Editors --- "Newstart allowance participation failures: was the applicant issued with proper compliance warnings about failure to attend?" [2009] SocSecRpr 29; (2009) 11(3) Social Security Reporter, Article 7

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Newstart allowance participation failures: was the applicant issued with proper compliance warnings about failure to attend?

WIN and SECRETARY TO THE DEEWR

(2009/488)

Decided: 1st July 2009 by D. G. Jarvis

Background

Win had been paid newstart allowance since approximately 2002. He was referred to an employment service provider, Workskil Inc in June 2006. Appointments were arranged for him with Workskil on six dates, 29 August 2007, 17 December 2007, 14 March 2008, 6 November 2008, 4 December 2008 and 23 December 2008.

Win failed to attend the first two appointments, failed to complete the activities required to be undertaken at the third appointment and also failed to keep the last three appointments. Workskil reported these matters to Centrelink, who decided that Win had committed, without reasonable excuse, newstart participation failures on each of the dates and as a result, imposed an 8 week nonpayment period in respect of the three participation failures that occurred on the first three dates and a further 8 week nonpayment period in respect of the further participation failures that occurred on the last three dates.

The law

Subsection 624(1)(a) of the Social Security Act 1991 (the Act) provides that a person commits a newstart participation failure if that person fails to comply with a requirement that was notified to the person under s.64(2) of the Social Security (Administration) Act 1999 (the Administration Act) that was reasonable, and the notification included a statement that a failure to comply with the requirement could constitute a newstart participation failure.

Subsection 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.

Subsection 64(2) of the Administration Act provides that a person receiving newstart allowance may be notified by the Secretary that they are required to attend a particular place for a particular purpose and also provides for what must be included in the notification.

By virtue of s.629 of the Act, newstart allowance is not payable to a person where there are repeated participation failures.

Considerations

Win acknowledged that he did not attend the appointments with Workskil on 29 August 2007, 17 December 2007, 6 November 2008,4 December 2008 and 23 December 2008. He only attended the appointment on 14 March 2008.

The Tribunal noted that in relation to the appointment on 29 August 2007, Workskil issued a written notice to Win advising him of the appointment and of his obligation to attend and the consequences of not doing so. The Tribunal also found that he was given verbal notification of the appointment on 17 December 2007 in terms which complied with the Act. Win accepted that on the remaining date, 14 March 2008, he attended at Workskil, but left before completing the activities he was required to undertake at that appointment.

The Tribunal noted that it was necessary for Win to demonstrate that he had a reasonable excuse for noncompliance. The Tribunal noted that in Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988 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.

Participation failure of 29 August 2007– Win gave evidence that he did not attend the appointment on that date because he had previously telephoned Workskil and cancelled the appointment as he had transferred to the Salvation Army. Win admitted however that he had no papers from the Salvation Army and while he had attended the Salvation Army there was no evidence that they had become his employment service provider. Win produced no evidence that might support his 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.

Participation failure of 17 December 2007 – Win maintained that he had not received written notification of that appointment with Workskil and further denied that he had been informed verbally of that appointment. The Secretary acknowledged that no written notification was provided, however, a Centrelink officer from the Participation Solutions Team gave evidence that on 17 September 2007 he conducted a reconnection interview with Win by telephone regarding the prior participation failure on 29 August 2007. He had no independent recollection of the interview but referred to notes made at the time and said that he advised Win of the appointment on 17 September 2007 and also advised him that not attending the reconnection appointment might result in a participation failure and a loss of payment.

The Tribunal accepted the Centrelink officer’s evidence and although he had no independent recollection of the telephone conversation, he gave evidence from contemporaneous notes and the Tribunal considered he was a careful and patently honest witness.

