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Brownell; Secretary, Department of Employment, Education, Training and Youth Affairs and [1997] AATA 873 (17 July 1997)

Last Updated: 16 January 2009

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION NO 12037

ADMINISTRATIVE APPEALS TRIBUNAL )
) No V97/321      
GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING & YOUTH AFFAIRS      
Applicant

And DAVID BROWNELL
Respondent

DECISION

Tribunal Mr W.G. McLean, Member

Date 17 July 1997

Place Melbourne     

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 14 February, 1997, and reinstates the decision of the authorised review officer of Department of Employment, Education, Training and Youth Affairs dated 29 November, 1996, to cancel the respondent’s Newstart Allowance because Mr David Brownell failed to comply with the terms of his Case Management Activity Agreement.

(Sgd.) W.G. McLean
Member

CATCHWORDS
NEWSTART ALLOWANCE - Case Management Activity Agreement - Failure to comply - Social Security Appeals Tribunal decision set aside

Employment Services Act 1994 - s38, s45(5), s45(6)

REASONS FOR DECISION

17 July 1997 Mr W.G. McLean, Member

1. The Tribunal considered an application from the Secretary, Department of Employment, Education, Training and Youth Affairs (“DEETYA”) for the review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 14 February, 1997. The SSAT considered decisions made by delegates of DEETYA on 22 November, 1996, and 29 November, 1996, to cancel the newstart allowance paid to Mr David Brownell. The SSAT decided to set aside the decision and send the matter back to DEETYA with directions that Mr Brownell took reasonable steps to comply with the terms of his Case Management Activity Agreement (“CMAA”).
2. At the hearing, Mr T Baker, an advocate of the Department, appeared for the applicant, and Mr David Brownell, the respondent, gave sworn oral evidence in support of his written statement (Exhibit R1). Ms Janet Amanda Creaney, an officer of DEETYA, gave sworn oral evidence on behalf of the applicant.
3. The Tribunal received into evidence the documents (the “T” documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, and a documentary exhibit tendered by the respondent during the hearing.
4. Mr Brownell has been registered as unemployed since 3 April, 1992, and on 24 October, 1996, he entered into a CMAA with DEETYA, in which one of his undertakings was to attend an interview with his Case Manager on 21 November, 1996, at 3.30 pm. Mr Brownell signed the agreement and initialled the undertaking, thereby acknowledging that the terms of the agreement had been negotiated between the Case Manager and himself. He also certified that he understood that if he did not keep to the terms of the agreement, his allowance would be stopped and his participation in the case management system may also be cancelled.
5. Ms Janet Amanda Creaney gave sworn oral evidence on behalf of the applicant. Ms Creaney is employed as a Case Manager for Employment Assistance Australia (“EAA”) at the Commonwealth Employment Service (“CES”) situated at 224 Church Street, Richmond. EAA is separate to CES and is designed to look after the needs of long term, unemployed people and help them get back to work or into work training.
6. Ms Creaney is the Case Manager who negotiated the CMAA with Mr Brownell on 24 October, 1996, and she confirmed that she witnessed the execution and initialling of that document by the respondent. Ms Creaney said that she regarded the CMAA as an important document, as it is the return to work plan that the case management is based upon.
7. At 2.25 pm on 21 November, 1996, the respondent telephoned the CES and left a message for Ms Creaney that he “can’t make it” for his 3.30 pm interview on that day and that he “will call you tomorrow”. Ms Creaney said that she did not speak to Mr Brownell when he telephoned on 21 November, 1996, because she was in a meeting at that time. On 22 November,1996, Ms Creaney telephoned Mr Brownell at 3.00 pm because he had not endeavoured to contact her as promised. She explained to Mr Brownell that she had recommended that he had failed his activity test by not attending the interview on 21 November, 1996.
8. Mr Brownell provided the Tribunal with a written statement (Exhibit R1). The statement indicates that when he mistakenly attended the CES on 20 November, 1996, and spoke to an officer of the CES, he realised that his interview was on the following day.
9. He explained that on the evening of 20 November, 1996, his girlfriend partner, who lives in the country, telephoned him saying that the next day her mother would “give her a lift to the city to pay her HECS and tax return then pick her up afterwards”. His girlfriend was driven by her mother to his flat at 285 Church Street, Richmond, and arrived at approximately 1.00 pm on 21 November, 1996. He indicated that they “were both pushed for time as I had a meeting at 3.30 pm which I intended to go to and also her mother was picking her up after. We needed to resolve our personal problems in the relationship that I take most seriously”.
10. Mr Brownell agreed that his flat at 285 Church Street, Richmond, was very near the CES office at 224 Church Street, Richmond, and that he had to pass the CES office when he and his girlfriend left his flat to go to the city by tram soon after 1.00 pm on 21 November, 1996. Mr Brownell said that he attended his girlfriend’s appointments at both HECS and the Taxation Office and that both appointments took about 20 minutes. He used his girlfriend’s mobile phone to telephone the CES from HECS at 2.25 pm, at which time he left the message that “I can’t make it” for his 3.30 pm appointment with Ms Creaney.
11. Mr Brownell said that he had enough time following the conclusion of his girlfriend’s HECS appointment to keep his CES appointment with Ms Creaney, which he anticipated would take about 10 minutes. Mr Brownell returned to his flat with his girlfriends following her HECS and Taxation Office appointments, and his girlfriend subsequently telephoned her mother, and requested her mother to pick her up.
12. Ms Creaney confirmed that it was reasonable for the respondent to assume that his 3.30 pm interview could be contained to approximately 10 minutes in the prevailing circumstances.
13. The applicant’s contentions are as follows:

