Arnold, Pamela Lorraine v Secretary of the Department of Employment, Education, Training & Youth Affairs [1998] FCA 1695

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Social security – Newstart allowance – Allowance cancelled – Statutory condition of a "requirement" that recipient of allowance enter into a new Case Management Activity Agreement – Whether notice must use the word "require" or its cognate – Letter of cancellation of allowance recited omissions of applicant – Whether recitals were incorrect. Employment Services Act 1994, ss38 and 44 PAMELA LORRAINE ARNOLD v SECRETARY OF THE DEPARTMENT OF EMPLOYMENT EDUCATION, TRAINING AND YOUTH AFFAIRS NG866 of 1998 WILCOX J SYDNEY 18 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG866 of 1998

BETWEEN: PAMELA LORRAINE ARNOLD

Applicant

AND: SECRETARY OF THE DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

JUDGE: WILCOX J

DATE OF ORDER: 18 DECEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The question of costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG866 of 1998

BETWEEN: PAMELA LORRAINE ARNOLD

Applicant

AND: SECRETARY OF THE DEPARTMENT OF EMPLOYMENT EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

JUDGE: WILCOX J

DATE: 18 DECEMBER 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT WILCOX J: This is an appeal against a decision of the Administrative Appeals Tribunal handed down on 8 July 1998. The Tribunal, constituted by Mr R.P. Handley, Senior Member, dismissed an appeal brought to the Tribunal by Pamela Arnold against the Secretary of the Department of Employment, Education, Training and Youth Affairs. The proceeding before the Tribunal called in question a decision made by a delegate of the Secretary to cancel payment of Newstart allowance to Ms Arnold. The Tribunal decision dealt with a number of matters, both factual and legal. The notice of appeal filed in this Court stated four grounds but I think they raise only two questions. The facts In the latter part of 1995 Ms Arnold was in receipt of a Newstart allowance. This was payable to her pursuant to the Employment Services Act 1994. She had entered into a Case Management Activity Agreement with the Department under that Act. The points raised by Ms Arnold arise out of correspondence sent to her by the Kempsey branch of Employment Assistance Australia. Apparently, Employment Assistance Australia wrote to Ms Arnold about interviews in October 1995. I need not go into the reasons why particular interviews did not occur or what happened in respect of any interviews that did occur. It is sufficient to start with a letter of 30 November 1995, written by Mr Tom Mosley, senior case manager of Employment Assistance Australia at Kempsey. The letter read as follows: "You did not attend your interview on the 27th October 95 to review your Case Management Activity Agreement which is now out of date. I have noted on file that you did phone to cancel this interview with the reason you gave, which was that you said as you had written to the ombudsman that you felt you did not have to attend while the ombudsman's office was investigating your concerns. I have received advice from our Area Office in Newcastle that the reason you gave for not attending does not exempt you from the interview, that you are required to attend this interview under the terms of the Employment Services Act 1994. I also note from our records that you also did not attend your review interview in August with your previous case manager even though you had agreed to this in your previous Case Management Activity Agreement. Your interview has been rebooked for: . EAA 1st Floor, 59 Smith Street, Kempsey (above CES) . 2pm . Friday . 8th December 1995 Under the terms of the Employment Services Act 1994, if you do not attend this interview you will be taken to have unreasonably delayed entering into a Case Management Activity Agreement and your Newstart Allowance will not be paid to you for a period of time and case management services may be withdrawn. You must attend this interview if you do not want your allowance to stop." The interview appointed by this letter did not take place. The reason was that Ms Arnold contacted Employment Assistance Australia and mentioned she was undertaking a valuer's course examination on 8 December. Accordingly, a new appointment was made for 18 December. On 11 December 1995, Mr Mosley sent a further letter to Ms Arnold referring to the new appointment. The letter of 11 December read as follows: "I refer to my previous letter of the 30th November 95 which notified you of your rebooked interview. I have been advised by the CES today that you have advised that you would not be able to attend at this time. The CES further advise that you have agreed that another time of 9.30am on Monday the 18th December 95 would be more convenient for you. The focus of this interview is to complete a Case Management Activity Agreement that adheres to the requirements of the Employment Services Act 1994. During this interview I will also be introducing you to another experienced case manager, Ms Ursula Donohue. Sometimes people find it beneficial to change to another case manager. Therefore after you have signed your agreement at this interview Ms Donohue will be your case manager if you wish to change to another case manager. Your interview has been rebooked for: . EAA lst Floor, 59 Smith Street, Kempsey (above CES) . 9.30am . Monday . 18th December 1995 Under the terms of the Employment Services Act 1994, if you do not attend this interview you will be taken to have unreasonably delayed entering into your Case Management Activity Agreement and your Newstart Allowance will not be paid to you for a period of time and case management services may be withdrawn. You must attend this interview if you do not want your allowance to stop." On the same day the manager of the Kempsey office, Ms J Sproule, wrote a further letter to Ms Arnold, as follows: "I am writing to you in regards to your letter received by this Officer on the 19th of October. This response has taken longer than usual as I had previously looked closely at the handling of your case in response to your letter of the 24th July 1995. I understand that some of the concerns that you have raised have already been addressed. Due to your more recent correspondence the Regional Manager of this Region asked me to review the handling of your case again. I am satisfied that your case has been handled with the utmost consideration of your needs, in terms of the information you have provided us with to date, and the Governments Working Nation Strategies to assist the long term unemployed clients. You have requested to be reinstated to your former Agreement as signed in Tamworth. This can not occur as the Employment Services Act 1994 requires that you have a current Case Management Activity Agreement in place. This new Agreement will focus on helping you obtain skills and qualifications that will help you obtain work. In regard to our phone conversation on 4th December 1995 I confirm that your next case management interview will be at 9.30am on Monday 18th December 1995 so that a current Case Management Activity Agreement can be developed on the suggestions made by your case manager and can include additional activities, if meeting the requirements, as suggested by yourself. Please note that if you feel that there may have been a breakdown in communication between yourself and your case manager, you may choose the services of another case manager. Mr Mosley has suggested that if this is the case then during his interview with you that you will be introduced to another experienced EAA case manager Ms Ursula Donohue. After you complete and sign your agreement at this interview Ms Donohue will be your case manager if you think this change in case manager will be helpful to you. If you have any further questions that have not already been covered by the range of information provided to you to date, please discuss them with your case manager. Please note we can only answer questions that are specific and relate to the process of case management or operation of programs administered by this Office." Ms Arnold did not attend the interview appointed for 18 December. On that date a letter was sent by Ms Sproule in the following terms: "You have recently been contacted on at least two occasions by your Case Manager, requiring you to attend an interview to enter into a new Activity Agreement or review you [sic] current agreement. As you have not responded or attended your Case Manager's office at the specified times, I am satisfied that you have unreasonable [sic] delayed entering into an Agreement with your Case Manager. As required by subsection 44(3) of the Employment Services Act, you are hereby notified that you are taken to have failed to enter into an Activity Agreement. This decision means that: . If you are receiving Job Search/Newstart or Youth Training Allowance, your allowance will not be paid to you for a period of time, or . If you don't receive any of the above allowances, your relationship with your Case Manager has ended and you will not be able to enter the Case Management System again for 26 weeks.