Vale and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 94 (13 February 2009)

Last Updated: 13 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4583

GENERAL ADMINISTRATIVE DIVISION		)
	Re		WILLIAM VALE

Applicant

And

SECRETARY, DEPT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Date 13 February 2009

Place Sydney

Decision

The decision under review is affirmed.

...................[sgd]......................
Ms N Isenberg
Senior Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – participation failure – no reasonable excuse – decision under review affirmed

Social Security Act 1991 – Sections 624, 626, 629

Social Security (Reasonable Excuse) (DEWR) Determination 2006

REASONS FOR DECISION

13 February 2009

Ms N Isenberg, Senior Member

BACKGROUND

1. Apart from two periods, Mr Vale has received social security benefits since March 2000.
2. As part of his responsibilities as a social security beneficiary, Mr Vale was obliged to attend an appointment with Jobs Australia on 9 May 2008 but did not do so.
3. Centrelink decided that Mr Vale’s failure to attend was a participation failure. Because this was the third occasion in twelve months that he had failed to attend an appointment, Centrelink imposed an eight week non-payment period.

ISSUES BEFORE THE TRIBUNAL

• Did Mr Vale fail to attend an appointment with Jobs Australia in Armidale on 9 May 2008 and, if so, did he have a reasonable excuse for not doing so?
• Was the decision to impose an eight week non-payment period correct?

LEGISLATIVE FRAMEWORK

5. Newstart allowance may not be payable if a person commits a newstart participation failure such as failing to comply with a reasonable requirement to attend a particular place for a particular purpose. This does not apply if the person has a reasonable excuse for not attending: s 626(2) of the Social Security Act 1991 (“the Act”). The Social Security (Reasonable Excuse) (DEWR) Determination 2006 (“the Determination”) sets out the matters that must be taken into account when determining if a person has a reasonable excuse for committing a newstart participation failure.
6. If a person commits three participation failures during a twelve month period newstart allowance may be stopped for eight weeks: s 629(1)(a).

DISCUSSION OF EVIDENCE AND FINDINGS

7. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents").

ALLEGED BREACH: 9 MAY 2008

8. Mr Vale had told Centrelink that he did not attend the appointment because he was not notified about it. He had told the Social Security Appeals Tribunal (“the SSAT”) he was attending a welding course at the time of the appointment, until it was pointed out that this had not started until the following week. He then said that he could not remember why he did not go to the appointment but it was probably because he forgot.
9. Mr Vale told me that he was aware of the appointment at 11:30 am on 9 May 2008 and he knew he was to attend. He said he did not attend because he had been drinking and did not want to go there smelling of alcohol. The previous day was his brother’s birthday and he had unexpectedly arrived at Mr Vale’s home late in the afternoon. There was a large impromptu family party at which Mr Vale drank through the night and till about 10 am on 9 May. He could not say whether he consciously decided against attending or if the appointment time passed while he was inebriated.
10. He was unable to contact Jobs Australia in advance because his brother arrived late in the afternoon (presumably too late to be able to telephone to postpone) and anyway he had no credit on his phone. A pubic phone box is about 4 blocks away, but anyway, he said, he did not think of phoning.
11. Mr Vale said he drinks only on two days per week and that he drinks until he gets drunk. He was happy with that level of alcohol intake and, as “a lot of people do it”, he did not think he needed any counselling or medical intervention about his alcohol intake.
12. I find that Mr Vale committed a participation failure under s 624(1)(a) of the Act when he failed to attend the appointment with Jobs Australia on 9 May 2008.
13. I considered whether Mr Vale’s circumstances might come within the reasonable excuse provisions of the Determination. None is relevant. I note that there was no evidence before me that Mr Vale has alcohol dependency: paragraph 4(2)(f). His over-imbibing on 8-9 May and his drinking to excess twice weekly are not evidence of dependency. I do not regard his attending his brother’s birthday celebration as an unforseen family responsibility: paragraph 4(2)(g).
14. There was some material in the papers that Mr Vale has limited literacy skills: paragraph 4(2)(b). The significance of this falls away as there was no dispute that Mr Vale had received notice of the appointment.
15. I find that he did not have a reasonable excuse for not attending the appointment as required. I do not accept that not attending because he wanted to avoid breathing alcohol during the appointment as a reasonable excuse. Nor do I consider it a reasonable excuse that he was intoxicated, as is likely to be the case given that he had drunk through the night.

IMPOSITION OF AN EIGHT WEEK NON-PAYMENT PERIOD

16. On 12 June 2008 the SSAT found Mr Vale to have committed two participation failures – on 21 June 2007 and 14 December 2007. There was no application for review in respect of that decision.
17. I am therefore satisfied that Mr Vale had committed two previous newstart participation failures within the 12 months before the breach that is the subject of the present review, namely 9 May 2008. Accordingly, the decision to impose an eight week non-payment period was correct: s 629(1)(a) of the Act.

DECISION

18. The decision under review is affirmed.
    

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ................[sgd]................................................................

Associate

Date/s of Hearing 11 February 2009

Date of Decision 13 February 2009

Applicant self-represented

Solicitor for the Respondent Ms S Memmott, Centrelink Legal Services