Craven and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 459 (18 June 2010)

Last Updated: 21 June 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5878

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GORDON CRAVEN

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Dr M Denovan, Member

Date 18 June 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.................[Sgd].............................
Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Whether terms of the Newstart Employment Pathway Plan were unreasonable – Decision affirmed.

Social Security Act 1991 (Cth) s 606

Mark Spencer v Secretary, Department of Social Security [1998] FCA 445

REASONS FOR DECISION

18 June 2010

Dr M Denovan, Member

1. Gordon Craven, the applicant, has been in constant receipt of newstart allowance since 27 October 2005. On 11 August 2009, he entered into a Newstart Employment Pathway Plan (EPP) which required him to attend monthly appointments with Salvation Army Employment Plus and to search for work by contacting one employer per fortnight. The plan referred to Mr Craven’s goals as being “to continue working 5 hours per week for Penny’s flowers whilst trying to gain additional employment or volunteer work for a total of at least 8 hours a week”.
2. Initially, Mr Craven considered that he should not be required to enter into an EPP. However, he now concedes that he is required to do so, however, he believes that the terms of the EPP were unreasonable. The decision to not vary the terms of the EPP was affirmed by both an authorised review officer and the SSAT. Mr Craven applied to this Tribunal for review on 11 December 2009.
3. Mr Craven entered a new EPP on 13 April 2010, bringing an end to the EPP which is the subject of this decision. Mr Guthrie, for the respondent, contended that the appeal was therefore futile, and could have no practical effect or benefit to Mr Craven. Mr Craven said that he felt the agreement may have precedent effect, and would thereby affect him by way of potential terms included in future EPPs that he may be required to enter.

LEGISLATIVE SCHEME

4. The rules in relation to EPPs are contained in Part 2.12 subdivision C of the Social Security Act 1991 (Cth) (the Act). Section 606 of the Act provides that the plan is to include requirements which the Secretary regards as suitable for the person. Subsection (3) further provides that when considering whether to approve a plan, the Secretary is to have regard to:
   • (a) The person’s capacity to comply with the requirements; and
   • (b) The person’s needs.

ISSUE

5. The issue is whether the requirements of the EPP Mr Craven entered into on 11 August 2009 were appropriate.

Were the requirements of the EPP entered into by Mr Craven on 11 August 2009 appropriate?

6. A job capacity Assessment dated 27 June 2008 determined that Mr Craven is capable of working 8-14 hours per week without intervention, and 15-22 hours within two years with intervention. At the hearing Mr Craven spoke of actually working many more hours than that each week. Mr Craven has a passion for flowers and is hoping to establish himself as financially independent by developing a number of profitable floral businesses. He has already established Penny’s flowers, which has been operating for a number of years. His daughter is the sole director and shareholder of that company. She does not live on the Sunshine Coast and has very limited involvement in the day to day activities of the company. Mr Craven does almost all of the work in relation to that business. He spoke of working from day break until midday compiling orders, perhaps doing deliveries. After having lunch and a nap he goes back on the computer from 7pm to midnight. He spends much of this time working to expand Penny’s flowers. So far the business has not made a profit. Mr Craven does take a small wage from the company. Construction was recently completed on a cold room which has helped Penny’s flowers expand by being able to take on more orders. As a result, Mr Craven was able to increase his payment for time worked for Penny’s flowers from 5 hours to 8 hours.
7. Mr Craven is also developing another company ‘Flower Barrow’, which he hopes will one day make him financially independent. When operational, that company will act as a wholesale supplier of flowers to florists.
8. Mr Craven has two basic objections to the requirements of the EPP dated August 2009. Firstly, he considers that he should not have been required to seek work or participate in voluntary work in addition to the time he spends on his private pursuits within the florist industry. His reasons for this were multiple.
9. Prior to legislative changes introduced on 1 July 2009, newstart recipients were required to enter into Activity Agreements, the precursor of EPPs. Mr Craven told me that under previous Activity Agreements his self assisted employment development activities have been taken into consideration as time working or seeking work, and he therefore was not required to engage in any additional job seeking or voluntary employment. He believes the EPP should have been of a similar nature. He in fact presumed that it was and did not fully understand his obligations until some time after he signed the EPP. He believes it is not ‘reasonable’ for the terms to have been changed in these circumstances. Mr Craven said that working three hours a week for charity would effectively prevent him from completing any other work on that day. He said that this is because he suffers from depression, and is unable to cope with the disruption that voluntary work would introduce into his day.
10. Social security legislation regularly undergoes amendments and changes to reflect the ever changing social needs and government policies in this country. The terms of the EPP were more disagreeable to Mr Craven than those included in the previous Activity Agreements. However, the fact that Mr Craven has entered into a number of former agreements which he regards as more suitable to his needs, does not stop the government from changing requirements when regarded as necessary or appropriate.
11. The Commonwealth Government Guide to Social Security Law (the Guide) is not binding on the Tribunal however it will usually be followed for the sake of consistency unless there are clear reasons for departing from that guide[1]. At 3.2.8.30 the Guide states:

