Sosa de Whatmore and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 13 (12 January 2010)

Last Updated: 12 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 13

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2709

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MARTHA SOSA DE WHATMORE

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Dr T M Schafer, Member

Date 12 January 2010

Place Sydney

Decision

The decision under review is affirmed.

...................[sgd]..................
Dr T M Schafer
Member

CATCHWORDS

SOCIAL SECURITY – Parenting payment – participation failure – whether Applicant committed participation failures – whether a reasonable excuse existed for the participation failures applied by the Respondent – inconsistent evidence of the Applicant – the decision under review is affirmed.

LEGISLATION
Social Security Act 1991 – sections 500, 500A, 500ZA, 500ZE and 500ZF
Social Security (Reasonable Excuse) (DEWR) Determination 2006

CASELAW

REASONS FOR DECISION

January 2010

Dr T M Schafer

BACKGROUND

1. On 6 September 1999, Ms Martha Sosa De Whatmore was granted parenting payment (single). She has two children, a daughter aged 10 years and a son aged 16 years.
2. On 24 July 2008, Ms Sosa De Whatmore signed an Activity Agreement with Adult Multicultural Education Services (AMES) in Bankstown. That Activity Agreement required her to attend jobsearch sessions on Mondays, Thursdays and Fridays from 9:30am – 2:00pm at the local offices of AMES Employment from 24 July 2008 to 26 January 2009.
3. Ms Sosa De Whatmore failed to attend a jobsearch appointment on 25 July 2008.
4. On 22 September 2008 Ms Sosa De Whatmore commenced casual employment with Farnhams Caring Agency as a personal carer.
5. On 15 December 2008, Ms Sosa De Whatmore voluntarily ceased working for Farnhams Caring Agency.
6. In a participation report dated 23 December 2009, the job network member noted that Ms Sosa De Whatmore’s employer had been advised by Ms Sosa De Whatmore that she was unable to arrange suitable childcare between the end of December and early February 2009. Her employer expected that she would return to work as soon as childcare is arranged. However, when the job network member contacted Ms Sosa De Whatmore on 23 December 2009 to assist her with this issue, she stated that she did not require childcare and that she had left her employment because she was on a holiday, returning in late January or early February. The job network member alerted Centrelink to this situation on 24 December 2009, noting that Ms Sosa De Whatmore had “outstanding participation or serious failures requiring investigation”.
7. On 2 February 2009, the job network member contacted Ms Sosa De Whatmore and arranged an appointment on 3 February 2009 to commence new jobsearching. Ms Sosa De Whatmore failed to attend that appointment. She later explained to the job network member that she had forgotten about her appointment
8. On 9 February 2009 Ms Sosa De Whatmore signed an Activity Agreement with IPC Employment Ltd (IPC) for the period between 9 February 2009 and 7 August 2009. The Agreement required her to attend onsite jobsearch appointments at the IPC offices in Hornsby every Tuesday, Wednesday and Thursday from 9:30am to 11:30am.
9. Ms Sosa De Whatmore failed to attend her jobsearch appointment on 12 February 2009.

Centrelink notices

10. Centrelink issued written notices on 8 August 2008 and 11 February 2009 to Ms Sosa De Whatmore, following her failures to attend the onsite appointments on 25 July 2008 and 3 February 2009. The notices advised that her failure to attend a scheduled appointment constituted a participation failure, and informed her of the number of participation failures she had committed during the previous 12 months. They also stated that her parenting payment may stop for eight weeks if she committed three or more participation failures within 12 months.
11. On 27 February 2009 Centrelink notified Ms Sosa De Whatmore in writing that she had committed a serious participation failure on 15 December 2009 by leaving her employment due to inappropriate behaviour and without reasonable excuse. She was advised that, as a result, her parenting payment would be discontinued for an eight week period between 5 March 2009 and 29 April 2009.
12. On 4 March 2009 Centrelink issued a further written notice that she had committed a third participation failure on 12 February 2009 and that as a consequence, she was subject to an eight week non-payment period from 19 February 2009 to 15 April 2009.

