Odeh and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 3 (6 January 2009)

Last Updated: 7 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 3

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1122

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SAMAHE ODEH

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Dr M Denovan, Member

Date 6 January 2009

Place Brisbane

Decision

The Tribunal affirms the decisions under review.

....................[Sgd]..................
MEMBER

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – newstart allowance – whether applicant committed newstart participation failures – if so, whether applicant has a reasonable excuse – decision under review affirmed

Social Security Act 1991 (Cth), ss 624, 629

Rohrmoser v Registrar of Trade Marks (1987) 70 ALR 613
Henney v Secretary, Department of Employment and Workplace Relations [2007] AATA 1639
Vatarescu and Secretary, Department of Employment and Workplace Relations [2007] AATA 1717
Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988

REASONS FOR DECISION

6 January 2009

Dr M Denovan, Member

INTRODUCTION

1. Ms Samahe Odeh, the applicant, seeks review of two determinations by the respondent, Secretary, Department of Education, Employment and Workplace Relations. The first of these, made on 27 August 2007 and affirmed on reconsideration on 19 October 2007, imposed an eight-week non-payment period of Ms Odeh’s newstart allowance in respect to three participation failures in a twelve month period committed on 8 January 2007, 28 March 2007 and 18 July 2007. The second determination, made on 3 October 2007, and affirmed on reconsideration on 29 October 2007, imposed a further eight-week non-payment period in respect of a fourth participation failure in a twelve month period committed on 8 January 2007, 28 March 2007, 18 July 2007 and 13 August 2007.

BACKGROUND

2. Ms Odeh, currently 23 years old, was at all relevant times in receipt of newstart allowance.
3. Ms Odeh failed to attend appointments with her employment service provider (Interact Employment Services (IES)) scheduled for 13 November 2006, 24 November 2006, 28 November 2006, and 18 December 2006.
4. On 8 January 2007 Ms Odeh was required to attend an appointment with IES. She failed to attend the appointment and did not advise that she would be unable to attend. A Centrelink file note indicates that Ms Odeh was contacted on 11 January 2007 by phone, and she indicated that she had informed Centrelink she was going to Sydney and did not think that there was a need to inform IES. On 11 January 2007 a decision was made that Ms Odeh did not have a reasonable excuse for her failure to attend the employment service provider on 8 January 2007 and a participation failure was imposed (the first participation failure).
5. Ms Odeh was notified by mail on 20 March 2007 and in person on 22 March 2007 that she must attend an appointment with IES on 28 March 2007. In the letter dated 20 March 2007 she was notified that failure to attend might amount to a newstart participation failure. On 28 March 2007 Ms Odeh failed to attend the appointment. A Centrelink electronic file note indicates that Ms Odeh was contacted on 5 April 2007, and she stated that she did not receive notification of the appointments. On 5 April 2007 a decision was made that she did not have a reasonable excuse for her failure to attend the appointment, and a participation failure was imposed (the second participation failure).
6. Ms Odeh failed to attend a participation review appointment with Centrelink on 5 July 2008. On 18 July 2007 Ms Odeh was required to attend a participation review appointment with Centrelink. On 18 July 2007 contact was made by phone and the appointment for that day was confirmed. Ms Odeh failed to attend. A Centrelink file note made on 20 July 2007 indicates that when contacted on that day Ms Odeh said that she thought the appointment was at IES and she had called them. It was noted this was not a valid reason as Ms Odeh had been told three times the location of the appointment (the third participation failure).
7. On 10 August 2007 Ms Odeh entered into an Activity Agreement. As part of that agreement Ms Odeh agreed to attend and fully participate in Open Access every Monday, Wednesday and Friday. Ms Odeh failed to attend the first appointment to participate in Open Access on 13 August 2007 (the fourth participation failure).
8. On 27 August 2007, the Respondent advised Ms Odeh by letter of their decision that she did not have a reasonable excuse for her newstart participation failure on 18 July 2007. As a result, an eight-week non-payment period was applied to Ms Odeh’s newstart allowance.
9. On 3 October 2007 a decision was made to apply an eight-week non-payment period to Ms Odeh’s newstart allowance in respect to the participation failure on 13 August 2007.
10. The Social Security Appeals Tribunal affirmed the decisions under review on 15 February 2008.

ISSUES

11. Under s 629 of the Social Security Act 1991 (the Act) newstart allowance is subject to an eight-week non-payment period if a person commits what is described as a newstart participation failure on three or more occasions during a twelve month period.
12. Newstart participation failures are defined in s 624 of the Act. Relevant to this matter, a person commits a participation failure if the person fails to comply with a requirement notified to them, which was reasonable and they were made aware that failure to comply would constitute a newstart participation failure. A person also commits a newstart participation failure if the person fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person.
13. If a person has a reasonable excuse for the failure, the Act provides (under s 624(2)) that a failure of the kinds referred to above is not a newstart participation failure.
14. The issue I have to decide is whether Ms Odeh committed newstart participation failures on 8 January 2007, 28 March 2007, 18 July 2007 and 13 August 2007.

