Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 109
ADMINISTRATIVE APPEALS TRIBUNAL	)
	)	No  2009/4663
GENERAL  ADMINISTRATIVE  DIVISION	)	
	Re	AARON HEATHCOTE	
	Applicant
	And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS	
	Respondent
DECISION
Tribunal	Mr John Handley, Senior Member 	
Date	12 February 2010
Place	Melbourne 
Decision	The decision of the Social Security Appeals Tribunal made on 14 September 2009 is affirmed.	
	(sgd) John Handley
	Senior Member

SOCIAL SECURITY – applicant in receipt of newstart allowance – four participation failures within a 12 month period – whether the two consecutive eight week non payment periods imposed are permitted – proof of valid delegation of Employment Services Providers and delegation of employees as officers – whether applicant had a reasonable excuse – decision affirmed
Administrative Appeals Tribunal Act (Cth) s 34J, 42A (2)
Social Security Act 1991 (Cth) s 23 (1), s 605, s 629,s 624 (1), (2), (2A) and (2B)
Social Security (Administration) Act 1999 (Cth) s 63, s 64, 234 (1)
Social Security (Reasonable Excuse) (DEEWR) Determination 2006
Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268
Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115
Re Lanza and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 891
Re Odeh and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 3
Re Kronen and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 265

REASONS FOR DECISION

12 February 2010		Mr John Handley, Senior Member 	

1.	The applicant has applied for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 14 September 2009.  The SSAT affirmed two decisions made by an Authorised Review Officer (ARO) of Centrelink on 6 February 2009 and 25 March 2009 to apply an eight week non payment period due to participation failures.  That is to say, two decisions have been made each imposing an eight week non payment period.
2.	The hearing of this application was listed on 16 December 2009.  The applicant did not appear.  I was satisfied that he had been properly notified of the hearing date.  I decided not to dismiss the application for his failure to appear pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) because a number of documents which I would have needed to consider were absent.  I also requested submissions with respect to the lawful power to impose multiple eight week non payment periods.
3.	The absent documents were copies of activity agreements bearing the signature of the applicant.  The respondent alleged that these agreements were breached which gave rise to the participation failures.  Additionally, there was an absence of documented proof of the authority of the relevant Employment Services Providers (ESPs) and their officers to enter into agreements with the applicant.  That is to say, there was an absence of proof of a lawful or valid delegation concerning the appointment of the applicable ESPs and their employees (refer Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115).
4.	On 25 January 2010 an officer of Centrelink filed the above documents.
5.	On the same date, a submission was filed with respect to the lawful authority to impose multiple non payment periods, each of eight weeks duration.
Employment Services Providers
6.	For reasons which will emerge below, the applicant entered into four activity agreements.  Two agreements were executed by him with an officer of Sarina Russo Job Access (Australia) Pty Ltd (Sarina Russo) and two agreements were executed by him with officers of Try Youth and Community Services Inc (Try Youth).  The documents filed by Centrelink on 25 January 2010 indicate that Sarina Russo entered into a contract with the Commonwealth of Australia on 3 May 2006 to provide services for a three year period, expiring on 30 June 2009.  Try Youth entered into a similar contract with the Commonwealth of Australia on 11 May 2006 for an equivalent period.  Sarina Russo and Try Youth are each an ESP providing services under, and by the authority of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
7.	The employees of each of the employment service providers are officers within the meaning of s 23(1) of the Act.  By the documents filed on 25 January 2010, I am satisfied that they were lawfully delegated pursuant to s 234(1) of the Administration Act pursuant to delegations made in June 2007 (SSL 9/2007) and June 2008 (SSL 3/2008).
Activity agreements and participation failures
8.	The relevant activity agreements were signed by the applicant and a delegated officer of the ESP.
9.	The first agreement was executed on 26 May 2008.  One of the terms of the agreement was for the applicant to attend an appointment with Sarina Russo on 3 June 2008.  The applicant did not attend that appointment.  When an enquiry was made of the applicant for his failure to attend, he advised that he slept in and he missed the bus.  It was subsequently decided that the applicant did not have a reasonable excuse and a participation failure was recorded.
10.	The second activity agreement was executed on 13 October 2008.  It also contained a term requiring the applicant to attend an appointment when arranged.  An appointment was arranged for him to attend the ESP on 30 October 2008 but he did not attend.  An enquiry later made of him disclosed that he had been temporarily employed by a recruitment agency and he would provide documented confirmation of his employment.  Documentation was never provided and it was later decided that the failure to attend the appointment was without reasonable excuse and another participation failure was recorded.  The applicant was advised of the participation failure on 11 November 2008.
11.	The third activity agreement was executed on 22 December 2008.  It contained a term requiring the applicant to participate in a work for the dole initiative between 23 December 2008 and 19 April 2009.  The applicant did not commence the program.  A subsequent enquiry of him indicated that he had been ill with stomach, diarreah (sic).  He was asked to provide medical certificates which were never provided.  It was decided the applicant had committed a participation failure without reasonable excuse.  He was advised that having committed three participation failures in a 12 month period, his newstart allowance would be suspended for a period of eight weeks.