Appeal to the Tribunal

13. Ms De Whatmore contacted Centrelink on 4 March 2009 and requested a review by an Authorised Review Officer of the decisions to impose an eight week non-payment period as a result of her participation failures on 25 July 2008, 3 February 2009 and 12 February 2009 and her serious failure on 15 December 2008.
14. On 25 March 2009 the Authorised Review Officer affirmed each of the decisions under review.
15. On 7 April 2009 Ms Sosa De Whatmore lodged an appeal with the Social Security Appeals Tribunal (SSAT). The SSAT decided to vary the Centrelink decision by not applying the participation failure on 3 February 2009, and affirming the participation failures on 25 July 2008 and 12 February 2009 as well as the serious failure of 15 December 2008.
16. On 15 June 2009 Ms Sosa De Whatmore appealed to this Tribunal for review of the decision of the SSAT.
17. On 17 July 2009 the Administrative Appeals Tribunal granted an order partially staying the decision of the SSAT and allowed Ms Sosa De Whatmore’s parenting payments to continue from 9 July 2009 and until further order of the Tribunal or until the decision of the Tribunal on the application for review came into effect.

ISSUE

18. The issues before the Tribunal are:
    • (i) whether Ms Sosa De Whatmore committed participation failures on 25 July 2008 and 12 February 2009 by failing to attend appointments arranged for her;
    • (ii) whether Ms Sosa De Whatmore committed a serious participation failure on 15 December 2008 when she became unemployed due to a voluntary act; and
    • (iii) whether Ms Sosa De Whatmore had a reasonable excuse for those failures.

LEGISLATION

19. The criteria that must be satisfied to qualify for parenting payment are set out in section 500 of the Social Security Act 1991 (the Act). Section 500 of the Act provides, relevantly, as follows:

500  Qualification for parenting payment

              (1)  A person is qualified for parenting payment if:

           ...         

(c) in a case where the person is not a member of a couple and does not have at least one PP child who has not turned 6—the person meets any participation requirements that apply to the person under section 500A;

...

20. Ms Sosa De Whatmore’s children were older than 6 years of age at the time and therefore, in order to qualify for parenting payment, she was required to meet the participation requirements under section 500A of the Act. Section 500A provides:

500A  Participation requirements

                   The participation requirements are as follows:

                     (a)  the person must enter into a Parenting Payment Activity Agreement when the person is required by the Secretary under section 501 to do so;

                     (b)  while the agreement is in force the person must comply with its terms;

                     (c)  at any time while the agreement is in force the person must be prepared to enter into another such agreement, instead of the existing agreement, if required to do so by the Secretary under section 501;

                     (d)  the person must comply with any requirements that the Secretary notifies to the person under subsection 502(1).

21. Section 500ZA(1) of the Act prescribes a number of circumstances which constitute a parenting payment participation failure. Section 500ZA(1) provides:

500ZA  Parenting payment participation failures

             (1)  A person commits a parenting payment participation failure if the person is subject to participation requirements and the person:

                     (a)  fails to comply with a requirement:

                              (i)  that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

                             (ii)  that was reasonable; and

                            (iii)  the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a parenting payment participation failure; or

                     (b)  fails to comply with a requirement to enter into a Parenting Payment Activity Agreement; or

                     (c)  fails to comply with a term of a Parenting Payment Activity Agreement between the Secretary and the person; or

                     (d)  fails to comply with a requirement that the Secretary notifies to the person under subsection 502(1); or

                     (e)  fails to attend a job interview; or

                      (f)  fails:

                              (i)  to commence, complete or participate in an approved program of work for income support payment that the person is required to undertake; or

                             (ii)  to comply with the conditions of such a program; or

                     (g)  fails to continue his or her involvement in a labour market program because he or she:

                              (i)  voluntarily ceases to take part in the program; or

                             (ii)  is dismissed from the program for misconduct; or

                     (h)  fails to comply with a requirement to undertake another activity referred to in paragraph 500ZB(1)(b).  

(2) Despite subsection (1), a failure of a kind referred to in that subsection is not a parenting payment participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

22. In determining whether a person has “reasonable excuse” for committing a participation failure under subsection 500ZA(2) of the Act, the Secretary must take into account, where relevant, a list of the matters provided under section 4 of the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (the Determination). The Secretary must, however, be satisfied under subsection 4(3) of the Determination that such matters had a significant effect on the person’s capacity to comply with the requirement or the provision of the Act to which the failure or refusal relates.
23. Under section 500ZE of the Act, a parenting payment will be discontinued in circumstances where the person commits 3 parenting payment participation failures in 12 months, or the person is unemployed due to misconduct or due, either directly or indirectly, to a voluntary act of the person. Section 500ZF of the Act sets out the manner in which the eight week non-payment period is to be applied.
    

