Snowden and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 87 (11 February 2011)

Last Updated: 14 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 87

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4271

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LEANNE SNOWDEN

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member Dr K S Levy RFD

Date 11 February 2011

Place Brisbane

Decision

The decision of the SSAT is affirmed. In implementing the decision, the Secretary might take account of the Tribunal’s comments about the relevance of the Secretary initiating an assessment under s 42Q(1A) of the Act. ..................[Sgd]............................ Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Newstart allowance – Failure by applicant to accept offer of suitable employment – No reasonable excuse for failing to accept offer of suitable employment – Applicant subject to serious failure period - Decision under review affirmed

Social Security Act 1991 (Cth) ss 593, 601

Social Security (Administration) Act 1999 (Cth) ss 42N, 42NC, 42P, 42Q, 42R

REASONS FOR DECISION

11 February 2011

Senior Member Dr K S Levy RFD

INTRODUCTION

1. The applicant, Leanne Snowden, has applied for review of a decision of the Social Security Appeals Tribunal (SSAT) which decided that the applicant was subject to a serious failure period of eight weeks commencing 22 May 2010. The effect of that decision was to disentitle her to the payment of Newstart Allowance for eight weeks. An earlier decision of a Centrelink Authorised Review Officer (ARO) dated 30 June 2010 had also found that the applicant had committed a serious failure for which there was no reasonable excuse.
2. Ms Snowden now appeals to this Tribunal from the decision of the SSAT.

ISSUES

3. The issues to be determined by this Tribunal are:
   1. Did the applicant fail to accept a suitable position with the Grafton Transit Centre;
   2. If so, was there a reasonable excuse for failing to accept the position offered; and
   3. If the answer to the second issue is ‘no’, should a serious failure period apply to Ms Snowden’s entitlement to Newstart Allowance; and
   4. If the answer to the third issue is ‘yes’, is there a basis for ceasing the serious failure period earlier than 8 weeks?

EVIDENCE

4. The applicant failed to appear at the hearing of the Tribunal nor did she give evidence by telephone, as was expected. The Tribunal made three attempts in the first 30 minutes of the hearing to contact Ms Snowden but her phone failed to answer. Mr Hamilton, for the respondent, informed the Tribunal that a pattern had developed when trying to contact the applicant whereby she either does not answer her phone or if it is answered, she quickly says that she has to hang up and will call back. Her phone never answers on attempts to re-call her within a reasonable period thereafter.
5. The facts of this matter are that the applicant was offered a position as a cook at the Grafton Transit Centre, with an employer for whom she had previously worked. She was offered both a position and a starting date. The applicant agreed to accept the position, but on the starting day she phoned the employer to explain that she had sores on her arms, and a medical certificate to that effect, and that she should not work near food. The employer agreed to a later starting date, yet all subsequent attempts by the employer to contact Ms Snowden were frustrated. The employer subsequently determined that he could not continue to make the position available to her.
6. There is evidence that Ms Snowden has a medical certificate to justify her claim as to her inability to take up the offered position at the agreed date or within a reasonable time thereafter. There is also evidence that she informed Centrelink about her inability to work and had provided the medical certificate which was, on her account, photocopied by an officer of Centrelink and the original returned to her. Centrelink now says there is no record of such a copy. Any subsequent requests to have her provide Centrelink with a copy of the medical certificate or to sight the original, have not been satisfied by Ms Snowden.
7. The documentary evidence shows that the applicant had undertaken to abide by an Employment Pathway Plan on 15 April 2010. This document was an undertaking that the applicant would accept any suitable job offered to her. The position offered to her with the Grafton Transit Centre was made on 20 April 2010. The prospective employer, for whom she had previously worked, had agreed to provide her with training, and the proximity of the employment to her place of residence required only ten minutes travel.
8. Ms Snowden had agreed with the employer that she would commence work, subject to seeing a doctor about sores on her arms. The next day, 21 April 2010, the employer and Ms Snowden further agreed that the commencing date of employment should be 26 April 2010. She did not attend work on that date or at any time following that date with the employer. Despite a number of attempts, the employer was unable to contact Ms Snowden.
9. Centrelink determined on 18 May 2010 that the applicant had committed a serious failure under s 42N of the Social Security Act 1991 (the Act). She was advised by notification on 19 May 2010, that her Newstart Allowance would cease for an 8 week period from 22 May 2010 to 16 July 2010. She applied for review of that decision on 4 June 2010 and the ARO decision was made on 30 June 2010 affirming the original decision. The SSAT affirmed the original decision. Ms Snowden had been granted a continuation of her Newstart Allowance pending the outcome of her application for review in this Tribunal.

