Yarde and Secretary, Department of Employment and Workplace Relations Chief Executive Centrelink (Social security) - [2025] ARTA 317

Yarde and Secretary, Department of Employment and Workplace Relations Chief Executive Centrelink (Social security) [2025] ARTA 317 (10 January 2025)

Applicant/s: Mrs Yarde

Respondent: Secretary, Department of Employment and Workplace Relations
Chief Executive Centrelink

Tribunal Number: 2024/A191019
Tribunal: Member K Hamilton
Place:Brisbane
Date:10 January 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
· Mrs Yarde did not commit a mutual obligation failure on 27 June 2024; and
· Mrs Yarde’s jobseeker payment should not have been cancelled with effect from 26 July 2024.

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – JobSeeker payment – a mutual obligation failure – jobseeker payment should not have been cancelled – decision under review set aside

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This application concerns a decision made by Services Australia – Centrelink (Centrelink) to suspend and then cancel Mrs Yarde’s jobseeker payment (JSP).
According to Centrelink’s records, on 21 March 2024 and 27 June 2024 Mrs Yarde signed Job Plans with APM Employment Services (APM). An unsigned and undated Job Plan provided to the Tribunal in Centrelink’s documents sets out the following mutual obligation requirements for Mrs Yarde to receive income support:
I agree to search for work by contacting 5 employers per month, including any to which my provider refers me. I agree to report and provide evidence of these job search contacts to my provider as directed by the 27th of each month. I am aware that I need to look for any suitable work, not just work that I would like to do.
I agree to attend weekly Disability Employment Services appointments with APM Employment Services.
I agree to participate in the ESL course for 30 hours per fortnight with Tafe. I will commence by 06/02/2023 and complete by 06/05/2024.
I agree to undertake a health maintenance program to manage my medical condition from 21/03/2024 to 21/07/2024.
On 2 July 2024, Centrelink wrote to Mrs Yarde and advised that her payment “has been stopped from 25 June 2024 because you did not correctly complete and return your job search on 27 June 2024”. The letter also advised that “if you do not call your provider and meet the requirement they have given you, your payment may be cancelled.”
On 26 July 2024, Centrelink wrote to Mrs Yarde advising that her payment had been cancelled. That letter stated:
You were asked to attend a new appointment or meet your mutual obligation requirements to start getting your payment again.
As you did not do this and it has been more than 4 weeks since you were asked to. Your JobSeeker Payment has been cancelled from 26 July 2024. This is because you are not meeting the requirements of your payment.
Mrs Yarde’s JSP was cancelled with effect from 26 July 2024.
On 19 August 2024, Mrs Yarde sought a review of Centrelink’s decision to suspend and then cancel her JSP. On 30 August 2024, a Centrelink authorised review officer (ARO) affirmed the decision.
On 18 September 2024, Mrs Yarde applied to the Administrative Appeals Tribunal (the AAT) seeking independent review of Centrelink’s decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was conducted on 3 January 2025. Mrs Yarde participated in the hearing by telephone accompanied by her daughter, Ms Yarde. Mrs Yarde and Ms Yarde both gave evidence to the Tribunal on affirmation. The Tribunal was assisted by an Arabic interpreter.
The Tribunal had regard to documents provided by Centrelink as being relevant to the review, numbered as pages 1 to 96.

ISSUES

The statutory provisions relevant to this review are contained in the:
·     Social Security (Administration) Act 1999 (the Act);
·     Social Security (Administration) (Job Search Efforts) Determination 2018 (the Job Search Efforts Determination); and
·     Social Security (Administration) (Non-Compliance) Determination 2018 (No. 1) (the Non-Compliance Determination).
The issues that arise in this matter are whether Mrs Yarde committed a mutual obligation failure and whether her JSP should have been suspended and then cancelled.

