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

[2008] AATA 796

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 796

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: 2007/6039   

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANGELO ZOIA

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Ms G Ettinger, Senior Member

Date  4 September 2008

Place  Perth

Decision   The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 23 November 2007

..............G Ettinger.............

Senior Member  

CATCHWORDS

Newstart Activity Agreement – Applicant refused to sign new Agreement- failed to enter into new Newstart Agreement -   he had no reasonable excuse pursuant to the legislation – Newstart Allowance correctly cancelled – decision under review affirmed.

LEGISLATION

Social Security Act 1991
Social Security (Administration) Act 1999

REASONS FOR DECISION

4 September 2008  Ms G Ettinger, Senior Member

INTRODUCTION

1.      Mr Angelo Zoia has made an application with this Tribunal for review of the decision of the Social Security Appeals Tribunal dated 23 November 2007, which found that the decision of the authorised review officer of Centrelink, dated 27 September 2007, to cancel his Newstart allowance from 24 July 2007 was correct. 

2.      Mr Zoia lodged what he called a Notice of Motion, which I took into evidence as Exhibit A1.  He asked for an adjournment at the beginning of the hearing on the basis that he did not want me to make a decision in this matter, but that he wanted the Minister for Centrelink to do so.  I explained to him that as he had lodged his application for review of the decision of the Social Security Appeals Tribunal to this Tribunal, I had a duty to make the decision.  I said I would do that once I had heard all the evidence and submissions.  I said that I would not grant the adjournment.

3.      Mr  Zoia also lodged a bundle of documents containing correspondence and forms, which I have taken into evidence as Exhibit A2. 

LEGISLATIVE CONTEXT

4.      The legislation relevant to this matter is the Social Security Act 1991 and the Social Security (Administration) Act 1999. 

ISSUES BEFORE THE TRIBUNAL

5.      Now, turning to the issues I have to decide 

·     whether Mr Zoia failed to enter into a new Newstart Activity Agreement as he was required to do;   

·     whether he had a reasonable excuse for not doing so;   

·     whether his Newstart allowance should have been cancelled from 24 July 2007. 

6. Now, first of all, to consider whether Mr Zoia failed to enter into a new Newstart Activity Agreement as he was required to do; Mr Zoia has been receiving Newstart allowance since 28 November 2006 and was required to satisfy the activity test. Newstart allowance is an “activity tested” payment. The Applicant is required to attend appointments if he wishes to receive Newstart allowance as provided by section 63 of the Social Security (Administration) Act. Section 593 of the Social Security Act provides that to be eligible for Newstart allowance, a person must among other things, satisfy the activity test throughout the relevant period.  Pursuant to section 604(1) of the Act, a person in receipt of Newstart allowance may also be required to enter into an Activity Agreement.

7. Section 605(2) and (3) of the Social Security Act provide that the Secretary can require a person who has entered into a Newstart Activity Agreement to enter a new Agreement by giving a person notice of the requirement and the place and time the Agreement is to be negotiated.

8.      Centrelink sent Mr Zoia notices on 27 April 2007 and 24 May 2007, requiring him to attend Max Employment for an appointment and to enter into a new Activity Agreement.  Mr Zoia acknowledged at the Tribunal that he had received those letters, and they are in the T documents at T25.  He also acknowledged that he had attended at Centrelink offices several times, but that he did not sign the Agreement as he knew he was required to do. 

9.      Copies of correspondence in the T-documents show that Centrelink reminded Mr Zoia in writing of his obligation to attend and sign the Activity Agreement, which he did not do.  On 13 July 2007, Centrelink wrote to Mr Zoia advising him that he may not have satisfied all the conditions for receiving Newstart allowance, that this might result in a Participation Failure, and that he needed to contact Centrelink to discuss the matter.  The Applicant was advised that his payment might stop if he did not make contact before his next pay day and that he was now required to bring in his form every fortnight. 

10.     Over the next two weeks, there was further correspondence and the Applicant was given an opportunity of explaining the Participation Failure before his form could be processed.  On 2 August 2007, Centrelink recorded Mr Zoia attended its office and told them that he had legal action at the AAT.  He told me that he asked whether the Agreement could be held over until after the AAT hearing, but that an officer called “Peter” did not pass the message on. 

11. As the Applicant failed to enter into a Newstart Activity Agreement as required, he committed a Newstart Participation Failure pursuant to section 624(c) of the Social Security Act.  The consequence of a Newstart Participation Failure is that pursuant to section 626, non-payment for the relevant period occurs.  Accordingly, on 7 August 2007, Centrelink notified the Applicant that his Newstart allowance had been cancelled from 12 June 2007 because he had not lodged his application for payment form. 

