Barker; Secretary, Department of Community and Family Services [2000] AATA 58 (3 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 58

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/972

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF COMMUNITY AND FAMILY SERVICES

Applicant

And IAN BARKER

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 3 February 2000

Place Sydney

Decision The decision under review is set aside and the Tribunal substitutes its decision in lieu, namely: THAT the rate at which Newstart Allowance was to be paid to the Respondent is reduced for a period of 26 weeks being the period of 25 November 1998 to 25 May 1999 inclusive.

(Sgd) M D ALLEN

..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY - Reduction of Newstart Allowance for failure to comply with Activity Test. Presumption of regularity. No special circumstances existing where failure deliberate choice by Respondent.

Social Security Act 1991 - s601 and s624

Secretary, Department of Social Security v Ellis 24 AAR 535

REASONS FOR DECISION

3 February 2000 Senior Member M D Allen

1. By request of both parties this matter was to be dealt with "on the papers". A written submission was received from the Applicant Department but no submissions were received from the Respondent. I have therefore assumed that the Respondent's argument is still that argument he presented before the Social Security Appeals Tribunal on 19 May 1999.

2. On 30 June 1999 the Applicant lodged with the Tribunal an application to review a decision of a Social Security Appeals Tribunal which, on 19 May 1999 (incorrectly stated in the Application for Review as 19 May 1998), set aside a determination of an Authorised Review Officer and substituted its decision that the Respondent did not fail to satisfy an Activity Test under subsection 601(1B) of the Social Security Act 1991 (as amended).

3. Section 601 of the Social Security Act 1991 states inter alia:

"601(1) Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a) actively seeking; and

(b) willing to undertake;

paid work, other than paid work that is unsuitable to be undertaken by the person.

Note 1: For situations in which a person is not required to satisfy the activity test see:

(a) section 602 (certain persons over 50);

(b) section 603 (persons attending training camps in remote areas);

(c) section 603A (special circumstances);

Note 2: See subsections (2A) and (2B) on what paid work is unsuitable.

601(1A) The Secretary may notify a person (other than a person who is not required to satisfy the activity test) who is receiving a newstart allowance that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period specified in the notice.

601(1B) If a person refuses or fails to comply with a notice issued under subsection (1A), the person fails to satisfy the activity test in respect of the period specified in the notice.

601(1C) The person must give the Secretary a written statement from each employer whose job vacancy the person applied for that confirms that the person applied for that job vacancy.

601(1D) The statement from the employer must be in a form approved by the Secretary.

601(1E) Subsection (1C) does not apply to a person if the Secretary is satisfied that there are special circumstances in which it is not reasonable to expect the person to give the statement referred to in that subsection.

601(1F) If a person contravenes subsection (1C), the person fails to satisfy the activity test."

Whereas section 624 reads inter alia:

"624(1) Subject to subsection (2), if a person fails to satisfy the activity test (the ), a newstart allowance is not payable to the person.

624(1A) ...

624(2) A person is not subject to the activity test penalty period under subsection (1) at any time during which the person:

(a) is undertaking:

(i) formal vocational training in a labour market program approved by the Employment Secretary; or

(ia) an activity approved by the Employment Secretary under the CSP; or

(ii) a Employment Secretary; and

(b) has been exempted from the subsection by the Secretary."

4. The Social Security Appeals Tribunal made the following findings of fact which are not disputed in these proceedings, namely that the Respondent received a letter from Centrelink dated 9 October 1998 which, amongst other things, required him to have completed two employer contact certificates which were to be sent to him. A copy of that letter was apparently on the Centrelink file made available to the Social Security Appeals Tribunal. On 22 October 1998 Centrelink received a letter from the Respondent informing Centrelink that he did not comply with the above request. Again a copy of the Applicant's letter was on the Departmental file.

5. In presenting his case to the Social Security Appeals Tribunal, the Respondent conceded that he had received a letter from Centrelink requiring him to complete employer contact certificates. He did not do so because he found them humiliating and "based on mistrust".

