Toma and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 589 (7 August 2009)

Last Updated: 10 August 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 589

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1382

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RAMI TOMA

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 7 August 2009

Place Melbourne

Decision

The decision under review made by the Social Security Appeals Tribunal on 13 March 2009 is affirmed.

..............................................
John Handley
Senior Member

SOCIAL SECURITY – applicant is a Newstart Allowance recipient – entered into an activity agreement – three participation failures – whether any reasonable excuse – letter from Job Network Provider notifying an appointment constituted a notice for the purposes of s 23(12) of the Social Security Act 1991 – letter deemed to have been received – decision affirmed.

Acts Interpretation Act 1901, s 28A, s 29

Evidence Act 1995, s 160, s 163

Social Security Act 1991, s 23(12), s 624, s 629

Social Security (Administration) Act 1999, s 63

REASONS FOR DECISION

7 August 2009

Mr John Handley, Senior Member

1. Mr Toma applies to review a decision made by the Social Security Appeals Tribunal (SSAT) on 13 March 2009. The SSAT affirmed the decision previously made by an officer of Centrelink to impose an eight week non-payment period of Newstart Allowance by reason of participation failures in January and October 2008.
2. The application was listed for hearing on 28 July 2009. Mr Toma appeared without representation. Ms Bramley, who is an officer of Centrelink, represented the respondent.
3. The circumstances giving rise to the application may be briefly summarised as follows.
4. Mr Toma entered into an activity agreement with Matchworks, a job network provider, on 30 November 2007. The agreement required him to undertake a number of activities or events. On 19 December 2007 he was advised by letter of an appointment with Matchworks on 9 January 2008. He did not attend.
5. On 20 December 2007 the applicant was notified of an appointment arranged for him at the Kangan Batman Institute of TAFE to participate in a work for the dole program. He did not attend.
6. On 12 June 2008 Mr Toma entered into another agreement with Matchworks and on 15 September 2008 he was notified of an appointment with Matchworks on 13 October 2008. He did not attend that appointment.
7. The three occasions referred to above are relied upon by the respondent as participation failures which have given rise to the decision to impose an eight week non-payment period.
8. In evidence at the Tribunal, Mr Toma said that he did not attend the first two appointments because he was ill. On the first occasion he said he attended Dr Bahnasawi, his general practitioner, and obtained a certificate. He said that he took that certificate to Matchworks, it was copied and he was directed by Matchworks to take the original certificate to Centrelink. He said Matchworks retained a copy on their file. He said that he was also given a copy but did not have it with him at the hearing and assumed that he had it amongst his papers at his home. There is no reference in the T-Documents to the applicant ever having obtained a certificate or of a certificate ever having been made available to either Matchworks or Centrelink. I am satisfied, and find as a fact, that a medical certificate was not obtained.
9. On the second occasion the applicant said that he attended at the clinic of Dr Bahnasawi but learnt that he was then overseas. He said he did not obtain a certificate from another doctor practising at the clinic because he understood that Centrelink had directed him to obtain a certificate from his doctor.
10. The applicant said in evidence that the sickness or illness giving rise to his inability to attend the first two appointments was vomiting. Later he said that he had pain and discomfort in his left shoulder, there were occasions when he vomited upon waking up in the morning and on other occasions his legs were sore and he could not move them. He said that he suffers from epilepsy and has been treated at the Northern Hospital in Epping. Medication to control his epilepsy has been prescribed.
11. Having observed the applicant in evidence and having read the documents lodged, I am not satisfied that the applicant suffered an illness on either 9 or 18 January 2008 which prohibited him from attending the appointments arranged by Matchworks. The explanations for illness given by the applicant at the hearing were bizarre and were not supported by any documented evidence. The SSAT in its decision recorded that the applicant did not have a clear memory of the above two occasions and I doubt, almost 4 months subsequent to the SSAT decision, that his memory has improved.
12. The third participation failure relied on by the respondent occurred on 13 October 2008 when the applicant did not attend an appointment. He said that he did not receive a letter which was forwarded to him on 15 September 2008 from Matchworks notifying him of it. Prior to that date, he said that he had not ever had any difficulty receiving mail which was sent to him and has not ever known an occasion where a letter has been sent but has not been received. He agreed with a question put to him by Ms Bramley that in October 2008 he was receiving his Newstart Allowance forms every fortnight and agreed that the letter notifying him of the appointment was forwarded to the address held by Matchworks, Centrelink and by this Tribunal. He said that received letters are kept at his home, in his bag and he checks them daily to determine whether he has appointments. He said that he does not keep a diary or a calendar and doubts that he would have forgotten the appointment; it being scheduled four weeks after the letter was forwarded.
13. Section 160 of the Evidence Act 1995 presumes that a postal article sent by prepaid post and properly addressed will be received four working days after it was posted. Section 163 of the same Act contains a similar provision except for letters from a Commonwealth Agency in which case the document is presumed to have been received five business days after it was posted. By these provisions alone the presumption could be reversed if I were to find as a fact that the letter was not received.
14. Section 624(1) of the Social Security Act (the Act) provides that a person commits a participation failure if the person fails to comply with a reasonable requirement that was notified under s 63(2) of the Social Security (Administration) Act 1999 (the Administration Act). The notice must also advise the person that a failure to comply with the requirement may constitute a participation failure. Notification is effective if a notice was sent by prepaid post and addressed to the person at the address last known to the Secretary (s 63(7) of the Administration Act; see also s 29 of the Acts Interpretation Act 1901). A notice is not defined in either the Act or the Administration Act. In the Macquarie Dictionary, notice is defined as “a note, placard or the like conveying information.” The letter dated 15 September 2009 contained the details of the appointment with Matchworks. It also advised the consequences of failing to comply with the notice. It is a notice and it satisfies
    s 63(2) of the Administration Act. The requirement to attend for interview was also reasonable (refer s 63(4) of the Administration Act). The letter was addressed to Mr Toma at his current residence. Section 63(7) of the Administration Act is also satisfied. For the purposes of s 28A & s 29 of the Acts Interpretation Act 1901 I am satisfied that the job network provider, having a delegation of the Secretary, has authority to issue a written notice, being a letter (refer s 234 of the Administration Act and Instrument No 13 of 2006 Delegation under section 234 of the Social Security (Administration) Act 1999).
15. However, s 23(12) of the Act provides that if s 28A and s 29 of the Acts Interpretation Act 1901 applied to a notice issued under the Act, those sections of the Acts Interpretation Act shall apply:

