Zoia and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2066

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2066

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0974

GENERAL ADINISTRATIVE DIVISION		)
Re		ANGELO ZOIA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Mr A Sweidan, Senior Member  

Date of Decision       2 November 2007

Date of Written Reasons             18 December 2007

Place  Perth

1.At the conclusion of the hearing of this application, the terms of the decision intended to be made and the reasons for that decision were stated orally.

2.The applicant has requested the Tribunal furnish him with a statement in writing of the Tribunal’s reasons for its decision and the Tribunal accordingly provides the written reasons attached.

........(Sgd. A Sweidan)..........

Senior Member

CATCHWORDS

SOCIAL SECURITY - newstart allowance - cancellation - failure to attend interview - no reasonable excuse - decision under review affirmed.

LEGISLATION

Social Security Act 1991 - s 593, s 624(1) and (2), s 626

Commonwealth of Australia Constitution Act - s 51

CASES

Reine and Secretary, Department of Family and Community Services [2005] AATA 425

REASONS FOR DECISION

18 December 2007 Mr A Sweidan, Senior Member    

INTRODUCTION

1.      The applicant seeks a review of a decision made by the Social Security Appeals Tribunal (SSAT) on 2 March 2007 which affirmed an earlier decision by an Authorised Review Officer to suspend the applicant’s newstart allowance and then cancel it.

ISSUES

2.      The issues before the Tribunal are:

(a)Whether the applicant failed to attend an interview with his job network provider for the purpose of entering a newstart activity agreement?

(b)If so, whether he had a reasonable excuse for not attending the appointment?

(c)If not, whether his newstart allowance should have been suspended and cancelled?

FACTS

3.      The relevant facts which are set out in the respondent’s Statements of Facts and Contentions and which are not in dispute are as follows:

(a)The applicant is a long term unemployed man who is 53 years old.  He has been in receipt of newstart allowance on and off since July 1992.

(b)On 26 October 2006 a Centrelink officer decided to suspend the applicant’s newstart allowance because he did not attend an interview with his job network provider.  On 1 November 2006 a Centrelink officer decided to cancel the applicant’s newstart allowance because he did not lodge his application for payment form.

(c)The applicant sought a review of these decisions and on 22 November 2006 and 23 November 2006 these decisions were reviewed by a Centrelink authorised review officer.  The first decision, that the applicant’s newstart allowance was suspended, was affirmed.  The second decision, that the applicant’s newstart allowance was cancelled, was varied to the extent that, while the Centrelink authorised review officer decided the applicant’s newstart allowance was to be cancelled, he decided that it should be cancelled because he failed to attend an appointment and enter into an Activity Agreement with his job network member, Maxnetwork.

APPLICANT’S EVIDENCE AND CONTENTIONS

4.      The applicant said that he did not attend the appointment because “they’re going to tell me what to do” and “nobody likes to be told what to do.” 

5.      In his written submissions he claimed that the relevant provisions of the Social Security legislation are unenforceable.  Further reference to this appears below.

LEGISLATION – SSAT FINDINGS

6.      The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Admin Act).

7. Newstart allowance is an ‘activity tested’ payment. The applicant is required to attend appointments if he wishes to receive newstart allowance as provided by s 63 of the Admin Act. Section 593 of the 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 subs 604(1) of the Act a person in receipt of newstart allowance may also be required to enter into an ‘activity agreement’.

8. The Social Security Appeals Tribunal (SSAT) was satisfied that the applicant committed a ‘newstart participation failure’ by failing to attend his appointment to negotiate an activity agreement as per s 624(1) of the Act.

9.      Section 624 (2) provides that the person does not commit a participation failure if there is a reasonable excuse.  The SSAT was satisfied the applicant did not have a reasonable excuse.  It found that the applicant was aware of the consequences of not attending the interview.   The evidence in the SSAT was that he cancelled the appointment and instead offered to attend an appointment in 2019 because that is when he will be eligible for age pension which is not activity tested.  He also said that he had saved money in anticipation of losing his newstart allowance.

10. Section 626 provides that the consequence of a newstart participation failure is non payment for the relevant period. The SSAT affirmed the decision that newstart allowance was not payable to the applicant as a consequence of the participation failure.

11. The applicant contends that he is not required to meet the activity test as the Constitution does not allow Centrelink to enforce the provisions contained in the above paragraphs. For the reason that the word ‘newstart’ does not appear in s 51 of the Constitution.

12. The Tribunal notes that s 51 (xxiiiA) of the Constitution mentions the provisions of unemployment allowances, and in the Tribunal’s opinion newstart allowance clearly falls under this category – see Reine and Secretary Department of Family and Community Services [2005] AATA 435 (10 May 2005).

13.     The Tribunal finds that the applicant had no reasonable excuse for not attending the appointment. 

14. The Tribunal accordingly finds that Centrelink’s decision to impose a non payment period in accordance with s 626 of the Act was correct as there was no reasonable excuse for the applicant not attending the appointment to negotiate an activity agreement.

DECISION

15.     The Tribunal affirms the SSAT decision dated 2 March 2007.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         ...................(Sgd. R Riberi).............................
  Associate

Date of Hearing  2 November 2007
Date of Decision  2 November 2007
Date of Written Reasons                  18 December 2007
Representative for the Applicant     Self Represented     
Counsel for the Respondent            Mr Q Bastian
Solicitor for the Respondent            Centrelink Legal Services Branch