THE RELEVANT LEGISLATION

10. Section 593 of the Act provides that a person is qualified for Newstart Allowance if that person satisfies the Secretary that he or she is unemployed throughout a particular period and either satisfies the “Activity Test” or, alternatively, that he or she is not required to satisfy the “Activity Test”.
11. Section 601 explains the Activity Test. In s 601(1), it states that the applicant satisfies the Activity Test if she is “actively seeking and willing to undertake paid work”. That requirement is qualified in that she is not required to undertake work which is “unsuitable”. Section 601(2A) defines “unsuitable” work, which is deemed to exist:

“if and only if ...
(a) the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or
(b) it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed”.

12. Relevantly, a number of sections of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) must also be considered. These are as follows:

SECTION 42N
Serious failure for refusing or failing to accept an offer of suitable employment
(1) The Secretary may determine that a person commits a serious failure if:
(a) the person is receiving a participation payment; and
(b) the person refuses or fails to accept an offer of suitable employment.
Note: A participation payment is not payable for 8 weeks for a serious failure (see section 42P).
(2) Despite subsection (1), the Secretary must not determine that a person commits a serious failure under that subsection if the person satisfies the Secretary that the person has a reasonable excuse for the failure.
Note: The Secretary must take certain matters into account for the purposes of subsection (2) (see section 42U).

SECTION 42NC
Determination about serious failure requirements and severe financial hardship
If the Secretary determines that a person commits a serious failure, the Secretary must also determine that this section applies unless the Secretary is satisfied that:
(a) the person does not have the capacity to undertake any serious failure requirement; and
(b) serving the serious failure period would cause the person to be in severe financial hardship.

SECTION 42P
Consequences of serious failure
Participation payment not payable during serious failure period
(1) If the Secretary determines that a person commits a serious failure and has determined that section 42NC applies, a participation payment is not payable to the person during the person's serious failure period.
Note 1:       The Secretary may end a serious failure period under section 42Q or determine that a participation payment is payable, despite this section, under section 42R.
Note 2:       The Secretary may continue the participation payment pending the outcome of an application for review (see sections 131 and 145 of the Administration Act).
(2) The person's serious failure period is the period:
(a) beginning on the first day of the first instalment period that begins after the day the Secretary makes the determination; and
(b) ending:
(i) if the Secretary ends the person's serious failure period under section 42Q – on the day mentioned in that section; or
(ii) otherwise – 8 weeks after the period begins.
Note:          For the day the Secretary makes the determination, see section 42Y.
Serious failure requirements
(3) If the Secretary determines that a person commits a serious failure, then the Secretary may require the person to comply with a requirement (the serious failure requirement).
Note:          A person who complies with a serious failure requirement may have his or her serious failure period end under section 42Q. A person who fails to comply with a serious failure requirement may commit a no show no pay failure under section 42C.

SECTION 42Q
Ending serious failure periods

(1) The Secretary may end a person’s serious failure period if:

(a) the person begins to comply with a serious failure requirement imposed on the person; or
(b) the Secretary determines that:
(i) the person does not have the capacity to undertake any serious failure requirements; and
(ii) serving the serious failure period would cause the person to be in severe financial hardship.
Note: For in severe financial hardship see subsection 14A(7) of the 1991 Act.
(1A) The Secretary may make a determination under paragraph (1)(b) on request or on his own or her own initiative.
...