(I) Sub-section 45(5)(b) of the Employment Services Act provides that a person is not qualified for ...newstart allowance in respect of a period unless... while the agreement is in force, the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement ...;

(ii) Sub-section 45(6) provides that for the purposes of paragraph (5)(b) a person is taking reasonable steps to comply with the terms of a CMAA unless the person has failed to comply with the terms of the agreement and:
(a) the main reason for failing to comply involved a matter that was within the
person’s control; or
(b) the circumstances that prevented the person from complying were

reasonably foreseeable by the person.

(iii) Mr Brownell failed to comply with the terms of his CMAA;

(iv) The respondent had been advised of his obligations under the CMAA and the consequences of a failure to attend the appointment arranged by his case officer;

(v) Mr Brownell was aware of the appointment and elected not to attend; and

(vi) Mr Brownell’s failure to comply with the terms of the agreement was a deliberate and conscious decision not to attend. There can be no doubt the case manager and Employment Assistance Australia took the agreement very seriously, as Mr Brownell was required to acknowledge each of the conditions of the agreement. Mr Brownell’s wilful disregard of his obligations was clearly a matter that was within his control.

14. The Employment Services Act 1994 provides the following relevant legislation:

“Persons to whom this section applies

38.(1) This section applies to a person who has been referred to a case manager under Part 4.3.

Agreement

38.(2) The person is to have a written agreement with the case manager. The agreement is to be known as a Case Management Activity Agreement. The agreement is to be in a form approved by the Employment Secretary.

Requirement to enter into agreement

38.(3) If the person is not a party to a Case Management Activity Agreement, the Employment Secretary must require the person to enter into such an agreement.

Replacement agreement

38.(4) If the person is already a party to a Case Management Activity Agreement, the Employment Secretary may require the person to enter into another such agreement instead of the existing one.

...

Qualification for job search allowance or newstart allowance

45.(5) The person is not qualified for a job search allowance, a newstart allowance or a youth training allowance in respect of a period unless (in addition to meeting any other requirements set out in the Social Security Act 1991 or Part 8 of the Student and Youth Assistance Act 1973, as the case may be):

(a) when the person is required under section 38 to enter into a Case Management Activity Agreement in relation to the period, the person enters into that agreement; and

(b) while the agreement is in force, the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and

(c) at all times during the period when the person is a party to the agreement, the person is prepared to enter into another such agreement instead of the existing agreement if required to do so under section 38.

Compliance with Case Management Activity Agreement

45.(6) For the purposes of paragraph (5)(b), a person is taking reasonable steps to comply with the terms of a Case Management Activity Agreement unless the person has failed to comply with the terms of the agreement and:

(a) the main reason for failing to comply involved a matter that was within the person's control; or

(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.”

15. In this matter, it is clear from the evidence that the respondent was aware that he was required to attend an interview with Ms Creaney his Case Manager, in accordance with his CMAA, at the Richmond CES office at 3.30 pm on 21 November, 1966. Also, that Mr Brownell decided at 2.25 pm on that day to telephone the CES and leave a message for Ms Creaney that he would not be attending the interview.

16. Section 45(6) of the Act indicates that a person is taking reasonable steps to comply with the terms of a CMAA unless that person has failed to comply with the terms of the agreement and the main reason for failing to comply involved a matter that was within the person’s control or, the circumstances that prevented the person from complying were personally foreseeable by that person.

17. The Tribunal is of the view that Mr Brownell could have attended his interview with Ms Creaney at 3.30 pm on 21 November, 1996, but chose not to do so. The main reason for failing to comply is because he decided to attend his girlfriend’s appointments rather than to keep his 10 minute interview at the CES in accordance with his CMAA. He did not explain to the satisfaction of the Tribunal why he did not request his girlfriend to wait for him at the CES office for 10 minutes so that he could complete his 10 minute interview, as they had to pass the CES Richmond office when they returned from the city to his flat. Accordingly, the Tribunal finds that the main reason for failing to comply with the CMAA involved a matter that was within the respondent’s control.

18. The Tribunal also finds that the circumstances that prevented Mr Brownell from complying with the CMAA were reasonably foreseeable by him. Mr Brownell’s evidence is that following the arrival of his girlfriend at his flat in Richmond at 1.00 pm on 21 November, 1996, he intended to keep his 3.30 pm appointment at the CES with Ms Creaney, and there is no evidence of any circumstances after that time that prevented him complying with the CMAA that were not reasonably foreseeable.

19. The Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 14 February, 1997, and reinstates the decision of the authorised review officer of DEETYA dated 29 November, 1996, to cancel the respondent’s newstart allowance because Mr Brownell failed to comply with the terms of his Case Management Activity Agreement.

I certify that this and the seven (7) preceding pages are a true copy of the decision and reasons for decision herein of

Mr W.G. McLean, Member

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

Date/s of hearing: 3 June 1997
Date of Decision:
Counsel for the Applicant: -
Solicitor for the Applicant: -
Counsel for the Respondent: -
Solicitor for the Respondent: -
Departmental advocate: Mr T. Baker