CONSIDERATION

The Act sets out measures to ensure compliance with obligations placed on recipients of participation payments. A “participation payment” relevantly includes JSP: clause 1(1), Schedule 1 to the Act. A person in receipt of a participation payment can be required to undertake certain activities in order to continue receiving their payment. These activities are referred to as “mutual obligations”.
Division 3AA of the Act applies in relation to a person if the person is not a “declared program participant”. There is no evidence that Mrs Yarde is a “declared program participant” under the Act, therefore Division 3AA of the Act applies in this case.
Section 42AC of the Act sets out what amounts to a “mutual obligation failure”. Relevantly, paragraph 42AC(1)(e) of the Act provides that a person commits a mutual obligation failure if an employment pathway plan is in place and the person fails to undertake adequate job search efforts in relation to a period worked out under the plan.
Mrs Yarde’s Job Plans signed on 25 March 2024 and 27 June 2024 are employment pathway plans.
Section 42AF of the Act sets out the consequences of a mutual obligation failure. The usual rule (subsection 42AF(1) of the Act) is that if a person commits a mutual obligation failure, the Secretary may determine that their payment is not payable for a period.
However, where a person has persistently committed mutual obligation failures, and does not have a reasonable excuse for such failures, then subsection 42AF(2) provides that a person’s payment may be reduced or cancelled. Section 42AI of the Act requires the Secretary to prescribe by legislative instrument matters that must, or must not, be taken into account in determining whether a person has a reasonable excuse for committing a mutual obligation failure. The relevant instrument is the Non-Compliance Determination.
Where a determination has been made to not pay JSP for a period (i.e. to impose a payment suspension period under section 42AF(1)(a)), section 42AM of the Act provides that the Secretary must notify the person of a reconnection requirement and the effect of not complying with the reconnection requirement. The Secretary must determine that the person’s participation payment is cancelled if the person fails to comply with the reconnection requirement within 4 weeks after it is notified, and where the Secretary has not determined an earlier day for the purposes of ending the person’s payment suspension period.
Sections 42AL and 42AP of the Act provide when a payment suspension period and a payment cancellation begin and end, respectively.
There is no evidence before me in Centrelink’s documents that supports a finding that Mrs Yarde has persistently committed mutual obligation failures. Although there appears to be 2 previous occasions on which Mrs Yarde’s payment was stopped due to her not correctly completing and returning her job search requirements (see letters dated 3 April 2024 and 30 May 2024), the ARO makes no reference to any previous participation failures and does not suggest that Mrs Yarde had persistently committed mutual obligation failures.
The ARO decision states that Mrs Yarde’s payment was cancelled “because you did not reconnect with your provider within 4 weeks of being required to do so”. In this case, it therefore appears that Centrelink has relied on paragraph 42AM(3)(b) of the Act to cancel Mrs Yarde’s JSP.

Did Mrs Yarde commit a mutual obligation failure on 27 June 2024?

Mrs Yarde’s Job Plan required her to complete 5 job searches per month and provide evidence of those searches to her provider APM by the 27th of each month. The Job Plan specifies that Mrs Yarde is to look for any suitable work, not just work that she would like to do.
Mrs Yarde agreed that she did sign this Job Plan (although she could not recall the specific date/s on which her plan was signed) and that she understood the requirement to look for jobs. However, Mrs Yarde said that she had complied with the requirements of her Job Plan. She said that APM had not provided her with any documentation to complete with evidence of her job searches. APM told her that she could go into local [shops] and business to find work, which she did. Mrs Yarde could not recall the names of the businesses she approached, but said that she went into all the shops and was told that she needed computer skills so they could not give her work.
Ms Yarde confirmed that Mrs Yarde had unsuccessfully enquired about jobs at all the shops along [a road], including the IGA, and also around the markets in Adelaide. Ms Yarde could not recall the dates on which these job searches were undertaken but said it was definitely between April and June 2024.
Mrs Yarde said she then asked APM if she was able to do her job search online and was told she could. She had her daughter assist her to do this online.
The ARO notes record that Ms Yarde told the ARO that Mrs Yarde’s job searches were submitted to APM on either 27 or 28 June 2024. The ARO notes also indicate that Ms Yarde advised that as Mrs Yarde’s payments were not restarted, they emailed through further job searches to APM on 25 July 2024. The ARO states APM advised that there are “no records between 27/06/24-25/07/24 showing cus contacted them.”
However, what is actually recorded in the ARO’s notes is that APM was contacted on 30 August 2024 and advised that they “cannot see any job search submissions by 27/06/24 or 25/07/24 as cus has been existed [sic]” and “there are no records/emails able to be seen about jobsearch efforts from 27/06/24-25/07/24” (emphasis added). That advice does not confirm that there were no job search efforts or correspondence received from Mrs Yarde; rather it appears that APM simply were not able to access or view any of Mrs Yarde’s records on their system as Mrs Yarde had been exited from APM and they were no longer her provider.
Ms Yarde provided to Centrelink copies of emails between herself (on behalf of Mrs Yarde) and APM on 25 July 2024, and these are reproduced in Centrelink’s documents (at pages 36–38). Although Mrs Yarde provided evidence on 25 July 2024 that she had applied for 5 jobs, APM rejected Mrs Yarde’s job search efforts on the basis that the roles applied for were not considered to be suitable work.
Three of the roles Mrs Yarde applied for were interstate — in [(Brisbane)]; [(WA)] and Sydney. All of the 5 jobs applied for were for roles involving long periods of standing and physical activity (such as [details deleted]). In response to a question from the Tribunal as to whether she thought that she could perform these types of roles having regard to her medical conditions (knee pain and back pain), Mrs Yarde said that she could not.
With regard to the location of these jobs, Mrs Yarde said that she had applied for a job in Brisbane as her daughter was looking to buy a house in Brisbane and she planned to move to Brisbane with her daughter. However, her daughter’s plans fell through. Mrs Yarde acknowledged with respect to the jobs in [WA] and Sydney that these were not suitable jobs. She said this was likely a mistake in selecting job locations by one of her children who was assisting her with online job searching.
When Ms Yarde was advised by APM that Mrs Yarde’s job search efforts were not sufficient, she requested assistance from APM to identify suitable jobs Mrs Yarde should apply for. APM responded simply “We encourage our clients to walk into shops and see if they are hiring”. When Ms Yarde replied to say Mrs Yarde had already done this, APM did not ask for details of any of the businesses that Mrs Yarde had approached seeking employment nor did they offer any further assistance.
Mrs Yarde had a reconnection appointment scheduled with APM on 25 July 2024. However, late on the afternoon of 24 July 2024, APM texted Mrs Yarde to advise that her appointment was to be rescheduled, and a new appointment time would be mailed to her. The ARO records that APM records indicated that the appointment scheduled for 25 July 2024 was marked “no longer required”, noting this was “likely because [the] consultant left and all appnts were cancelled until a new one could be appointed.”
Ms Yarde told the ARO that APM did not reschedule any appointment for Mrs Yarde. This is consistent with Mrs Yarde’s appointment history screen which indicates that Mrs Yarde’s last appointment with APM occurred on 8 April 2024. Although several further appointments were scheduled after 8 April 2024 (on 2 May 2024, 6 May 2024, 14 May 2024, 2 July 2024 and 25 July 2024), all these appointments are marked as “no longer required” on the appointment history screen. This notation does not indicate that Mrs Yarde failed to attend any of the scheduled appointments.
I accept the evidence of Mrs Yarde and Ms Yarde and am satisfied that it was likely that Mrs Yarde had complied with her job search requirements by 27 June 2024. It is evident from Ms Yarde’s subsequent emails with APM on 25 July 2024 that Mrs Yarde was confused as to what more she was required to do to comply with her job search requirements. APM’s responses, such as they were, were unhelpful. Had APM, for example, responded meaningfully to Ms Yarde’s assertion that Mrs Yarde had already done “walk-ins” to multiple businesses on [a road], it may have been possible for Mrs Yarde to provide to APM further details and evidence of the businesses she had approached, and when. With the passage of time, Mrs Yarde understandably cannot now recall these exact details.
Mrs Yarde’s scheduled appointment on 25 July 2024 would have provided an opportunity for APM to explain clearly to Mrs Yarde what more was required in order for her to comply with her job search requirements. This appointment was cancelled by APM and does not appear to have ever been rescheduled. Given Mrs Yarde’s evident confusion, and her limited English language proficiency, more should have been done by APM to assist her.
I am not satisfied on the basis of the evidence before me that Mrs Yarde committed a mutual obligation failure on 27 June 2024. I therefore find that Mrs Yarde’s JSP ought not to have been suspended from 25 June 2024 pursuant to subsection 42AF(1).