SECTION 42R
Determining that participation payments payable
(1) The Secretary may determine that, despite a person's serious failure period, a participation payment is payable to the person during the period mentioned in subsection (2) if the person informs the Secretary that the person intends to comply with a serious failure requirement imposed on the person.
...

13. Under s 42U(1) of the Act, it is mandatory for the Secretary to take into account matters which are provided for by subordinate legislation when considering whether there is a reasonable excuse for, inter alia, a serious failure on the part of a person.
14. A subordinate legislative instrument has been approved under s 42U(1) of the Administration Act entitled Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No.1). Under paragraph 5 of that Determination, the matters which the Secretary is obliged to take into account in determining whether a person had a reasonable excuse for a serious failure, are contained in paragraph 5(2) of the Determination. These are:

(a) That the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure; and
(b) The literacy and language skills of the person; and
Example for paragraph (b)
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is mostly likely to comprehend.
(c) an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature; and
(d) a cognitive or neurological impairment of the person; and
(e) a psychiatric or psychological impairment or mental illness of the person;
...

CONSIDERATION

15. I have taken account of all of the documentary and oral evidence presented to the Tribunal. At the outset, it is important to note the context in which this application was heard. At the start of the hearing, there seemed no logical reason why the applicant would not present evidence given that she had lodged an appeal and because claimed to have a doctor’s certificate for the alleged serious failure period. I did raise with the respondent’s advocate whether in fact she may have a mental health condition as, from his description of her behaviour pattern, she appeared to be avoidant, and unusually so. Mr Hamilton indicated that perhaps she should be in “stream 3” whereas she is presently in “stream 4” and if she was so categorised, that would overcome her present disability and the need to satisfy the legal requirements for Newstart Allowance. Mr Hamilton also told the Tribunal that there is a suspicion that Ms Snowden may have a mental health issue and further discussion with her may reveal that granting her disability support pension is justified. Those discussions have not been possible as Ms Snowden has not made herself available for the matter to be clarified. The medical certificate which Ms Snowden claimed to have may be all that is required to overcome the present suspicions, both for this Tribunal and it appears, for Centrelink. However, a suspicion is not evidence and the Tribunal can only make a decision based on how well the evidence meets the legislative requirements.
16. I now deal with the four issues to be determined by the Tribunal in determining how the evidence satisfies the various legislative requirements.

Issue 1 - Has the applicant failed to accept a suitable job offer with the Grafton Transit Centre?

17. Qualification for Newstart Allowance under s 593 requires satisfaction of the Activity Test in s 601. It is the applicant’s responsibility to satisfy Centrelink that the Activity Test is satisfied; that is, she is actively seeking and willing to undertake paid work in Australia other than work that is unsuitable for her. Work will be unsuitable as contained in s 601(2A) only if she lacks skills, experience or qualifications or there is medical evidence that she has an illness, disability or injury that will be aggravated by the conditions in which the proposed work will be performed. On the evidence before me, the requirement of lacking particular skills, experience or qualifications s 601(2A)(a) is not satisfied. There is evidence to show that she has worked as a cook previously and for the same employer. There was a suggestion that the employer would also provide training. If the applicant has any lack of skills or experience, the evidence presented implied that training to bridge any gap in such skills or experience was being offered by the employer.
18. In relation to whether the applicant failed to accept a suitable job offer, I make the following findings of fact:

(1) Ms Snowden was offered a position as a cook at the Grafton Transit Centre.

(2) Despite agreement and negotiations with the proposed employer, she did not commence that employment.

(3) The applicant took no initiative to contact the employer to explain any extenuating circumstances beyond the original condition of sores on her arm and deferred the starting date approximately five days after her agreement with the employer.

