Editors --- "Youth allowance: activity test" [2007] SocSecRpr 29; (2007) 9(3) Social Security Reporter, Article 3

• JADE and SECRETARY TO THE DEST
• Background
• The legislation
• Consideration
• Formal decision

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Youth allowance: activity test

JADE and SECRETARY TO THE DEST

(2007/1378)

Decided: 29th May 2007 by S. E. Frost

Background

Jade enrolled in a Certificate course in Tourism at TAFE and started to receive youth allowance as a full-time student. At the beginning of 2005 she reduced her study load to part-time, but failed to notify Centrelink. Centrelink decided to raise a debt equivalent to the entire amount of youth allowance Jade received while not a full-time student between 7 February 2005 and 31 August 2005.

Jade argued that she remained qualified for youth allowance throughout the relevant period.

The legislation

The Social Security Act1991 (the Act) sets out the main qualification criteria for youth allowance at s.540:

540(1) Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:

...

(i) throughout the period the person satisfies the activity test(see Subdivision B) ...

Section 541 sets out the definition of the ‘activity test’:

541(1) Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:

(a) the person satisfies the Secretary that, throughout the period, the person is undertaking full time study (see section 541B); or

(b) the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or

(c) throughout the period, the person complies with the terms of a Youth Allowance Activity Agreement applying to the person....

541(2) A person also satisfies the activity test in respect of a period if:

(a) the Secretary is of the opinion that, throughout the period, the person should undertake particular paid work, other than paid work that is unsuitable to be done by the person; ...

Consideration

The Tribunal considered whether Jade met the requirements to be paid youth allowance during the relevant period. The Tribunal decided that the only real issue in Jade’s case was whether she met the activity test, as required in s.540(a).

The activity test for youth allowance is outlined in s.541(1). The Tribunal decided that Jade certainly did not satisfy s.541(1)(a), as she was not undertaking full-time study. The Tribunal further decided that Jade could not be said to have satisfied ss.541(1)(c)or 541(2), as there was no Activity Agreement applying to her and the Secretary had not notified her that she had to satisfy any other requirements.

The core issue in this case was whether Jade could be said to have satisfied s.541(1)(b),that is, whether she was actively seeking, and willing, to undertake suitable paid work in Australia. Jade provided the Tribunal with various forms of documentary evidence of her job search activities during the relevant period.

The Secretary argued before the Tribunal that Jade’s evidence of job search activities must be assessed in comparison with the ‘normal requirements of a youth allowance job seeker’. The Secretary asserted that such job seekers are required to attend Job Network for the purpose of registration, and are compelled to do so under s.63 of the Social Security (Administration) Act 1999. Job seekers were also required to apply for advertised vacancies, enter into Activity Agreements and undertake other specified activities under other sections of the Act.

The Tribunal commented that the ‘normal requirements of a youth allowance job seeker’, as asserted by the Secretary, stemmed from several different legislative provisions from those applicable in this case. For example, s.63 of the Social Security (Administration)Act 1999 only obliges a person to do certain things ‘if the Secretary is of the opinion’ that the person should do those things and the person is notified of the requirement. However, the Secretary did not make this or any other similar requirements in Jade’s case. The requirement could only be imposed on those who receive the relevant notice, so it cannot be said that the requirements referred to by the Secretary are imposed on every youth allowance job seeker.

Similarly, the Tribunal decided that the same reasoning applied to Activity Agreements. Section 544A of the Act states that the Secretary ‘may require’ a person to enter into an Activity Agreement, and if the requirement is made, the person must enter into one and take reasonable steps to comply with it. Jade was simply not required to enter into an Activity Agreement, and this did not mean that she could not meet the requirements of s.541(1)(b) in other ways.

The Tribunal decided that the proper test was whether Jade could demonstrate that she had met the activity test through activities other than study.

The Tribunal considered Jade’s evidence of her job seeking activities in the relevant period. The Tribunal did not give much weight to a list of job applications that she had compiled for the period, as it repeated several entries. However, the Tribunal did give weight to Jade’s evidence of emailed job applications to various employers at different times during the relevant period. In addition to the emails, the Tribunal also gave weight to letters received by Jade to acknowledge her registration with recruitment agencies and to confirm that they had received her resume, and to that fact that she received some casual work through a recruitment agency.

The Tribunal stated:

To be ‘actively seeking’ paid work, a person needs to be trying, in a sustained way and with diligence and vigour, to secure a paid position with a potential employer.

(Reasons, para. 28)

The Tribunal decided that, on the evidence, Jade met this requirement. The Tribunal was further satisfied that Jade was willing to undertake paid work at the time, and that she would have accepted any suitable job offer that came her way during the period. The Tribunal therefore decided that, with the possible exception of the period of time she did manage to secure paid employment, Jade satisfied the qualification criteria for youth allowance in the relevant period. There was therefore no youth allowance debt.

Formal decision

The Tribunal set aside the decision of the SSAT. In its place the Tribunal decided that Jade did not owe a debt to the Commonwealth, subject to the determination of the issue of whether the applicant was precluded from payment for a short period due to casual paid employment. This issue was remitted to the Department for reconsideration.

[D.A.]