Editors --- "Newstart allowance participation failure: whether reasonable excuse" [2009] SocSecRpr 30; (2009) 11(3) Social Security Reporter, Article 8

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Newstart allowance participation failure: whether reasonable excuse

VATARESCU and SECRETARY TO THE DEEWR

(2009/477)

Decided: 29th June 2009 by J. Kelly

Background

The first decision appealed by Vatarescu concerned three participation failures (in December 2006, January and November 2007) as a result of which an eight week non-payment period was imposed. The second decision appealed involved two further participation failures (in June 2008). In respect of both groups of participation failures the core issue for the Tribunal was whether Vatarescu had a reasonable excuse for those failures.

Mr Vatarescu held a PhD in optical physics, and contended that Job Network Members (JNMs) could not meet his employment needs because of his particular qualifications, skills and experience. He argued that he should not be required to look for or accept ‘unsuitable work’ and that Department guidelines–in particular, the Guide to the Social Security Law -3.2.7.10 NSW/ YA Activity Testing – Overview –required that services be provided to him that were ‘tailored to meet [his] needs and available job opportunities’. He questioned JNMs’ competence and performance, and argued that he ought not be required to apply for unskilled jobs which fell outside his area of qualification and expertise, and that the job network scheme was futile.

In all in this matter, there were five alleged participation failures, discussed below, which in each case involved a failure to attend or non-participation in a scheduled appointment or interview.

The law

The qualification requirements for newstart allowance are contained in the Social Security Act 1991 (the Act). Section 624 defines ‘participation failure’ and provides –

624.

(1) A person commits a newstart participation failure if the person:

(a) fails to comply with a requirement:

(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii) that was reasonable; and

(iii) the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or...

...

(d) fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or

(e) fails to attend a job interview; or

...

Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

Whether an excuse for a participation failure can be said to be ‘reasonable’ must be determined with reference to the factors set out in The Social Security (Reasonable Excuse) (DEWR) Determination 2006. Under s.629 of the Act newstart allowance is not payable for 8 weeks if a person ‘...commits a newstart participation failure (the repeated failure ), having committed newstart participation failures (the earlier failures ) on 2 or more other occasions during the period of 12 months preceding that failure...’.

Further, s.63(2) of the Social Security (Administration) Act 1999 (the Administration Act) sets out notification requirements, and empowers Centrelink to notify newstart recipients of the obligation to attend for interviews and the like.

Discussion

The Tribunal considered each of the several alleged participation failures in turn.

The first, in December 2006, involved a failure to attend a JNM interview, in respect of which the Tribunal had previously determined that Vatarescu had no reasonable excuse. As he had not appealed this particular decision, the Tribunal accepted this participation failure as the first on which Centrelink

relied.

In January 2007 Vatarescu was advised of a JNM interview later the same month, which he acknowledged he did not attend. The Tribunal noted his email response to contact from the JNM regarding his nonattendance, and concluded that his reason for that non-attendance was (in essence) his longstanding dissatisfaction with the job network system. The Tribunal found that he had been given reasonable notice of the appointment concerned, and that his reason for non-attendance was not reasonable.

In November 2997 Vatarescu entered an Activity Agreement with a new JNM, and was advised of an appointment later in that month. He did not dispute that he had reasonable notice of this appointment, and in fact attended as required, but was intimidating and yelled during contact with the JNM, and did not engage in the interview in any meaningful way. He later stated that he did not cooperate in the interview nor comply with the Activity Agreement because the ‘...job network member is incompetent...’ The Tribunal concluded, again, that his dissatisfaction with the job network scheme did not amount to a reasonable excuse for the participation failure. As this was the third such failure within a twelve month period, he became subject to an eight week non-payment period (s.629 of the Act).

On 10 June 2008 Vatarescu entered another Activity Agreement, which included the obligation to attend job seeking activities, the first of which was scheduled for the next day (11 June 2008). He did not attend, but the Tribunal concluded that the notice given to him (of only 1 day) was not reasonable, and that therefore notwithstanding his pattern of previous non-attendance at scheduled interviews, he did not commit a participation failure on 11 June 2008.

Vatarescu was advised of a further interview later in June 2008, but did not attend, again citing his dissatisfaction with the job network system as the basis for his non-attendance. The Tribunal did not accept that this was a reasonable excuse, and therefore he had committed a participation failure on 24 June 2008.

Formal decision

The Tribunal affirmed the decisions under review, save that it found that Vatarescu did not commit a participation failure on

11 June 2008.

[P.A.S.]