6. The Social Security Appeals Tribunal upheld the Respondent's appeal on the basis that the employer contact certificates, and the notification to the Respondent that these certificates must be completed by a prospective employer and returned to Centrelink in order for payment of Newstart Allowance to continue, sent to the Respondent by Centrelink did not constitute proper notice so as to comply with subsection 601(1A) of the Social Security Act 1991.

7. Before this Tribunal the Applicant submitted that the documentation relied upon by the Social Security Appeals Tribunal to make its decision was not a copy of the documentation in fact sent to the Respondent. In fairness to the Social Security Appeals Tribunal, it must be pointed out that that Tribunal acted upon copy documents sent to it by Centrelink for the hearing of the Respondent's appeal.

8. The Social Security Appeals Tribunal, at paragraph 30 of its reasons for decision, stated:

"The Tribunal could find no reference to a period contained on the form of notice."

Compare subsection 601(1A) which reads:

"The Secretary may notify a person ... who is receiving a newstart allowance that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period specified in the notice." (Tribunal's emphasis)

9. Attachment B to the Applicant's submission, lodged with the Tribunal on 29 November 1999, is a copy of the form alleged by the Applicant to have been sent to the Respondent. In that edition of the form there is a paragraph which reads:

"You must apply for the jobs in the fortnight ending on the date for return shown below."

10. Having regard to the statement by Mr Craig Douglas, which is Attachment B2 to the Applicant's submissions and which reads (omitting formal parts):

"2. The process of generating an Employer Contact Certificate (SU454) requires variable data supplied by the Newstart System to be merged onto a 'fixed' form. Our team manages the system that performs this merging process. The system is called the Batch Laser Advice System and is known as BLA.

3. The form SU454.9809, is the version of the Employer Contact Certificate (SU454) that was released in Sept 1998. The form contains the 'fixed' or 'Static' data that is sent to every customer that receives an SU454. The form is stored on our printers and is only changed when a new version of the form is required. No new version has been requested since Sept 1998.

4. The variable data, which is the Customer Specific data, that is printed on an SU454 is comprised of:

Return to postal address

Client name and title

Client address line 1

Client address line 2

Client address line 3

Client address line 4

Return date

Reference number

Adv Counter (generated by the system).

This information is supplied by the Newstart System and, once processed, is stored within BLA's text database before being transferred to our archives."

And the assertion in the Applicant's submissions that:

"When the respondent was sent a Employer Contact Certificate Notice on 9 October 1998 his details (attachment C) were printed on this notice. Only the respondent's personal details were archived. The actual notice was not archived. This happens in every case when Employer Contact Certificate Notices are sent automatically (B2)."

I am persuaded to apply the presumption of regularity (omnia praesumuntur rite et solenniter esse acta) and hold that it was the notice at Attachment B of the Applicant's submissions that was in fact forwarded to the Respondent.

11. This being so, the grounds upon which the Social Security Appeals Tribunal set aside the decision under review cannot be maintained.

12. The notice being in regular form and conveying to the Respondent all information required by subsection 601(1A), the only other reason for excusing the Respondent from complying with the direction is that there exists special circumstances - see subsection 601(1E).

13. What constitutes "special circumstances" for the purposes of the Social Security Act 1991 has been discussed in numerous cases, both before this Tribunal and the Federal Court. For a comprehensive discussion of the term, see the judgment of Carr J in Secretary, Department of Social Security v Ellis 24 AAR 535 at 539. Suffice it to say I do not consider the excuse proffered by the Respondent, namely that he had found the forms to be humiliating and based on mistrust, to be a special circumstance. It was within his power to have the forms completed and forwarded to the Applicant but he deliberately chose not to do so. He must therefore take the consequences.

14. The decision of the Social Security Appeals Tribunal is therefore set aside and the Tribunal substitutes its decision, namely that the rate at which Newstart Allowance was to be paid to the Respondent is reduced for a period of 26 weeks being the period 25 November 1998 to 25 May 1999 inclusive.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D ALLEN

Signed: Ivanka Mamic .....................................................................................

Associate

Date/s of Hearing 27 January 2000

Date of Decision 3 February 2000

This matter was dealt with "on the papers"