CONSIDERATION

Participation failures on 25 July 2008 and 12 February 2009

24. Ms Sosa De Whatmore’s failure to attend a scheduled onsite appointment on 25 July 2008 was a breach of the terms of the Activity Agreement signed on 24 July 2008. As this constituted a failure to comply with a term of her Parenting Payment Activity Agreement with the Secretary (in this case, the delegate AMES), this was a breach of section 500ZA of the Act. Similarly, her failure to attend an appointment on 12 February 2009 constituted a failure to comply with a term of her Activity Agreement with the Secretary (the delegate IPC) and was therefore a breach of section 500ZA of the Act. These breaches would be regarded as participation failures unless the Secretary can be satisfied that Ms Sosa De Whatmore had reasonable excuses for her non-attendances on 25 July 2008 and 12 February 2009.
25. In earlier evidence Ms Sosa De Whatmore gave to the Authorised Review Officer and SSAT, she stated that the reason she failed to attend jobsearch interviews on 25 July 2008 and 12 February 2009 was that her children were sick. She was not, however, able to provide copies of medical certificates in support of her claim.
26. When Ms Sosa De Whatmore’s application was first heard before this Tribunal on 8 October 2009, she again gave evidence regarding the circumstances that prevented her from attending the appointments. She stated that the reason for her participation failures was that she, rather than her children, was ill on 25 July 2008 and 12 February 2009. She was, however, unable to produce medical certificates substantiating her illness on those dates.
27. The Tribunal adjourned until 30 October 2009 to provide Ms Sosa De Whatmore with a two-week period to obtain medical certificates that would support her claim that she was ill on 25 July 2008 and 12 February 2009. However, Ms Sosa De Whatmore was unable to provide medical certificates at the resumed hearing.
28. In the absence of any supporting medical evidence, the Tribunal is unable to accept Ms Sosa De Whatmore’s claims regarding her or her children’s ill health on 25 July 2008 and 12 February 2009 as a relevant matter for consideration in determining whether she had a reasonable excuse for her participation failures on those dates.
29. The Tribunal therefore cannot be satisfied that Ms Sosa De Whatmore had a reasonable excuse for her failure to attend the onsite jobsearch appointments on 25 July 2008 and 12 February 2009. Accordingly, these failures constitute parenting payment participation failures under section 500ZA of the Act.

Serious participation failure

30. The Secretary submitted that Ms Sosa De Whatmore committed a serious participation failure on 15 December 2008 when she ceased her employment with Farnhams Caring Agency due to a voluntary act and without reasonable excuse.
31. Ms Sosa De Whatmore gave evidence before the Tribunal that her last day at Farnhams Caring Agency was on 15 December 2008, and that she left for her holidays in Queensland on 24 December 2008 and returned home on 26 January 2009.
32. The following record of information about Ms Sosa De Whatmore’s employment was provided by her employer to Centrelink:

Gloria advised me that customer (Ms Sosa De Whatmore) last worked on 15/12/08 and said had child ill in hospital with a virus. States customer was offered minimum of 15 hrs per week and often worked only 10hrs or less. Customer was required to to [sic] attendant care and was unreliable. Customer often was not available to work and employer accomodated [sic] her as customer only available during school hours 9.30am to 2.30pm and was not expected to work on weekends or evenings. States customer was due to return on 19/1/09 but simply didn’t return. States customer has been uncontactable as was ongoing issue with customer not being a reliable employee.