(4) The applicant had previous experience as a cook and had previously worked for the same employer. The fact that the employer had agreed to re-employ her and she had agreed to commence work with that employer on a second occasion does not provide any indication why there would be any justification for Ms Snowden not to commence employment.

19. I merely reiterate here that there is some serious suspicion both by the Tribunal and it appears, by Centrelink, that Ms Snowden may have some anxiety or other psychological condition which may be clinically significant and which possibly should be taken into account in assessing her appeal. However, her non-contact with the Centrelink Officers and her non-contact with this Tribunal on the date of the hearing places a severe restriction on assessing the utility of that evidence.
20. Therefore, based on the facts available, I must find as a matter of fact, that Ms Snowden failed to accept a suitable job offer made as part of the Employment Pathway Plan. She has therefore committed “a serious failure” under s 42N(1).

Issue 2 - Was there a reasonable excuse for failing to accept the position offered?

21. Section 42N(1) provides that the Secretary may determine that the applicant has committed “a serious failure” as she is receiving a participation payment and has failed to accept an offer of employment. However, the Secretary must not make a determination that a person commits a serious failure under s 42N(1) if the person has a “reasonable excuse” (s 42N(2)). An assessment of whether there is a reasonable excuse requires consideration of mandatory criteria provided for under s 42U(1)(d). The criteria are set out in a subordinate legislative instrument under s 42U, entitled the Reasonable Excuse Determination 2009 (No.1). Section 42U(2) provides that, to avoid doubt, the Secretary is not limited in terms of the information which can be taken into account for this assessment.
22. The answer to this issue is to be found in paragraph 5(2) of the Reasonable Excuse Determination 2009 (No.1). There was no evidence presented to this Tribunal, nor has there been any previous suggestion, that Ms Snowden did not have access to safe, secure and adequate housing or that there was any literacy or language skill deficiency. Therefore sub paragraphs 2(a) and 2(b) are not satisfied. Sub-paragraphs 2(c), 2(d) and 2(e) refer to an illness, a cognitive or neurological deficiency or a psychiatric or psychological impairment or mental illness. As referred to earlier, there is a suspicion, but no substantive evidence, that the applicant suffers from a condition which might be so categorised.
23. Alternatively, medical evidence is required. There is a suggestion that medical evidence exists showing that she had a condition or infection on her arms which may have made it unsuitable for her to have commenced work at the Grafton Transit Centre on the date agreed with the employer. That evidence is not held by Centrelink. Mr Hamilton told the Tribunal that Centrelink records indicate that she had told Departmental officers that she still had the original medical certificate. She has not presented that certificate to the Tribunal, which may have provided a resolution to the matter. Whether the medical certificate is sufficient evidence to show that her condition “would be aggravated by the circumstances in which the work would be performed” (s 601(2A)(b)), cannot be determined.
24. Therefore, there is no medical evidence, or at the least no sufficient medical evidence available to the Tribunal, to establish that one of the statutory conditions is met to conclude that the work offered was “unsuitable”.
25. While Centrelink is undoubtedly not resourced to try to arrange an assessment in every case where there is a suspicion of mental health issues, it may be more efficient in the short to medium term for some effort to be made to determine whether that suspicion is justified in the case of Ms Snowden. That is not something the Tribunal can resolve. At the present time, Ms Snowden has not presented any evidence and Centrelink has not been in a position to make any further assessments as to whether a more empathetic decision might be appropriate. Therefore, there is no reasonable excuse for failing to commence employment as required under the Act, taking account of the mandatory requirements in accordance with the Reasonable Excuse Determination (2009)(No.1) and s 42N(2).

Issue 3 – Does a serious failure period apply to the applicant’s entitlement to Newstart Allowance?

