tribunal, standing in the shoes of the Secretary) must take into account Mr Win’s literacy and language skills, if his lack of such skills is significant.

38.     As to this issue, I note that the ARO recorded that while Mr Win seemed to understand what was being said to him over the telephone, he (the ARO) found it somewhat difficult to understand all that Mr Win was saying, but Mr Win declined to use an interpreter (exhibit R1, T4, page 24).  I also note that in its reasons for the first of the above decisions, the SSAT recorded that at the start of the hearing before it, Mr Win told the SSAT that he did not wish to use an interpreter, and that the SSAT found his spoken English quite difficult to understand (exhibit R1, T2, page 7).  In its second decision, the SSAT recorded that when arranging the hearing, the SSAT encouraged Mr Win to allow the SSAT to be assisted by an interpreter, but Mr Win insisted that an interpreter was not required and did not wish to have an interpreter attend the hearing.

39.     In order to ensure that Mr Win understood the proceedings and that I understood what he said, I arranged for a Burmese interpreter to be available for the duration of the hearing before me, and he interpreted the entirety of Mr Win’s evidence.  I also invited Mr Win to inform me if he required the interpreter to assist when the Secretary’s witnesses gave evidence, or in relation to any other things said during the hearing, but Mr Win did not request the interpreter’s assistance.

40.     I also note that with his first application for review to this tribunal, Mr Win lodged a synopsis of a book that he has written entitled “Pilgrimage to Happiness My Lifelong Search for Myself”.  This synopsis is written in excellent English.  Mr Win tendered various other documents, some of which were letters written by him.  These are not as well written as the synopsis, but show that he has a reasonable command of English.

41. On a few occasions during the hearing, Mr Win spoke in English. He had a heavy accent and I found it difficult to understand what he said. I also note that in various documents, reference is made by various persons who had telephone conversations with Mr Win that they found it difficult to understand what he was saying. However, for the purpose of determining whether notification was given of the appointment on 17 September 2007, I must determine whether Mr Win was likely to have understood what was said to him. I am satisfied, from the matters referred to in the two preceding paragraphs, that Mr Win would have understood what Mr Smith said to him during the course of the telephone discussion which Mr Smith gave evidence about. I note that under s 4(3) of the Determination, the excuse relating to literacy and language skills does not apply unless the decision-maker “is satisfied that the matter had a significant effect on the person’s capacity to comply with the relevant requirement”.  I am not so satisfied.

42.     Other matters : I have considered the various documents tendered by Mr Win in support of his application (exhibits A1 – A9).  Some of these documents reiterate the matters raised by Mr Win when he gave evidence, and I have addressed these above.  Mr Win also asserts that Workskil and the National Australia Bank have stolen certain Centrelink payments, and accuses Workskil of telling lies about his case.  However, he did not provide any further details of these assertions when he gave evidence, or provide any other evidence to support his assertions.  He also made reference to Centrelink not meeting a claim for child support for his step child, and referred to his financial position.  Those matters are not relevant to the asserted participation failures.

Summary and Directions

43. I am satisfied that the appointments on 29 August and 17 December 2007, the obligation to attend those appointments, and the consequences of failing to do so were duly notified to Mr Win, and that he did not comply with the terms of his activity agreement on 14 March 2008. Mr Win has not satisfied me that he had a reasonable excuse for any of the participation failures that gave rise to the imposition of the non-payment period resulting from those participation failures. In all of the circumstances, I am not satisfied that those participation failures should not result in the application of s 629(1) of the Act, whereby NSA is not payable to Mr Win during the 8 week non-payment period. On the contrary, I think it appropriate to impose the 8 week non-payment period on account of those participation failures.

44.     However, for the above reasons, I find that Mr Win did not commit participation failures on 6 November, 4 December or 23 December 2008, because there is no evidence before me that the notification of those appointments included a compliance warning as required by the Act.  Accordingly, an 8 week non-payment period should not have been imposed in respect of the non-attendance at the appointments on those dates, and Mr Win should be paid Newstart allowance in respect of the 8 week non-payment period incorrectly imposed.

Decision

45.(a)  In matter number 2008/3980 the tribunal affirms the decision under review.

(b)In matter number 2009/1065, the tribunal sets aside the decision under review, and remits the matter pursuant to s 43(1)(c) for reconsideration in accordance with the directions of the tribunal contained in its reasons for decision.

I certify that the 45 preceding paragraphs are
a true copy of the reasons for the decision herein
 of Deputy President D G Jarvis

Signed:         .....................................................................................
           L. Staker  Associate

Date/s of Hearing  5 May 2009 

Date of receipt of final

submissions  17 June 2009
Date of Decision  1 July 2009
Applicant  In person
Advocate for the Respondent   Ms M Welfare 
Solicitor for the Respondent     Centrelink Legal Services Branch