33. Ms Sosa De Whatmore gave evidence before the Tribunal regarding her work arrangements with her employer during January 2009.
34. At the initial hearing, Ms Sosa De Whatmore stated that she was unable to attend work from 15 December 2009 because she went on holidays in Queensland, and because she could not access childcare for her children during the school holidays. She stated that her employer told her that it would be “okay” to take holidays. At the resumed hearing, Ms Sosa De Whatmore stated that she was not offered any assistance regarding childcare when the job network member contacted her on 23 December 2009.
35. At the initial hearing, Ms Sosa De Whatmore stated that her child “could have had” a virus but was not in hospital. At the resumed hearing, she stated that the child was ill in December, but not at the time of the holidays. She claimed she did not know she was required to provide a medical certificate to support this claim.
36. At the initial hearing, Ms Sosa De Whatmore stated that she contacted her employer a number of times in January 2009, while she was still staying in Queensland, to discuss her employment and was told there was no work available. She also stated that when she called her employer on 16 January 2009, she was again told there was no work available. She then stated that on 16 January 2009 she informed her employer that she would be able to return to work after the end of the school holidays. She then stated that it was in fact her employer that contacted her on 16 January 2009 to ask for her “business number”.
37. At the resumed hearing, Ms Sosa De Whatmore explained that she initially planned to take a week’s holidays for Christmas because her employer had told her that taking holidays over the Christmas period would not be a problem. She then said she was not planning to go on holidays. She then explained that she stayed longer than planned in Queensland, until 26 January 2009, because she thought she would not be able to arrange childcare in January. Consequently, she thought she would be forced to stay home to look after her children and would not be able to resume work until after the school holidays ended, in late January.
38. Much of Ms Sosa De Whatmore’s account regarding her employment arrangements with Farnhams Caring Agency in January 2009 contradicts the information given by her employer to Centrelink. While Ms Sosa De Whatmore asserts that she had been in contact with her employer throughout January 2009, her employer reported that she could not be contacted during this period. Ms Sosa De Whatmore alleges that she communicated to her employer regarding her inability to work until after the school holidays due to childcare issues, and that she was told that there was no work was available. Her employer, however, reported that she was expected to return to duty on 19 January 2009.
39. It must be noted that Ms Sosa De Whatmore’s evidence before the Tribunal was at times inconsistent and unsupported by any of the evidence before the Tribunal.
40. Based on the evidence presented to the Tribunal, I am satisfied that Ms Sosa De Whatmore ceased her employment at Farnham Caring Agency due to the voluntary act of not returning to work as expected on 19 January 2009.
41. Under subsection 4(2)(g) of the Determination, the Secretary must consider “any unforeseen family or caring responsibilities” of Ms Sosa De Whatmore, if such a consideration is relevant in determining whether she had a reasonable excuse for her participation failure on 15 December 2008. There appears to be no other matter under subsection 4(2) of the Determination that is relevant to Ms Sosa De Whatmore’s circumstance.
42. Even if the Tribunal were to accept Ms Sosa De Whatmore’s evidence regarding her work arrangements with her employer in January 2009, I am not satisfied that Ms Sosa De Whatmore’s caring responsibilities toward her children during their school holidays were “unforeseen”. In my view, she had ample time between 22 September 2008 and 15 December 2008 to seek assistance in finding childcare for the upcoming school holidays. There is no evidence before the Tribunal demonstrating that she endeavoured to arrange childcare either before or after 15 December 2008 for the school holiday period, so that she could continue her employment without disruption.
43. In my view, Ms Sosa De Whatmore did not have a reasonable excuse for her failure to return to her employment on 19 January 2009. The Tribunal therefore concludes that she committed a serious participation failure in respect of ceasing her employment with Farnham Caring Agency.

Consequences of repeated failures

44. The Tribunal is satisfied that Ms Sosa De Whatmore:
    • (a) committed two participation failures on 25 July 2008 and 12 February 2009 by failing to attend scheduled onsite jobsearch appointments;
    • (b) committed a serious participation failure on 15 December 2008 by effectively ceasing her employment with Farnham Caring Agency through a voluntary act; and
    • (c) those failures all occurred within a period of 12 months.

Pursuant to section 500ZE of the Act, a non-payment period of 8 weeks applies in respect of her parenting payment.

DECISION

45. The decision under review is affirmed.
46. The partial stay granted on 17 July 2009 in respect of the non-payment period is to be lifted.
47. The matter is remitted to the Respondent to determine the period of non-payment remaining.
48. The remaining period of non-payment in respect of Ms Sosa De Whatmore’s parenting payment is to be applied.
    

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr T M Schafer, Member.

Signed:

Associate

Date of Hearing 30 October 2009

Date of Decision 12 January 2010

Appearance for the Applicant Self-represented

Appearance for the Respondent Centrelink Legal Service and Procurement Branch