Wicks and Secretary, Department of Family and Community Services [2003] AATA 679 (18 July 2003)

Last Updated: 18 July 2003

DECISION AND REASONS FOR DECISION [2003] AATA 679

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/229

GENERAL ADMINISTRATIVE DIVISION	)
	Re	LYNETTE WICKS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr Murray Allen (Member)

Date 18 July 2003

Place Perth

Decision

The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 9 April 2002 and in substitution therefor decides that: 1. The applicant did not fail to comply with the terms of an agreement on 26 November 2001 and did not fail to satisfy the activity test in respect of her newstart allowance benefit. 2. A rate reduction should not have applied for the period 18 December 2001 to 17 June 2002. 3. The respondent should re-calculate the amount of benefit that should have been paid to the applicant in the period 18 December 2001 to 17 June 2002.

............(sgd M Allen).................

Member

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - newstart allowance - whether requirement under ss 601(2) to undertake a labour market program or under s604 to enter into a Newstart Activity Agreement - whether reasonable steps taken to comply with terms of agreement

Social Security Act 1991 ss 593, 601, 604

Re Dudzinski and Rossington [2000] FCA 1659

REASONS FOR DECISION

18 July 2003 Mr M Allen, Member

1. This is an application by Mrs Lynette Wicks for review of a decision made on 9 April 2002 by the Social Security Appeals Tribunal (the SSAT). On that day the SSAT affirmed the decision of a delegate of the Secretary of the Department of Family and Community Services ("the Secretary") made on 18 December 2001 to impose a newstart allowance (NSA) activity test breach rate reduction of 18% for the period 18 December 2001 to 17 June 2002.

2. The application was heard on 19 November 2002, 26 February 2003 and on 29 May 2003. Mrs Wicks represented herself and the Secretary was represented by Mr Ellis from Centrelink's Advocacy and Administrative Law Team. The Tribunal received into evidence the documents ("the T documents") lodged by the Secretary in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (T1 to T11). Oral evidence was given by Mrs Wicks. The Tribunal also received as evidence documents tendered by the applicant (which were identified as Exhibits A1 to A4) and by the Secretary (which were identified as Exhibits R1 to R4). Following the hearing on 29 May 2003 the Secretary sent to the Tribunal (and Mrs Wicks) copies of letters from Centrelink to Mrs Wicks dated 23 March 2001, 2 April 2001, 20 April 2001, 9 May 2001, 10 May 2001, 23 May 2001, 31 May 2001, 12 June 2001, 9 July 2001, 20 July 2001, 25 July 2001 and 26 July 2001 that had been extracted from Centrelink's computer system. For convenience these have been identified as R5 to R16 respectively. Mrs Wicks subsequently wrote to the Tribunal by letter dated 16 June 2003 about that correspondence and I have identified that letter as A5.

Background

3. The following background information was not in dispute and I find the following as facts.

4. Mrs Wicks was born in February 1952 and was 49 years old in the middle of the year 2001. At that time she was receiving NSA and in circumstances that will be referred to below she entered into an agreement with a service provider, Mission Australia. The agreement (T11, folio 47) was entitled "Preparing for Work Agreement" and stated that it was a "Newstart Allowance Activity Agreement under the Social Security Act 1991." For convenience I will refer to the agreement as an "NSAA".. It appears that the NSAA was signed on or about 23 July 2001 and was to run for the period from 19 June 2001 until 19 June 2002. On 28 November 2001 Mission Australia submitted a computer report to Centrelink asserting that Mrs Wicks had, on 26 November 2001, failed to take reasonable steps to comply with four specified terms of the NSAA.

5. On 28 November 2001 Centrelink wrote to Mrs Wicks (R1) informing her that information had been received which indicated that she may have failed the activity test by failing to comply with the terms of the NSAA and requesting that she contact Centrelink by 5 December 2001.

6. Mrs Wicks contacted Centrelink by telephone on 29 November 2001 in response to that letter and document T10 records that Mrs Wicks was to submit a written statement. No such written statement was received by Centrelink and on 18 December 2001 a delegate of the Secretary determined that an activity test breach had occurred on 26 November 2001 and an 18 % rate reduction would apply for six months from 18 December. A letter was sent on that date to Mrs Wicks (R3) informing her of that decision.

