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The legislation requires that, before Centrelink imposes any penalty, the decision maker must establish whether the job seeker had a reasonable excuse for failing to meet their requirements.
However, if:
then the job seeker cannot be taken to have had a reasonable excuse.
The legislation provides that a reasonable excuse can only be considered a reasonable excuse if the job seeker gives prior notice of it. However, the legislation also provides that this does not apply if the decision maker is satisfied that, in the circumstances, it would not have been reasonable to expect a job seeker to give such prior notice. This provision gives decision makers the discretion to waive a job seeker's requirement to give prior notice of non-attendance in any circumstance where they believe it was unreasonable to expect the job seeker to have done so.
The following are examples of some circumstances in which it would be unreasonable to expect the job seeker to have given advance notice of their inability to attend:
It is important to note that, even though a job seeker may have been physically able to give advance notice, it may still not have been reasonable to expect them to have done so. For example, a parent whose child is seriously ill may have access to a phone but it may still be unreasonable to expect them to think of calling their provider or Centrelink.
Even if the job seeker's reason for not attending an appointment or an activity was that they were engaged in another activity at the time which meant that they were fully meeting their requirements (e.g. working) or for which they would normally have been exempt from requirements (e.g. illness), their reason should not necessarily be taken to provide a reasonable excuse for their failure. The circumstances need to be considered on a case by case basis, with the crucial consideration being whether, regardless of the reason for missing the appointment or activity, the job seeker could reasonably have been expected to give prior notice that they would be unable to attend.
Act reference: SS(Admin)Act section 42UA Prior notification of excuse
Assuming that the job seeker gave prior notice when it was reasonable to expect them to have done so, the following considerations may lead the delegate to decide that the job seeker has a reasonable excuse and therefore that no failure should be applied.
The meaning of the term reasonable excuse is discretionary but the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. The failure must not simply be a deliberate act of non-compliance. If the circumstance that prevented the job seeker from meeting their requirement was unforeseeable or outside the person's control, it provides a reasonable excuse. However, this does not necessarily mean that a circumstance that was foreseeable or was within the job seeker's control does not constitute a reasonable excuse.
It is also important to establish that the requirement the job seeker was supposed to undertake was reasonable, was within their capacity and that the job seeker was notified correctly. If a requirement was not within a job seeker's capacity, they have a reasonable excuse for not meeting it. It should also be remembered that, because a job seeker's circumstances can change, a requirement that was reasonable at the time a job seeker entered into their EPP may no longer be reasonable at the time they failed to comply.
When determining if a recipient has a reasonable excuse for failing to meet a requirement, Centrelink must consider the recipient's personal circumstances. For example, a history of homelessness or an episodic mental illness could have been a factor in the recipient's failure to comply. Administrative tools such as the Vulnerability Indicator (placed on a job seeker's computer record) can be useful in alerting delegates to personal circumstances that could potentially explain a job seeker's non-compliance. The delegate should also be alert for any undisclosed personal issues, particularly mental health issues that could have explained the failure. It will not always be the case that, in a particular instance, such issues were a factor, but Centrelink must consider this possibility carefully in every case where such issues are evident.
The factors that, as a minimum, the decision maker must take into account are listed in the Social Security (Reasonable Excuse - Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1). These are:
However, the above list is not exhaustive. When considering reasonable excuse, the decision maker should take into account all factors that may have affected the job seeker's ability to comply. Additional factors to consider could include:
In addition, the decision maker can interpret any factor included in the above list more broadly if the circumstances of the case warrant it. For example, although an immediate family member generally means a person's partner, father, mother, sister, brother or child, in some cases, it could include any person the decision maker believes should be treated as though they were an immediate family member, such as a member of the job seeker's adoptive or foster family (whether or not the fostering arrangement was formal).
On the other hand, any of the above factors may provide a reasonable excuse only if it had a significant effect on the job seeker's capacity to comply with the specific requirement at the time the job seeker failed to comply.
The Acts Interpretation Act 1901 states that a letter correctly addressed and posted is deemed to have been given to the job seeker at the time at which it would normally be delivered by post. However, deemed delivery does not necessarily mean that the job seeker received the letter and the Acts Interpretation Act provisions do not override the reasonable excuse provisions of the SSAct.
Where the job seeker advises that they have not received the notification, the decision maker needs to assess the reasonable excuse before making a decision to apply a failure.
This should include consideration of all of the following:
Even if a notice does meet the requirements of the Acts Interpretations Act 1901, if:
then it would be appropriate to determine that a reasonable excuse applies to the failure to comply.
If a person claims to have been sick and unable to attend a particular activity or appointment then it is preferable that a medical certificate verify the person's illness. However, in some circumstances it will be unreasonable to ask for one. It is common that a short illness such as a cold or virus may not require a visit to the doctor. In many cases, it may be obvious from talking to the person that this is the situation. If a person is ill and advises their employment services provider at the time, the provider can reschedule the interview and should not submit a participation report (unless the provider has reason to doubt the genuineness of the illness). However, the delegate should not accept without question the excuse of illness if the person has a history of missing interviews due to minor unverified illnesses without advising their employment services provider.
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Last reviewed: 1 July 2011