APPLICANT’S EVIDENCE

15. Ms Odeh told me that she had attended a Brisbane Centrelink office on 30 December 2006 and informed them that she was going to Sydney on holidays with her parents and would not be able to attend the appointment with IES on 8 January 2008. She said that the person she spoke with said that they would make a note on her file.
16. Ms Odeh said that on 18 July 2007 she was unable to attend her appointment because she had to care for the younger members of her family whilst her mother was attending a course. Ms Odeh said that she was caring for the children of her sister, who studies during the day. Ms Odeh thought her sister may have had an exam that day. Ms Odeh said that she rang IES to reschedule her appointment however she was told that no such appointment had been booked for her. Later that day Ms Odeh’s mum suggested that perhaps she had mistaken the venue for the appointment, and suggested that she ring Centrelink and reschedule the appointment. Ms Odeh said that she rang Centrelink.
17. Ms Odeh said that someone rang her to confirm the appointment on 18 July 2007, she accepted it could have been Centrelink, but claimed she did not know it was Centrelink, it could also have been IES.
18. Ms Odeh said that when she was on the first non-payment period she was told by Centrelink officers to ignore Centrelink and IES correspondence. As the appointment of the fourth participation failure was scheduled during this non-payment period she assumed she did not have to attend.
19. Ms Odeh said that she has 13 siblings and that she has no control over who answers the telephone, and many of her siblings do not pass on telephone messages. As a consequence, Ms Odeh said that she does not always get messages left to her by Centrelink or others. She said her mother opens and deals with her Centrelink written correspondence and consequently she was not always aware of appointments and the consequences of failing to attend appointments.

CONSIDERATION OF THE ISSUES

20. It is not in dispute that Ms Odeh was required to attend appointments on the relevant four dates and failed to do so. It is also not in dispute that Centrelink advised Ms Odeh in writing, of these appointments, and warned that failure to attend the appointments could result in a newstart participation failure. The question is whether Ms Odeh had a reasonable excuse for one or more of the participation failures.
21. Ms Odeh’s mother, Mrs Odeh represented her daughter at the hearing. She contended that Centrelink makes many errors. The lack of notation of the conversation her daughter claims to have had with the Centrelink officer and the failure to reschedule the appointment with IES as promised, is due to such errors.
22. Mr Hamilton, advocate for the respondent, submitted that Ms Odeh was not a creditable witness and her excuses for not attending appointments were inconsistent. He argued that Ms Odeh’s evidence to Centrelink, the SSAT and the AAT was conflicting, inconsistent, self serving and not reasonable. He pointed out that in the period 13 November 2006 to 2 September 2008 Ms Odeh failed to attend appointments on multiple occasions, and on eight of these occasions it was recorded that she had an invalid reason.
23. In Rohrmoser v Registrar of Trade Marks [1] the Federal Court considered that an excuse was reasonable if the circumstances that prevented compliance were out of control of the person.
24. In relation to the first participation failure, Centrelink records indicate that Ms Odeh was reminded of the requirements to attend the interview when she attended the Brisbane Centrelink office on 28 December 2006. This is inconsistent with her claim that the Centrelink officer undertook to inform IES and reschedule the interview. In any case, correspondence to Ms Odeh dated 28 December 2006 makes it clear that it was Ms Odeh’s responsibility to advise her employment service provider at least 24 hours before the appointment if she was unable to attend. Advising Centrelink of her inability to attend did not satisfy that responsibility. Ms Odeh’s holiday was a foreseeable occasion and she does not have a reasonable excuse for her failure to advise IES of her inability to attend.
25. In relation to the second participation failure, Ms Odeh was given notification in writing and by phone. That Ms Odeh generally delegates responsibility for her Centrelink correspondence to her mother, who failed to inform her of an obligation to attend, is not a reasonable excuse. Ms Odeh was aware, or should have been aware, that she had an ongoing obligation to attend appointments and she is personally responsible for making sure she is aware of when such appointments are scheduled. Ms Odeh has no reasonable excuse for not attending the interview scheduled for 28 March 2007.
26. In relation to the third interview, Ms Odeh confirmed her awareness of the interview when contacted by Centrelink on the morning of the scheduled interview. This seems at odds with her claim that she could not attend because she had to look after her sister’s children. Her sister’s children required caring by her because, according to Ms Odeh, the children’s usual carer, her mother, was attending a course. Such attendance was a foreseeable occasion. That Ms Odeh confused the venue and therefore the nature of the scheduled appointment reflects the fact that she fails to give due consideration and attention to her obligations to both Centrelink and IES. Centrelink records indicate that Ms Odeh was informed of the location of this appointment on several occasions and her reason for not attending and not informing of her inability to attend are both unreasonable.
27. In relation to the fourth participation failure, it was open to Ms Odeh to specifically enquire about her need to attend Open Access. That Ms Odeh acted on her assumption without checking the validity of that assumption was not responsible or reasonable and she has no reasonable excuse for her failure to attend.
28. The test for reasonableness is an objective one that applies to the personal reason of the person for failing to comply at the time [2]. It is not whether the Tribunal considers that, in all the circumstances, the respondent should be excused. It is whether the Tribunal is satisfied about the reason proffered by the person, which justifies the non-compliance with the notice[3]. There is no evidence to support Ms Odeh’s contention that multiple small mistakes made by Centrelink lead to any of the participation failures.
29. For these reasons I find Ms Odeh committed newstart participation failures on 8 January 2007, 28 March 2007, 18 July 2007 and 13 August 2007.

DECISIONS

30. The Tribunal affirms the decisions under review.
    

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: .......................[Sgd]..................................................

Joan Torbey, Associate

Date of Hearing 19 November 2008

Date of Decision 6 January 2009

The Applicant was supported by her mother

Advocate for the Respondent Mr R Hamilton, Centrelink

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[1] (1987) 70 ALR 613, affirmed in Henney and Secretary, Department of Employment and Workplace Relations [2007] AATA 1639.
[2] Vatarescu and Secretary, Department of Employment and Workplace Relations [2007] AATA 1717.
[3] Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988 per Kiefel J.