7. By letter dated 7 January 2002 Mrs Wicks sought an internal review of that decision and provided a written statement setting out her thoughts on the subject (T6). On 9 January 2002 the original decision maker reconsidered the decision with the benefit of further documentary evidence from Mission Australia (T11), confirmed the decision and referred the matter to an Authorised Review Officer (ARO). On 22 January 2002 the ARO concluded that there had been a failure by Mrs Wicks to comply with the terms of the NSAA, that the reasons for failing to comply were not outside her control and she had not been prevented from complying by something that was not reasonably foreseeable. The original decision was therefore affirmed.

8. On 9 April 2002 the SSAT affirmed the Centrelink decision, concluding that under the terms of the NSAA Mrs Wicks was required to actively search for all suitable paid work by various listed means, that she had not looked for all suitable full-time or part-time work during the period because she limited herself in the work that she felt was suitable for her, that this limitation was within her control and foreseeable by her, and that she did not take reasonable steps to comply with the terms of the NSAA in November and December 2001.

The legislation and issues for the Tribunal

9. Section 593 of the Social Security Act 1991 (the Act) sets out the qualification requirements for NSA in respect of a period. One of the requirements is that a person must satisfy the activity test for the relevant period: s593(1)(b)(i). The issue before the Tribunal in this case is not whether Mrs Wicks is generally qualified for NSA. Rather, the issue is whether she has failed to satisfy the activity test as required and whether that justifies the imposition of a rate reduction period.

10. Section 601 of the Act sets out a number of ways in which a person may satisfy the activity test. The principal provisions are ss601(1), 601(2) and 601(4). Relevant parts of s601 are as follows:

Activity test

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

601.(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:

(i) ...; or

(ia) ...; or

(ii) should:

(A) ...; or

(B) participate in a labour market program; or

(BA) ...; or

(C) ...;

approved by the Employment Secretary which is likely to:

(D) improve the person's prospects of obtaining suitable paid work; or

(E) assist the person in seeking suitable paid work; or

(iii) ...; and

(iv) ...; and

(b) the Secretary notifies the person that the person is required to act in accordance with the opinion; and

(c) the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement.

601.(3) If a person fails to take reasonable steps to comply, throughout a period, with a requirement of the Secretary under subsection (2), the person cannot be taken to satisfy the activity test in respect of that period in spite of any compliance of the person with subsection (1).

601.(4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement between the Secretary and the person.

601.(5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).

601.(6) For the purposes of this section, a person takes reasonable steps to comply with ... a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply and:

(a) the main reason for failing to comply involved a matter that was within the person's control; or

(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.

11. Complementing ss601(4) is s604, which empowers the Secretary to require a person to enter into an NSAA. One of the terms of an NSAA may be that the person undertake a labour market program of the type envisaged by ss601(2) - and so there may in practice be very little difference for the individual whether he/she is required to undertake a program under ss601(2) or s604, even though it is clear that the two requirements are separate requirements for NSA purposes and not interdependent: see Re Dudzinski and Rossington [2000] FCA 1659 at para 17 per Drummond J.

12. It is clear from ss601(3) and 601(5) that satisfying the activity test via ss 601(1) will not be sufficient if ss601(2) or ss601(4)/s604 are applicable to the person concerned.

Consideration

13. It is by no means clear how Mrs Wicks came to enter into the NSAA. Prior to the submissions of documents R5 - R16 there was no evidence before the Tribunal of any requirement to do so having been conveyed to Mrs Wicks under ss 601(2) or s 604. Document R6 is a letter dated 2 April 2001 to Mrs Wicks that asked her to attend an interview at Centrelink and states that "during the interview we will discuss your activity test obligations and you will be required to negotiate and sign a Preparing for Work Agreement".. There is no direct evidence of whether such an interview occurred - but it appears that it either did not or, if it did, no agreement was entered into - because the subsequent letters from Centrelink to Mrs Wicks either invited her to enrol with local `job network members' (R7 dated 20 April 2001 and R10 of 23 May 2001) or invited her to attend interviews with Centrelink (R8 of 9 May 2001, R9 of 10 May 2001, R11 of 31 May 2001, R13 of 9 July). R9 and R11 also stated that Mrs Wicks would be required to negotiate and sign a Preparing for Work Agreement at these interviews.