12.     Mr Zoia lodged his appeals to Centrelink and then to the Authorised Review Officer, who on 27 September 2007, affirmed the decision to cancel his Newstart allowance but varied the date of effect for the cancellation to 24 July 2007.  Mr Zoia found it curious that the Authorised Review Officer could do that, but I explained to him that the Authorised Review Officer takes a fresh and independent look, and if errors have occurred, it is her duty to rectify them. I am satisfied that in connection with the cancellation of Mr Zoia’s Newstart allowance commencing on 24 July 2007, Mr Zoia failed to enter into a Newstart Activity Agreement as he was required to do. 

13.     As I have found in the paragraphs above that Mr Zoia failed to enter into a Newstart Activity Agreement as he was required to do, I must now consider whether he had a reasonable excuse for not doing so. 

DID MR ZOIA HAVE A REASONABLE EXCUSE FOR NOT ENTERING INTO A NEWSTART AGREEMENT

14.     Section 624 subsection (2) provides that the person does not commit a Participation Failure if he or she has a reasonable excuse for not entering into a Newstart Activity Agreement.  There is a 2006 Determination entitled, Social Security – A Reasonable Excuse, (DEWR) Determination, which is of assistance in working out whether the Newstart recipient had a reasonable excuse for not entering into a Newstart Activity Agreement. 

15.     Mr Maishman took Mr Zoia through all the criteria which may be considered, and appeared on pages 23 and 24 of the T documents.  Whilst I am bound to apply the legislation, I am not bound by such a Determination but it is, of course, of assistance as a guide to what should be taken into account when considering whether Mr Zoia had a reasonable excuse for not entering into the Activity Agreement as requested. 

16.     Mr Zoia answered the questions in the order in which they appeared in the document, and as he was asked.  He agreed he did not meet any of the criteria, which include homelessness, alcohol dependence and cognitive impairments, which might prevent him from entering into an Agreement. I find that Mr Zoia has, by his own admissions made at the Tribunal, no reasonable excuse pursuant to section 626 of the Act for not entering into the Newstart Activity Agreement.  The only excuse he expressed to me was that he had an AAT matter on the way and wanted to delay signing until after that had been heard and determined.  I do not find that that constitutes a reasonable excuse. 

17. Mr Maishman, who appeared for the Secretary, contended that the Applicant had not shown that he had a reasonable excuse pursuant to section 624(2), 624(2A), and 624(2B) of the Social Security Act for committing the Newstart Participation Failure.  I agree with him. 

18.     As I have found in the paragraphs above that Mr Zoia did not have a reasonable excuse for not entering into a Newstart agreement, I must now consider whether his Newstart allowance should have been cancelled from 24 July 2007. 

SHOULD MR ZOIA’S NEWSTART ALLOWANCE HAVE BEEN CANCELLED FROM 24 JULY 2007

19. Mr Maishman submitted that a Newstart allowance is not payable pursuant to section 626(1) of the Social Security Act, and that pursuant to section 626(3) of the Act, the Participation Failure instalment period is the next instalment period to start after the day on which the Secretary first became aware that the person committed the Failure. Mr Zoia failed to enter into a Newstart Activity Agreement and so committed a Newstart Participation Failure. The Newstart allowance ceased to be payable to the applicant because of the failure.  I am satisfied the date the Secretary found that had occurred was correct.

20.     I am mindful that Mr Zoia queried how it was that his Newstart allowance was first said to have been cancelled from 12 June 2007 and that the Authorised Review Officer then varied the decision to find the correct date was 24 July 2007.  I was pleased to hear that the Authorised Review Officer had recognised that an error had been made, and it is, of course her duty when taking a fresh look at the decision of Centrelink to make the correct decision.  It was in fact, in Mr Zoia’s favour, and she has done that, in my view.  I am satisfied that the correct decision was that Mr Zoia’s Newstart allowance was cancelled from 24 July 2007.  I noted that it was reinstated in September 2007. 

CONCLUSION

21.     All that remains for me to do then is to consider whether to affirm, vary or set aside the decision of the Social Security Appeals Tribunal.  As I have found that Mr Zoia failed to enter into a Newstart Activity Agreement as he was required to do, had no reasonable excuse for not entering into a Newstart Activity Agreement, and that his Newstart allowance was correctly cancelled from 24 July 2007, I must affirm the decision of the Social Security Appeals Tribunal. 

DECISION

22.     The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 23 November 2007. 

23.      

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ..........E Jordan..................
  Associate

Date/s of Hearing  4 September 2008 
Date of  Ex Tempore Decision  4 September 2008
Applicant  Self represented
Respondent Representative     Paul Maishman   
  Centrelink Legal Services