... even if the Secretary is satisfied that the person did not actually receive the notice.

16. For the above reasons and by regard to the Social Security Act, the Social Security (Administration) Act, the Evidence Act 1995 and the Acts Interpretation Act, I am obliged to find as a matter of law that the letter of 15 September 2008 forwarded to the applicant notifying him of the appointment of 13 October 2008 was received.
17. Section 629 of the Act provides that a Newstart Allowance is not payable to a person for a period of eight weeks if that person has committed three Newstart participation failures within a twelve month period.
18. The applicant has fallen foul of three provisions within s 624(1) of the Act being:

(a) failing to comply with a notification given under s 63 of the Administration Act (refer earlier);

(b) failing to comply with the activity test by reason of his failure to attend the Kangan Batman Institute of TAFE; and

(c) failing to comply with a term of an activity agreement (being the failure to attend interviews at the Kangan Batman Institute of TAFE).

The absence of compliance with the above requirements constitutes Newstart participation failures which, in this case, have occurred on three occasions within a twelve month period (refer s 629(1) of the Act).

19. A person can have the consequences of a Newstart participation failure ameliorated if they have a reasonable excuse for their Newstart participation failure or failures (refer s 624(2) of the Act). A reasonable excuse can be constituted by one of the events or circumstances found within legislative instrument Social Security (Reasonable Excuse) (DEWR) Determination 2006. Pursuant to
    s 624(2B), other matters may be taken into account when deciding the reasonableness of the excuse.
20. Nothing within the above Determination assists the applicant. The circumstances described by the applicant constituting his illness are bizarre, unsupported by medical evidence and do not constitute a reasonable excuse. There is nothing in the reasons of the SSAT indicating the provision of a medical certificate to explain the non-attendance at the first interview. The explanation for non-attendance at the second interview is implausible. By reason of the Act deeming the letter of appointment of 13 October 2008 to have been received, I cannot find that he had a reasonable excuse for not attending that appointment.
21. In all of the above circumstances I am satisfied that the decision made by the Social Security Appeals Tribunal on 13 March 2009 should be affirmed.
    

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of

John Handley, Senior Member

Signed: .....................................................................................

Grace Carney, Personal Assistant

Date of Hearing 28 July 2009

Date of Decision 7 August 2009

Advocate for the Applicant Unrepresented

Advocate for the Respondent Ms Ailsa Bramley, Centrelink