14. Mrs Wicks gave evidence that when she received the letters relating to the enrolment with job network members she had no preference as to which she would be referred to - and told Centrelink this. At some point she was referred to Mission Australia.

15. Although as a matter of fact Mrs Wicks did enter into the agreement set out in T11, there is no evidence before the Tribunal of any formal requirement being made to Mrs Wicks by the Secretary either under ss 601(2) or s 604 to either undertake a labour market program or to enter into an NSAA. As already noted, the agreement refers to it being an NSAA. It also provides that "once approved by a delegate of the Secretary, this Agreement is an Agreement between you and the Secretary under ... section 604(1C) of the Social Security Act".. Nevertheless, Mr Ellis informed me that such an agreement is also used when a requirement is made of a person under ss 601(2) of the Act.

16. In the absence of better evidence about exactly what Mrs Wicks was required to enter into I would have been inclined to conclude that no legally effective requirement had been made of her. However, Mrs Wicks did not dispute that she had been required to enter into an agreement, although she could not say what the legal basis of the requirement was, nor was there any material dispute about the terms thereof. On the view of the matter that I have taken I conclude that it does not matter whether Mrs Wicks was required to enter into an agreement under ss601(2) or s604.. The issue for the Tribunal to determine is whether Mrs Wicks took reasonable steps to comply with the terms of the NSAA that she did in fact enter into and, if she did not, whether the main reason for failing to comply involved a matter that was within her control, or the circumstances that prevented her from complying were reasonably foreseeable by her (ss 601(6)).

The terms of the NSAA and the alleged failure to comply

17. The only evidence about the terms of the NSAA in question that was provided by the Secretary to the Tribunal is that contained in documents T5 and T11. Document T11 contains only two pages in relation to the agreement, folio 47 being what appears to be the first page of the agreement with some of the general terms and understandings and folio 46 containing a schedule of activities that can be applicable to the person entering into such an agreement - five of which have been marked and ticked as applicable to Mrs Wicks,. There is nothing in the document to indicate when it was signed by either party, but one of the terms refers to an interview that was to take place on 24 September 2001. Document T5 at folios 26 and 27 sets out five terms that are said to be applicable to Mrs Wicks and which correspond to the five in T11.

18. On the other hand, Mrs Wicks produced a copy of what she described as her "last" agreement with Mission Australia (document A1). This consists of five pages including a schedule of agreed activities and on its face was signed by an Amanda Hurst of Mission Australia on 15 November 2001 but by Mrs Wicks on 15 January 2002. The schedule of agreed activities refers to an interview to be held on 18 March 2001, which I presume should have been 2002. However, the term for which the agreement is to run remains as 19 June 2001 until 19 June 2002 and the two schedules of agreed activities are identical except for insignificant differences in times and for the fact that the schedule in Mrs Wicks' version of the agreement contains an additional term which requires her to continue to work at a specified part-time job. There is no dispute that Mrs Wicks did continue to work in that job and that she did comply with that particular term of the agreement. For present purposes, then, the schedule of agreed activities that Mrs Wicks was required to undertake (bearing in mind the minor differences between the various versions) can be presented as follows - and I so find:

Code Activity

JO2 Weekly: Check the AJS touch screens for vacancies on a regular basis

JO3 Weekly: Self canvas employers for suitable jobs on a regular basis

JO6 Weekly: Check employment sections of newspapers, including local publications and apply for suitable jobs

AO4 24 September 2001 at 2pm (or 18 March 2001, or 2002, at 9am): On a regular basis, attend and fully participate in interview with provider to assess progress with intensive assistance and identify further assistance measures if needed.

JO7 Every Monday 2pm to 4pm (or 12 to 2pm): With assistance from provider prepare application letters and apply for suitable advertised positions which match my skills and experience.

19. I pause at this point to observe that one activity that was not ticked as being applicable to Mrs Wicks but which, on the face of it, may well have been of assistance to her, was one with the code J08 and which was described as "provide current resume to my provider so that provider may assist with review and update of resume, suggest amendments and hold a copy for job matching purposes and for forwarding to employers".

