Editors --- "Newstart allowance: serious failure; reasonable excuse; notification of inability to attend." [2012] SocSecRpr 31; (2012) 14(4) Social Security Reporter, Article 3

• KARTCHEV and SECRETARY TO THE DEEWR
• Background
• Issues
• Legislation
• Consideration
• Formal decision

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Newstart allowance: serious failure; reasonable excuse; notification of inability to attend.

KARTCHEV and SECRETARY TO THE DEEWR

(2012/686)

Decided: 5th October 2012 by C. Ermert.

Background

Kartchev had been in receipt of newstart allowance (NSA) from 2006. Centrelink conducted a Comprehensive Compliance Assessment and the Centrelink officer noted that Kartchev had missed all 11 appointments within the six month assessment period and that there were no issues impacting on Kartchev’s compliance. Centrelink advised Kartchev that he had failed to attend 3 particular appointments with MAX Employment (MAX) on 7 November, 22 November and 1 December 2011without reasonable excuse and that there would be an 8 week non-payment period for persistently failing to comply with his NSA obligations.

Kartchev claimed that his back condition prevented him from attending appointments at MAX and he was able to produce medical certificates dated 22 June 2011, 1 July 2011 and 28 October 2011. Based on the medical certificate, dated June 2011, the Centrelink officer gave Kartchev a verbal exemption from attending MAX appointments for 3 months. Kartchev obtained another medical certificate dated 28 October 2011.

Kartchev was advised by letter that he had to attend a MAX appointment on 7 November 2011. Kartchev said that he rang Centrelink a few days before that date to say he would be unable to attend because of his back and he said the Centrelink officer told him that he would need to provide medical evidence of his condition. Kartchev took the October medical certificate to Centrelink on 16 November 2011 and he was given a receipt number. He was not told that the medical certificate would not be accepted. Kartchev had been advised of another appointment with MAX on 22 November 2011. Kartchev stated that he assumed the medical certificate would provide him with another 3 month exemption and that he told Centrelink on 16 November 2011 that he would be not be attending on 22 November 2011.

Kartchev received another notification letter for an appointment with MAX on 1 December 2011 and he acknowledged that he had been advised that Centrelink would not accept the medical certificate. Kartchev believed that there was a misunderstanding about his medical certificate.

Centrelink argued that there was no record of an exemption, nor any record of Kartchev advising that he would be unable to attend appointments.

Issues

The AAT had to decide if Kartchev committed participation failures on 7 November, 22 November and 1 December 2011 without reasonable excuse; and whether he had committed a serious failure because of the persistent noncompliance; and whether he was liable to serve an eight-week non-payment period.

Legislation

Section 42E of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person commits a connection failure if the person fails to comply with a requirement notified to the person. Section 63 provides for the Secretary to notify the person of a requirement to attend a particular place and the methods of giving such notice. Under s.42E(4) the Secretary can decide it is not a participation failure if the claimant has a reasonable excuse. The Social Security (Reasonable Excuse – Participation Payment Obligation) (DEEWR) Determination 2009 (No 1) (the Reasonable Excuse Determination) provides the guidelines as does the Social Security (Administration) (Persistent Non-compliance) (DEEWR) Determination 2009 (No1) (the Persistent Non-compliance Determination).

When determining the reasonableness of an excuse, section 5(2) of the Reasonable Excuse Determination, subsection (c) includes:

An illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature.

Section 3 of the Determination provides that the Secretary must be satisfied that the condition had a significant effect on the person’s capacity to comply with the requirement.

There are also limitations set out in section 42UA when determining whether a person has a reasonable excuse for failing to attend an appointment. An excuse cannot be a reasonable excuse unless before the time of the appointment, the person notified the excuse to the person or body notified by the Secretary as the person or body to whom prior notice should be given if the person is unable attend the appointment; or the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give the notification.

Consideration

The AAT found that Kartchev had been properly notified of appointments by letters, that he had received the letters and that he did not attend the appointments in question. The AAT found that Centrelink accepted that Kartchev had a condition which periodically restricted or prevented his daily activities. Centrelink argued that there was no record that Kartchev notified he would be unable to attend; Kartchev stated more than once that he did notify of his inability to attend. The AAT accepted that Kartchev obtained the medical certificate because he was told he would need one and that Kartchev was not told that Centrelink would not accept the sickness certificate until 29 November 2011.

The AAT found that the medical opinion in the medical certificate dated 28 October was identical to the first, accepted, certificate. The doctor said Kartchev would be unable to work for more than 8 hours a week until 2 February 2012. The AAT determined that Kartchev had a reasonable excuse for not attending on 7 November and 22 November and also accepted that he advised Centrelink that he would not attend.

Kartchev stated that he did not advise that he would be unable to attend the appointment on 1 December 2011.

Formal decision

The SSAT decision was set aside. It was found that Kartchev did commit a participation failure on 1 December 2011 but not on 7 and 22 November 2011 with the result that Kartchev did not commit three participation failures over the dates in question. Kartchev did not commit a serious participation failure for persistent non-compliance and the provisions for an eight-week suspension of his participation payments were not satisfied.