3.11.15 Reasonable excuse
Under either the targeted compliance framework (3.11.13) or the CDP job seeker compliance framework (3.11.14), before Services Australia imposes any penalty for a job seeker's failure to meet their mutual obligation requirements, the decision maker must establish whether they are satisfied that the job seeker has a reasonable excuse for failing to meet their requirements. While decisions about whether the person accrues a demerit for a mutual obligation failure in the Green or Warning Zones (18.104.22.168) of the targeted compliance framework are not decisions under social security law, and the delegate is not required to assess if a person has a reasonable excuse, delegates are expected to assess whether a demerit should apply using the same principles as those that underpin reasonable excuse decisions.
Note: Under the targeted compliance framework, where job seekers in the Penalty Zone do not consider they have a reasonable excuse for a failure, they are able to accept a penalty without discussing this with Services Australia.
Prior notice of reasonable excuse
However, regardless of any given reason, the job seeker cannot be taken to have a reasonable excuse for not attending an appointment or activity if:
- it was reasonable to expect the job seeker to have given prior notice of the reasonable excuse to the organisation that arranged the appointment or activity, and
- the job seeker failed to do so.
In the same way an employee is expected to give prior notice of any absence where reasonable to do so, the legislation provides that a reason for non-attendance at an appointment or activity (including situations where the job seeker arrived late) can only be considered a reasonable excuse if the job seeker gives prior notice of it. However, the legislation also provides for the decision maker to determine that prior contact did not need to occur 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, i.e. the job seeker also has a reasonable excuse for not making prior contact.
The following are examples of some circumstances in which it would be unreasonable to expect the job seeker to have given prior notice of their inability to attend:
- The job seeker or an immediate or close family member suffered a sudden serious illness or was unexpectedly hospitalised.
- The job seeker lacked access to any means of contacting the provider (e.g. the job seeker did not have access to a phone, had no mobile phone credit, had no way of recharging their credit and was unable to take other suitable steps to contact their provider, such as visiting the office where possible, or using a public phone).
- The job seeker was given notice late in the day to start work early the next morning and there were no arrangements between the job seeker and the provider to notify such an absence out of hours.
It is important to note that, even though a job seeker may have been physically able to give prior 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 Services Australia as relevant.
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) their reason may not necessarily be taken to provide a reasonable excuse for their failure to make prior contact. The circumstances need to be considered on a case by case basis, with the crucial consideration being whether, even if the reason for missing the appointment or activity would otherwise be regarded as reasonable, 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, section 42AJ Reasonable excuses for mutual obligation failures - prior notification required for certain failures
Meaning of reasonable 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 not defined in legislation, but the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. Mutual obligation requirements are designed to prepare job seekers for work and therefore a reasonable excuse should generally also be one that an employer would consider reasonable for an employee who missed work. The job seeker is also required to give prior notice of their inability to attend when it is reasonable to do so, as an employee is expected to.
If the circumstance that prevented the job seeker from meeting their requirement was unforeseeable and outside the person's control, it provides a reasonable excuse. However, this does not necessarily mean that job seekers never have a reasonable excuse due to circumstances that were foreseeable or were within the job seeker's control. For example, if a job seeker is expecting to be admitted to hospital, or is aware they may have unavoidable one-off caring responsibilities on a certain date, both of which are foreseeable and within the job seeker's control, they can be taken to have reasonable excuse so long as they give prior notice of their non-attendance. In such circumstances, the provider would be expected to reschedule the appointment. However, if for some reason the appointment was not rescheduled by the provider and the job seeker failed to attend, this would be a clear example of a job seeker having a reasonable excuse for non-attendance, even though the circumstances that prevented attendance were foreseeable and within the job seeker's control.
It is also important to establish that the requirement the job seeker was supposed to undertake was reasonable and 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 Job Plan 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, Services Australia 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 barriers recorded in the Capability Management Tool (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 domestic violence or 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 Services Australia must consider this possibility carefully in every case where such issues are evident.
Specific factors to consider
The factors that, as a minimum, the decision maker must take into account are listed in the Social Security (Administration) (Reasonable Excuse - Participation Payments) Determination 2018. These are:
- 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
- the literacy and language skills of the person
- an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature
- a cognitive, neurological, psychiatric or psychological impairment or mental illness of the person
- a drug or alcohol dependency of the person (other than in the circumstances described below)
- unforeseen family or caring responsibilities of the person
- that the person was subjected to criminal violence (including domestic violence and/or sexual assault)
- that the person was adversely affected by the death of an immediate family member or close relative, and
- that the person was working in employment that meets minimum applicable terms and standards, or was attending a job interview at the time of the requirement.