An EPP must meet the needs of an individual job seeker and not place unreasonable demands on the job seeker, having regard to the job seeker's personal circumstances. Care should be taken when negotiating activities for job seekers with a limited or partial capacity to meet their activity test requirements, for example due to health issues or family/caring responsibilities, to ensure that the job seeker not only has the capacity to meet each individual term (activity), but the sum total of the terms in the EPP.

And

A job seeker can suggest activities that they may like to undertake. However, the delegate, in accordance with relevant guidelines, will determine if these activities are suitable and whether they will be included in the job seeker's EPP.

12. There is no medical evidence to support Mr Craven’s contentions that he would be incapacitated for one whole day if required to work for three hours. However, even if there had been evidence which pointed to Mr Craven being unable to pursue his private interests for the remainder of a day after working three hours, I would not consider that a sufficient reason not to include the requirement in the EPP. Mr Craven’s needs must be objectively assessed, not subjectively. He still could continue to pursue his private work for the remaining six days a week. Requiring Mr Craven to work an additional three hours a week was certainly not beyond his capacity, as he admits to having been working for considerably more hours every week. I do not accept that Mr Craven’s potential to develop his enterprises would have been significantly compromised by working an additional three hours a week outside of the home. The legislation requires the Secretary to consider the persons’ needs, it does not require that the Secretary only approve requirements that are tailor made to best maximise the subjective needs of an individual.
13. Mr Craven also considers that the requirement that he search for work was inappropriate because he is 62 years old and has no realistic prospects of being offered work. I consider that the terms of the EPP did take this into consideration. Mr Craven was required to undertake either three additional hours of paid work or three hours of voluntary work. Mr Craven’s age would not have precluded him from participating in voluntary work.
14. Mr Craven also referred me to the decision of the full Federal Court in the matter of Mark Spencer v Secretary, Department of Social Security [1998] FCA 445, which he said was authority for his proposition that his work on the internet developing Penny’s flowers was effectively full time work, so the requirement in the EPP that he perform eight hours a week was unnecessary and inappropriate. That decision refers to a now repealed section of the Act and involved circumstances very different to this case. In Spencer, the applicant was precluded from participating in any work because his time was completely taken whilst running for Parliament during a relatively short period, an election campaign. By contrast Mr Craven has spent years developing his businesses, and I do not accept that his chance of success in the florist industry would be significantly detrimentally affected by a small reduction in the hours he commits to it.
15. Mr Craven’s second objection in relation to the terms of the EPP was to the requirement of a fortnightly attendance at Salvation Army Employment Plus. He contends that he should have been required to attend a Centrelink office. He said that the Salvation Army showed no interest in what he was doing and did not assist him with his self employment aspirations. He contended that his time was better spent developing potential employment opportunities through his work with Penny’s flowers. The delegation by Centrelink to Salvation Army is a matter for Centrelink. There is no obligation for Centrelink to provide a choice of employment service providers. Mr Craven may be right when he claims visiting the Salvation Army was not a productive use of his time. However, in considering the terms of the EPP, the Secretary is not limited to having regard only to those matters itemised in s 606(3) of the Act. The Secretary must also consider the needs of society, which requires that an appropriate expenditure of public money be spent on social security benefits. It is reasonable to expect that part of that monitoring will include the requirement that recipients of newstart allowance attend regular appointments to ensure they remain qualified.
16. For the reasons given above, I conclude that the requirements set out in the EPP dated 11 August 2009 were entirely appropriate. Mr Guthrie, after the hearing had concluded, made further submissions relating to the limitations of the Tribunal’s powers to set aside decisions under s 606 of the Act. As I have decided to affirm the decision, I have not addressed those submissions.
17. I affirm the decision under review.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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

Kate Slack, Research Associate

Date/s of Hearing 18 May 2010

Date of Decision 18 June 2010

Applicant was self-represented

Solicitor for the Respondent Joe Guthrie, departmental advocate

---

[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.