26. I found that the facts show that no reasonable excuse has been shown for failure to commence the employment offered. Equally, there is no evidence of incapacity to undertake a serious failure requirement or that the applicant would be in severe financial hardship if she had to serve the serious failure period (s 42NC). That conclusion rests on the basis that there has been no evidence available to make an assessment despite the suspicion mentioned earlier. On the evidence available, a serious failure period must be imposed (s 42NC). Therefore, a participation payment is not payable to Ms Snowden for the duration of a ‘serious failure period’ (s 42P(1)). The serious failure period commences on the first day of the first instalment period after the Secretary has made a determination. That date has already been determined but is now in abeyance as a result of the applicant’s appeals to the SSAT and to this Tribunal. If the period is revived, it will end eight weeks after the period begins (s 42P(2)(b)(ii)). Alternatively, the ending date of the serious failure period can be a date which is affected by action the Secretary can take under s 42Q. This is discussed under Issue 4.
27. The answer to Issue 3 must be that, based on the evidence, a serious failure period applies to the applicant’s Newstart Allowance.

Issue 4 – Is there any basis for early cessation of the serious failure period?

28. The Secretary can require compliance with a serious failure requirement under s 42P(3). If the Secretary determines that the applicant is to comply with a serious failure requirement, there are three ways in which a serious failure period may end early. These are:

(i) if the person begins to comply with the serious failure requirement (s 42Q (1)(a));

(ii) where the Secretary determines that the person does not have the capacity to undertake a serious failure requirement and also that the serious failure period would cause the person to be in severe financial hardship (s 42Q(1)(b));

(iii) if the Secretary imposes a serious failure requirement, where the person informs the Secretary that the person intends to comply with a serious failure requirement (s 42R).

In those cases a participation payment can continue to be paid to the person.

29. In the ordinary course of events, there is an expectation that social security payments will not be made without justification. Equally, however, recent amendments to the current legislation demonstrate a greater degree of support than previously, for members of the community who are in genuine need. If the present evidence did not include a real suspicion of the applicant having a mental health condition, the answer to this issue would simply be that a participation payment is not payable for an 8 week period (as was found by the original decision maker and by the SSAT). Since the time of the original decision, it seems that additional information has affected Centrelink’s judgment about the applicant and that Ms Snowden potentially has a condition or illness. Owing to her non-appearance at the hearing, there was no evidence presented to the Tribunal. However, there is a statutory power for the Secretary to make a determination of his or her own initiative that the person does not have capacity to undertake such a requirement (s 42Q(1A)).
30. It seems to me, therefore, that an appropriate course to resolve the fourth issue is, in addition to determining the legal question, to recommend to the Secretary under s 42Q(1A) that prior to implementation of the decision it might be determined whether Ms Snowden would have the capacity to undertake a serious failure requirement and would also be in severe financial hardship under s 42Q(1)(b).
31. In the course of finalising the decision, a Telephone Directions Hearing was arranged for 9 February 2011 to ascertain whether all or any of the serious failure period had already been served. Ms Snowden answered her phone but, just as Centrelink had informed the Tribunal at the hearing, Ms Snowden asked if we would call her back in 20 minutes as she was at a doctor’s appointment. The subsequent calls were not answered by Ms Snowden. Mr Hamilton then provided information requested of the Tribunal at the Telephone Directions Hearing. I find that there is no basis for early cessation of the eight-week serious failure period.

CONCLUSION

32. I determine the issues as follows:

(1) The applicant failed to accept a suitable job offer with Grafton Transit Centre;

(2) The applicant does not have a reasonable excuse for failing to do so;

(3) A serious failure period applies to the applicants Newstart Allowance; and

(4) There is no basis for early cessation of the eight-week serious failure period.

(5) The decision of the SSAT is affirmed. In implementing the decision, the Secretary might take account of the Tribunal’s comments about the relevance of the Secretary initiating an assessment under s 42Q(1A) of the Act.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD

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

Associate

Date/s of Hearing 15 December 2010

Date of Decision 11 February 2011

Applicant did not appear

Solicitor for the Respondent Robert Hamilton, Departmental Advocate