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 (with the exception of specific factors that must not be considered, which are discussed further below). Additional factors to consider could include:
- illness of the job seeker's child or someone for whom they have caring responsibilities
- disabilities the person may have (including any requirements as a direct result of the disability such as the need for a carer or personal assistant)
- lack of availability and affordability of transport
- lack of availability of child care, and
- lack of awareness of the requirement (e.g. due to non-receipt of correspondence).
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 and direct effect on the job seeker's capacity to comply with the specific requirement at the time the job seeker failed to comply, and
- the job seeker had given prior notice of the reasonable excuse to the organisation that arranged the appointment or activity if it was reasonable to do so.
Specific factors that must not be considered
As well as factors that, as a minimum, must be considered when determining reasonable excuse, the Social Security (Administration) (Reasonable Excuse - Participation Payments) Determination 2018 also specifies some factors that must NOT be considered in determining reasonable excuse. These are:
- any factor that did not directly prevent the person from meeting their requirement at the time of their failure, and
- drug or alcohol dependency if a job seeker is subject to the targeted compliance framework, has previously used drug or alcohol dependency as a reasonable excuse, and has refused or failed to participate in available treatment.
Drug or alcohol dependency
Some job seekers' drug or alcohol dependency may impact their ability to meet their mutual obligation requirements and may be accepted as a reasonable excuse. However, it is not consistent with community expectations for job seekers to be able to repeatedly use drug or alcohol dependency as a reasonable excuse unless they are doing everything they can to address their barriers and move into work.
From 1 July 2018 job seekers outside of the CDP are unable to repeatedly use drug or alcohol dependency as a reasonable excuse unless they agree to participate in treatment, if available and appropriate. Where job seekers agree to participate in treatment as a voluntary term of their Job Plan, they may be able to reduce or fully meet their mutual obligation requirements.
Where job seekers do not agree to participate in treatment (or fail to participate) they will face no penalty if they continue to meet their other requirements. However, job seekers who refuse or fail to participate in available and appropriate treatment following use of drug or alcohol dependency as a reasonable excuse are unable to use drug or alcohol dependency as a reasonable excuse again.
If appropriate treatment is not available or job seekers are otherwise unable to participate in treatment, job seekers should generally agree to participate if and/or when participation in treatment is possible. While unable to participate in treatment, job seekers will be able to continue to use drug or alcohol dependency as a reasonable excuse if it has a significant and direct impact on their ability to meet their requirements.
Reasonable excuse where no intention to comply exists
A job seeker's intention to comply must be taken into account when assessing a specific personal factor (i.e. limited literacy, substance dependency, homelessness or illness) as a reasonable excuse. For example, a job seeker who has limited literacy should only have that factor taken into account if they are making reasonable efforts to comply (including prior contact) despite the factor. A job seeker who is refusing to comply without good reason, or who is not making any efforts to comply, should not have a reasonable excuse accepted - regardless of any personal factors.
Non-receipt of mail
It is becoming less common for job seekers to require notification of appointments and activities by mail. However, where a job seeker's only communication is by mail and they claim not to have been notified of a requirement it is important to be aware of the interaction between the Acts Interpretation Act 1901 and the SS(Admin)Act. The Acts Interpretation Act 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 provisions of the Acts Interpretation Act do not override the reasonable excuse provisions of the SS(Admin)Act.
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:
- previous attendance and compliance history
- the explanation of the job seeker
- whether other documented contact attempts such as SMS messages, phone calls and face-to-face reminders were made
- whether a recent change of address may have meant that the job seeker did not receive the notification
- the job seeker's accommodation circumstances and possible diversions of mail, and
- whether the job seeker has a history of mail disturbances and what steps they have taken to secure their mail.
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 verifies the person's illness - if one was obtained on or before the incident in question. A medical certificate should not be requested to confirm a reasonable excuse if the job seeker has not already obtained one. However, in some circumstances illness can be accepted as a reasonable excuse without a medical certificate. 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 ahead of the requirement time, the provider can reschedule the requirement and should not report the failure (unless the provider has reason to doubt the genuineness of the illness).
Note: A decision maker may need to request a medical certificate where a condition is ongoing, may affect the job seeker's work capacity and is not currently being taken into account.
Reasonable excuse for requirements on weekends
Job seekers can sometimes have requirements scheduled on a weekend. If a job seeker fails to meet a requirement on a weekend, normal reasonable excuse considerations apply. However, the decision-maker should give consideration to factors that may not usually be relevant for the job seeker for requirements scheduled on weekdays. For instance, a parent may need childcare for their children when attending a weekend appointment, whereas if the appointment were during the week their child may be in school. Likewise, it may be harder for an individual to arrange transport on a weekend. However, as above, a job seeker must give prior notice of any reasonable excuse where it is reasonable to do so.