12.	The fourth participation failure was also imposed under the activity agreement dated 22 December 2008 which contained another provision compelling the applicant to attend an interview as and when required.  He was notified of a requirement to attend such an interview on 6 February 2009 but he did not attend.  On a subsequent enquiry of him, it is recorded that the applicant had requested that his interview be booked for 9 February 2009, in lieu of 6 February 2009, because he lost his licence.  It was decided that the failure to attend the appointment on 6 February 2009 was without reasonable excuse and a participation failure was recorded.  It was noted that the applicant had committed four participation failures in a 12 month period and another decision was made to deny him newstart payments for a further eight week period.
Legislation
13.	Section 629 of the Act, as it applied prior to 1 July 2009, provided that newstart allowance is not payable to a person for a period of eight weeks if a newstart participation failure is committed on three occasions during a 12 month period.  A newstart participation failure arises out of the failure by a newstart recipient to honour his or her obligations under a newstart activity agreement, into which the respondent may compel a person to enter pursuant to s 605 of the Act.
14.	Having examined the documents lodged by Centrelink pursuant to s 37 of the AAT Act and the documents filed on 25 January 2010, I am satisfied that at all relevant times the applicant had been notified pursuant to s 63 and 64 of the Administration Act of his obligations under the activity agreements.  Having regard to the notes annexed to each activity agreement, I am also satisfied that the applicant was notified that a failure to comply with a requirement under an activity agreement may result in a newstart participation failure being recorded (refer s 624(1) of the Act).  
15.	Pursuant to s 624(2), (2A) and (2B) of the Act and the Social Security (Reasonable Excuse) (DEEWR) Determination 2006, I am not satisfied that the explanations given by the applicant for his failure to comply with activity agreements on each of the four occasions amount to a reasonable excuse (refer s 624(2B) of the Act).
16.	The explanations given by the applicant for his failure to comply with the terms of the activity agreements were having slept in, failing to provide documented proof of employment, illness and loss of licence.  Sleeping in of itself is not, in the absence of any other explanation, a reasonable excuse.  Documented proof of employment and illness would be readily and easily obtained.  It was not.  Loss of motor car licence does not amount to reasonable excuse especially when it would appear that public transport was available to the applicant as evidenced by the other explanation given that having slept in, he missed the bus (refer T4).
Multiple non payment periods
17.	The respondent imposed two eight week non payment periods arising out of the four participation failures.  The first eight week period arose out of the failures committed on 3 June, 30 October and 23 December 2008.  The second eight week period arose out of failures committed on 30 October and 23 December 2008 and 6 February 2009.
18.	As may be seen by the above, the participation failures on 30 October 2008 and 23 December 2008 have been considered twice in deciding that the applicant serve two, eight week non payment periods.  
19.	The written submissions lodged on 25 January 2010 include a reference to s 629 of the Act which provides that newstart allowance is not payable for a period of eight weeks if there are three participation failures in a 12 month period.  More precisely, the legislation records that the 12 month period commences from the date of the first participation failure.  Accordingly, if there are two subsequent participation failures within that same 12 month period, three failures in total have been committed and the entitlement to deny payment for a period of eight weeks exists by force of s 629.
20.	It was submitted that the Tribunal has made findings with respect to this issue on three occasions, each of which upheld the contentions of the respondent (refer Re Odeh and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 3, Re Kronen and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 265 and Re Lanza and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 891.
21.	More specifically, the decision in Re Kronen was the subject of a Federal Court Appeal (refer Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268).  Although the decision was primarily concerned with the issue of the negotiation of terms of an activity agreement, Finn J was aware that there were three non payment periods by reason of multiple participation failures.  His Honour noted that the Tribunal had made a finding of repeated failures on the part of the applicant to enter into activity agreements and he did not discern any error of law infecting the cancellation decision . . . (at [49 – 56]).  The Appellant sought leave to appeal that decision to a Full Federal Court, however, his application was denied by Mansfield J on 23 December 2009.  His Honour noted that there had been multiple eight week non payment periods imposed initially by Centrelink and subsequently affirmed by the AAT (at [7]).  His Honour dismissed the application and concluded that he agreed with the decision of Finn J that there was no arguable error of law.
Conclusion
22.	As indicated above, the applicant did not attend the hearing of this matter on 16 December 2009.  A letter was then forwarded to him indicating that I adjourned the hearing pending receipt of further information from the respondent with respect to the matters referred to in paragraph 3 above.  I indicated that when copies of those documents were provided, they would be forwarded to him and he would be invited to make submissions.  (The documents were posted to the applicant on 27 January 2010).  I also requested that he advise the Tribunal whether he would prefer the matter to be relisted for hearing or have the matter proceed on the papers pursuant to s 34J of the AAT Act.
23.	All of the information made available by the respondent and attached to its letter of 25 November 2009 was forwarded to the applicant on 27 January 2010.  He was asked to respond to the letter of 27 January 2010 within 7 days.  He has not responded.  The letters were posted to his last known address and they have not been returned.
24.	In all of the circumstances, I am satisfied that the applicant has had adequate opportunity to respond to the correspondence forwarded to him and pursue his application for review.  He has failed to do so.
25.	For the reasons given above, I am satisfied that the decision under review should be affirmed.
I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision herein of  
Mr John Handley, Senior Member

Signed:	Olympia Sarrinikolaou
	Legal Assistant

Date of Hearing	16 December 2009 
Date of Decision	12 February 2010
Advocate for the Applicant	No Appearance 
Advocate for the Respondent	Mark Hester, Centrelink Legal Services