The Tribunal observed that Win clearly resented and mistrusted 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’. 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 prepare circulars on Buddhism every Monday. The Tribunal noted that it may well be Win’s hostile attitude to Workskil or the time elapsed since this discussion (and the fact that it was one of many telephone conversations that he had with Centrelink or Workskil) that had affected his recollection of the conversation with the Centrelink officer and that those matters explain his denial that he was given notification of the appointment by telephone. The Tribunal did not accept Win’s denial and preferred the evidence of the Centrelink officer that he told Win of the date and time of the appointment on 17 September 2007 with Workskil. The Tribunal also accepted that he told Win that not attending the appointment might result in a participation failure and a loss of payment.

Participation failure of 14 March 2008 – Win gave evidence that after the participation failure on 17 September 2007 he sought to transfer to another employment service provider, namely Holmesglen. However, Holmesglen did not complete or sign the transfer form, and Win agreed that he received no paperwork or confirmation from Holmesglen that they had accepted the transfer. The manager of Workskil gave evidence from Workskil’s records that enquiries were subsequently made of Holmesglen and they were advised on 17 October 2007 that they would not accept the transfer and as a result Win continued to be a client of Workskil.

The Tribunal noted the documentary evidence that in fact Win continued to receive communications from Workskil and he subsequently entered into an Activity Agreement with them on 8 January 2008. This made it clear that it was Workskil who was providing employment services to Win. The agreement detailed the activities that Win was required to undertake in order to continue to receive newstart allowance. 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. The Tribunal was satisfied that there was no basis after the date when this agreement was entered into, on which Win could reasonably have believed that he had been transferred to Holmesglen.

There appeared to be no dispute as to the relevant events on 14 March 2008. Win attended Workskil but was upset because Centrelink had suspended his newstart allowance. He admitted to shouting and banging the counter on three occasions. The manager who was a witness gave evidence that she heard shouting from the reception area and saw Win and asked him to leave because of his behaviour. Win then left without completing the activities he was required to undertake under his Activity Agreement. His behaviour amounted to an actual or constructive refusal to complete the relevant activities.

The Tribunal took into account Win’s literacy and language skills and considered if his lack of such skills was significant. The Tribunal was satisfied under s.4(3) of the Determination that the excuse relating to literacy and language skills did not apply. The Tribunal concluded that it was 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 Win and that he did not comply with the terms of his activity agreement on 14 March 2008. The Tribunal was also satisfied that he did not have 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 and that it was appropriate to impose the 8 week non-payment period on account of those participation failures.

The Tribunal was satisfied that Mr Win committed participation failures on 29 August 2007, 17 December 2007, and 14 March 2008.

Participation failures of 6 November 2008, 4 December 2008 and 23 December 2008 – the Tribunal considered that Win was aware of the appointments of those dates but there was no evidence that he was given a notification of those appointments in a form that complied with section 624(1)(iii) of the Act, which requires the notification to include a warning that a failure to attend the appointments could constitute a newstart participation failure.

After the hearing, the Department was given an opportunity to provide further evidence and advised that Centrelink’s usual business practice is for a ‘compliance warning’ to be given orally when a customer attends Centrelink to lodge their application for payment form, but the warning was not documented on Win’s record and no further information could be presented. The Department agreed that Win’s application should be determined on the evidence already provided.

The Tribunal concluded that there was no evidence of any written or verbal notification given to Win of the appointment on 6 November 2008. There were computer records that referred to appointments on 4 December 2008 and 23 December 2008 but there was no evidence that there had been a compliance warning. The Tribunal was therefore not satisfied that Win had committed participation failures on 6 November 2008, 4 December 2008 and 23 December 2008 because there was no evidence that the notification of those appointments included a compliance warning as required by the Act. The Tribunal determined that the decision under review in relation to these three participation failures should therefore be set aside.

Formal decision

The Tribunal affirmed the decision that Win committed participation failures on

29 August 2007, 17 December 2007 and

14 March 2008.

The Tribunal set aside the decision and remitted the matter for reconsideration in accordance with the direction that Win had not committed participation failures on 6 November 2008, 4 December 2008 and 23 December 2008.

[S.P.]