20. Document T5, which appears to have been created by Mission Australia on 11 December 2001 and sent to Centrelink, asserted that Mrs Wicks had failed to take reasonable steps to comply with activities J02, J03, J06, and J07. One can only conclude, therefore, that Mrs Wicks did comply with activity AO4, although I will make further comment about that later in these reasons.

21. Document T5 also provided further information from Mission Australia to Centrelink. In response to the question: "how has the jobseeker failed to take reasonable steps to comply?", the response was "she refuses to apply for jobs that match her skill and experience. She says she is working voluntaril...". It is apparent that the entry contained further information and I invited Mr Ellis to attempt to establish from the computer systems of Centrelink or the Department of Employment whether it was possible to now obtain that further information. I was eventually told that it was not possible. In response to the question: "was the jobseeker contacted to discuss this participation report?", the response was "Yes" and the details of the attempted contact and jobseeker comments were as follows: "she became angry when the touch typing program wasn't available I told her she is to spend her time here looking for work. She has retail skills and many other skills. I informed her I'd put a report in. She said she'd go to Centrelink and that she...." Once against it is apparent that further information was contained in the computer report but once against it was not possible to obtain it. In response to the question "reason for proceeding with Participation Report/Additional details" the entry was as follows: "she said that she shouldn't have to look for work at her age and that she wouldn't cope with full-time work. I suggested CSP and she angrily told me there's nothing wrong with her. She said that is not enough jobs to go around so she's better off volunte...".. Once against the balance of the comment was not available. The report concludes with the comment that no additional paperwork is required to support the report.

22. Mr Ellis informed me that the above information was all that the original decision maker had to consider when the original decision was made to impose a breach and rate reduction on 18 December 2001. However, by the time of the review by the original decision maker on 9 January 2001 the further information supplied by Mission Australia on that day (T11) was available.

23. Folios 42 and 43 of document T11 contain handwritten notes made by Amanda Hurst, the Mission Australia employee who was responsible for the management of Mrs Wicks. The notes relate to contact between Ms Hurst and Mrs Wicks on 19 June, 5 July, 23 July and 28 July. Folios 44 and 45 of T11 are a computer-generated audit report of Mission Australia concerning Mrs Wicks and refers to contacts with Mrs Wicks between 19 June and 21 December. The contacts that generated notes were those that occurred on 5 July, 23 July, 26 November, 29 November and 21 December. There is no evidence as to who created these entries. The notes in folios 44 and 45 for the contacts on 5 July and 23 July are broadly consistent with the handwritten notes about the contacts on those days on folio 43, but there are no notes about the contact on 19 June and folio 44 does not refer at all to any contact on 28 July. Significantly, in my opinion, neither folios 42 and 43 nor 44 and 45 contain any notes about the interview that was scheduled for 2pm on 24 September 2001 in the NSAA - although there is a cryptic reference on folio 44 for 25 September 2001 as follows: "attd sjs weekly Aug - 24/9".. No evidence was available to assist me decide what that note meant. If the scheduled interview did take place then no-one at Mission Australia made a note about it or what Mrs Wicks may have been told or said. Mrs Wicks could not recall the specific details of such a meeting.

24. Mrs Wicks gave evidence that she had been out of the workforce for many years. When her children were at school she had started to look for work but her previous work as a receptionist had been impossible because computers had taken over the workplace while she was not working and so she worked as a cleaner for some time. That led her into work in the aged care industry, which she had done for many years until her marriage broke down in stressful circumstances and she found that as she got older she was not able to handle the physical work that was involved. She had therefore decided to try to find work with young people and she started doing mentoring work with a school volunteer programme. She had also started a teacher assistant course but had to abandon that after 12 months because Centrelink started to put pressure on her to look for work. She had found work as a foster parent for several teenagers and at that stage had been able to stop receiving NSA. After about 12 months she had been unable to carry on with foster parenting because she found looking after three difficult children very stressful and she wanted to develop her interest in mentoring at schools and with young people. She had found a part-time job at Bakers Delight which involved one day a week (and sometimes two). During 2001 she had tried to develop her voluntary work in the mentoring area and found that very satisfying. She turned 49 in February 2001 and knew that when she reached the age of 50 years she would not be required to satisfy any activity test. She was therefore surprised and frustrated when she was told in mid 2001 that she had to undertake an intensive assistance program for 12 months. On the days that she worked five or six hours at Bakers Delight she found that very physically tiring and she was therefore reluctant to undertake other work of a physical nature in the retail area. She had developed a range of contacts in the school system that she kept in close contact with and expressed interest whenever any possible mentoring or other positions were in prospect.