Did Mrs Yarde fail to meet her reconnection requirement?

Even if I were satisfied that Mrs Yarde had committed a mutual obligation failure on 27 June 2024, and it was appropriate for Centrelink to exercise the discretion to stop her payments, I would set aside Centrelink’s decision to cancel Mrs Yarde’s JSP with effect from 26 July 2024 for 2 reasons.
Firstly, I am not satisfied that Mrs Yarde failed to meet her reconnection requirement. Centrelink’s letter of 2 July 2024 stated “If you do not call your provider and meet the requirement they have given you, your payment may be cancelled.”
The ARO’s finding that Mrs Yarde had failed to reconnect with her provider within 4 weeks is incorrect. Centrelink’s letter of 2 July 2024 simply required Mrs Yarde to contact APM. It did not require her to attend an appointment. Ms Yarde did in fact contact APM on behalf of Mrs Yarde by 25 July 2024, which is within 4 weeks of the notification on 2 July 2024.
Further, even if Mrs Yarde had been required to attend a reconnection appointment, APM cancelled Mrs Yarde’s scheduled appointment for 25 July 2024 and failed to reschedule a reconnection appointment for her, apparently due to staffing issues. This is not Mrs Yarde’s fault and she ought not be penalised for APM’s failure. Ms Yarde, on behalf of Mrs Yarde, was in contact with APM on 25 July 2024 seeking assistance so that Mrs Yarde could meet any further requirements and no adequate assistance was provided.
Secondly, unless the Secretary has determined an earlier date for the payment suspension period to end (which does not appear to have occurred in this case), subsection 42AM(3) authorises cancellation of a person’s payment only if the person fails to comply with the reconnection requirement within 4 weeks after that requirement is notified under subsection 42AM(2).
Mrs Yarde was notified of the requirement for her to reconnect with her provider by letter dated 2 July 2024. The cancellation date of 26 July 2024 is a period of 4 weeks after Mrs Yarde’s alleged mutual obligation failure on 27 June 2024. However, as at 26 July 2024, a period of 4 weeks had not elapsed since Mrs Yarde was notified of her reconnection requirement.
It was therefore not open to Centrelink to cancel Mrs Yarde’s JSP on 26 July 2024 under section 42AM of the Act as she did not fail to meet her reconnection requirement within 4 weeks of notification. Centrelink’s decision to cancel Mrs Yarde’s JSP with effect from 26 July 2024 will be set aside. This means that Mrs Yarde’s JSP should be restored and she is to be paid arrears from 25 June 2024.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

Mrs Yarde did not commit a mutual obligation failure on 27 June 2024; and
Mrs Yarde’s jobseeker payment should not have been cancelled with effect from 26 July 2024.

Date(s) of hearing:	Friday, 3 January 2025
Representative for the Applicant:	Ms Yarde