25. Mrs Wicks said that she had gone to Mission Australia's office every week. The normal routine was that she would check the touch screens as soon as she arrived. These were located downstairs and she always made a point of using those screens. She also sometimes used the touch screens at the Centrelink office because she understood that the information was the same, but there was often a queue at the Centrelink office and it was convenient for her to use the Mission Australia screens. She would then go upstairs to check the newspapers and other material on display.. For some weeks she had worked on a touch typing course with a woman who ran such a course at Mission Australia but at some stage this person had changed the day on which she went to the office. Thereafter, Mrs Wicks tried to continue with a touch typing course using a CD that was available. During this time she had worked on preparing and improving her resume and one of the Mission Australia secretarial staff members (not Ms Hurst) had been helpful in assisting her to improve the presentation of the resume.

26. Apart from the above, there was very little assistance offered to her by Mission Australia staff and she certainly had not been regularly questioned about her activities or asked to account for what she had been doing. Several of the staff (but, again, not Ms Hurst) had been very interested in the voluntary work that she was doing and had often discussed that with her, but not in the sense of telling her that she could not do it. She had seen Ms Hurst only three or four times in the five months that the agreement operated up to the time that she was breached. Mission Australia had only ever suggested one position that she might apply for, namely a caring position in Spearwood that was referred to in the note made by Ms Hurst of the conversation on 29 November 2001. She had told Ms Hurst that she thought the position was unsuitable because she did not have a car and would need to take two buses to and from the place of work, including at night - which she was unhappy about. Nevertheless she had agreed that her application be submitted for that job, but so far as she knew there had never been any response to it.

27. Throughout the term of the agreement she had continued to maintain her contacts in the education area and had actively pursued two possible jobs caring for students, but neither of them had eventuated. She had also made telephone calls from Mission Australia's office when she saw possible positions. In particular she had tried to find Christmas work with Myers, but without success. Early on in the term of the agreement there had been discussions with her about whether she should be involved in the Community Support Program (CSP) - which she understood to be a program that involved special support for job seekers with particular problems. In the event, Centrelink or the Department of Employment had decided that she was not eligible to be involved in that. Also, at the beginning of the term of her agreement, there had been considerable discussion between Mission Australia, herself, and either Centrelink or the Department of Employment (she was not sure which) about whether she could get a complete exemption from intensive assistance because she was almost 50 years old and the term of the agreement was to run for several months after she turned 50. She had been frustrated that this exemption was not granted. She was particularly frustrated later when, in early 2002, she had learnt from another organisation that voluntary work could be an approved activity within certain limits. Mrs Wicks said that during the term of her agreement nobody had ever suggested to her that voluntary work was one of the activities that could possibly be approved and she thought that was a good opportunity missed.

28. The evidence given by Mrs Wicks was not contradicted in any way and I generally accept her evidence. She was unsure about some of the events and meetings but I am satisfied that her recollection of events was generally reliable.

29. Turning to the specific activities that Mrs Wicks was said to have failed to comply with, it is apparent that there is no evidence (and Mr Ellis conceded as much) that Mrs Wicks did not comply with activity J02 ie the weekly checking of touch screens. Mrs Wick's evidence is that she did so and there is no other evidence that she did not. I find that she did.

30. As regards activity J03, ie the self canvassing of potential employers, I find that Mrs Wicks did not systematically canvass large numbers of potential employers on the off chance that a position may eventuate. She did, however, maintain her contacts in the school system that may have led to paid employment and I accept that she canvassed some potential employers, such as Myers.

31. In my opinion, activities J06 (weekly checking of newspapers and applying for suitable jobs) and JO7 (with assistance from provider prepare application letters and apply for suitable advertised positions) should be looked at together to see what action was taken. I find that Mrs Wicks did check the newspapers on a weekly basis. I also accept and find that, apart from the reception and secretarial staff of Mission Australia who engaged her in conversation and provided assistance with preparing her resume, Mrs Wicks was not offered any significant assistance by the provider in relation to preparing application letters and identifying suitable advertised positions-apart from the carer position in Spearwood that arose in late November 2001 (indeed after the date of the alleged breach). In the absence of direct or other satisfactory evidence of regular interviews and reviews of her position, and the provision of advice and assistance in identifying and preparing applications for advertised jobs, I accept Mrs Wick's evidence that she saw Ms Hurst on only a few occasions and that there was no systematic process to assist her look for work. From documents T5 and T11, which tend to confirm Mrs Wicks evidence in this respect, I conclude that Ms Hurst did not speak to Mrs Wicks in the period from 28 July 2001 until 26 November 2001. The note contained in T11 in relation to the conversation that occurred on 26 November 2001 presents a picture of Mrs Wicks angrily refusing to search for jobs and that she shouldn't be expected to work and that it is hard to get work at her age. The note for the contact on 29 November 2001 on folio 44 confirms Mrs Wick's evidence that she would like to have gone on the CSP but Centrelink or the Department would not agree. Importantly, in my opinion, the notes for those two conversations do not support the contention made in document T5 at folio 30 that Mrs Wick's was contacted to discuss the report or that she was told by Ms Hurst that a breach report would be submitted about her. The notes of the conversations on 26 November and 29 November make no reference to Mrs Wicks being informed that a report would be submitted about her and I find that she was not so informed. In the light of the deficiencies that I have identified in the documents I find that the Mission Australia records do not provide a complete picture of the dealings with Mrs Wicks.

32. In the light of the above I have attempted to take a commonsense approach to the evidence before me. The paper work is less than satisfactory and at least one of the alleged failures by Mrs Wicks is conceded not to be made out. On balance I find the following:

* Mrs Wicks had a part-time paid job and she continued to hold that job during the term of the agreement up to the breach date;

* she had a history of voluntary work and a desire to develop that at a time when she was only a few months away from being released from any activity testing at all;

* she satisfied the activity relating to checking the touch screens and the attendance at an interview on the nominated date (although I have significant reservations about whether such an interview occurred in any formal sense);

* she could have been, but was not, informed that voluntary activities could be approved activities within certain limits;

* she satisfied the requirement to check the newspapers and other publications on a weekly basis but was offered no formal assistance by the provider in identifying or applying for jobs (with one late exception);

* throughout the term of the agreement she remained in contact with potential sources of mentoring or caring work that could have resulted in paid employment, as well as undertaking some canvassing of other possible employment opportunities; these activities occurred in the absence of any specific definition of her obligations about canvassing and applying for jobs in the NSAA;

* overall, she was given little formal assistance by the provider in relation to identifying and applying for positions or structured supervision about what activities she was undertaking and how she could meet her obligations.

33. Taken overall, and in the absence of more precise definition of her obligations in the NSAA, and regular supervision by the service provider, I find on balance that Mrs Wicks substantially complied with the activities that she was required to undertake in the agreement to which she was a party. In my opinion the efforts that she did take, in the light of her age and other circumstances and in the light of the very limited assistance that appears to have been provided to her by the provider, were a reasonable and sufficient compliance with the terms. There having been no failure to comply with the terms of the agreement it is not necessary for me to consider whether ss601(6) (a) or (b) are applicable in this case. It follows that Mrs Wicks took reasonable steps to comply with the terms of the agreement and, therefore, satisfied the activity test. In my opinion an activity test breach should not have been found to have occurred on 26 November 2001 and an 18% rate reduction for the six-month period after 18 December 2001 should not have applied.

34. My decision is that the decision of the SSAT made on 9 April 2002 is set aside and in substitution therefor the Tribunal decides that Mrs Wicks did not breach the activity test on 26 November 2001 and the rate reduction for the period 18 December 2001 to 17 June 2002 should not apply. The matter should be remitted to the Secretary for a calculation of the benefits that should have been paid to Mrs Wicks.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member

Signed: ...........(sgd V Wong).................................

Associate

Date/s of Hearing 19 November 2002, 26 February 2003, 29 May 2003

Date of Decision 18 July 2003

Counsel for the Applicant In Person

Counsel for the Respondent Mr Steve Ellis

Solicitor for the Respondent Service Recovery Team, Centrelink