3.11.14.20 No show, no pay failures

Introduction

This topic concerns information on NSNP failures under the compliance arrangements set out in SS(Admin) Act Part 3 Division 3A. These arrangements only apply to job seekers on participation payments who are declared program participants (i.e. CDP participants) under the Social Security (Declared Program Participant) Determination 2018.

A job seeker may incur one or more NSNP failures if they:

• fail to participate in a compulsory activity required by a Job Plan
• fail to comply with a serious failure requirement (also known as a compliance activity - see below)
• engage in misconduct while participating in an activity
• fail to attend a job interview, or
• during a job interview, deliberately behave in a way that results in them not receiving a job offer.

A decision maker cannot apply a NSNP failure when the job seeker has a reasonable excuse for failing to comply with a requirement and, when the job seeker has failed to attend an activity, they gave prior notice of the reasonable excuse.

A decision maker cannot apply a failure if the activity the job seeker failed to attend or participate in should not have been included as a compulsory activity in their Job Plan because the activity was not suitable or was explicitly precluded by social security law.

Failure to participate in an activity under a Job Plan

Failure to start or participate in an activity as agreed to in a Job Plan can result in one or more NSNP failures. A job seeker may also incur NSNP failure in relation to a particular day if they are substantially late, if they leave the activity early, or if there is an unauthorised absence.

Decision makers have to decide whether the requirement is an activity or an appointment. This is an important distinction because a failure to attend an appointment under a Job Plan results in payment suspension and a potential non-attendance failure, rather than a NSNP failure (although a failure to attend an activity can also result in payment suspension as well as NSNP failure, if the provider indicates to Services Australia that they believe the job seeker is disengaged and that they would like them to attend an appointment to discuss the issue).

In general, activities are requirements such as WFD, training or work experience that take up a substantial part of the day. An appointment is a requirement to attend an office of an employment services provider, Services Australia, or a third party (such as a WFD host or a Skills for Education and Employment (SEE) provider) for a specific purpose, such as updating their Job Plan being referred to a job for a discussion about the job seeker's progress against their Job Plan, undertaking an assessment of the job seeker's skills or to discuss which activity the job seeker will participate in.

Regardless of whether or not they incur a NSNP failure, if a job seeker fails to attend an activity and their provider indicates to Services Australia that they believe that the job seeker has become disengaged from the activity and that they would like to discuss this, the job seeker's income support becomes immediately non-payable. As a consequence, their payment is suspended as soon as Services Australia is notified of the non-attendance and disengagement from the activity. Once the job seeker contacts or is contacted by Services Australia and agrees to attend an appointment with their provider to discuss the matter, their payment is restored from the date it was suspended (i.e. they are back paid in full). If the job seeker does not agree to attend the appointment with their provider, it is booked regardless and their income support payment remains suspended.

Failure to comply with a serious failure requirement

Job seekers may choose to undertake a serious failure requirement (known as a compliance activity) in order to end a serious failure period.

When a job seeker is required to undertake a compliance activity, any failure to comply with that requirement on a particular day, can result in a NSNP failure where the provider reports that non-attendance to Services Australia. However, if the job seeker fails to commence the compliance activity (which means, in practice, entering into a Job Plan containing a requirement to undertake a compliance activity), the job seeker's serious failure period will recommence, rather than them having a NSNP failure applied.

Misconduct while participating in an activity

If a job seeker attends an activity or compliance activity but behaves inappropriately, a NSNP failure may apply. The legislation describes this as committing misconduct while in an activity. The legislation does not define misconduct and, as such, its ordinary meaning is used.

'Behaving inappropriately' means failing to behave according to commonly expected standards. Inappropriate behaviour could include not following reasonable instructions, being unco-operative, aggressive, violent, offensive or disruptive, harassing other participants or behaving in a dangerous manner. It may also include being intoxicated or consuming intoxicants whilst in the activity. In general, the behaviour should be serious in nature, deliberate and within the job seeker's control.

Failure to attend a job interview

Failure to attend a job interview with a prospective employer is a NSNP failure. For a failure to apply the job seeker must have no reasonable excuse for the failure and the work must be suitable (see 3.11.1.20 for the definition of suitable work). A NSNP failure applies for the day of the interview.

Refusal of a job offer is a serious failure (see below).

Failure to behave appropriately at a job interview

If a job seeker attends a job interview with a prospective employer but deliberately behaves in a manner that could be expected to result in the job seeker not receiving a job offer, a NSNP failure applies. Failing to behave appropriately at a job interview could include:

• dressing in a way that is clearly inappropriate for the interview
• displaying an obvious lack of interest in the job on offer
• using inappropriate language, and
• overplaying the impacts of real or non-apparent injuries or illnesses.

Circumstances not within the job seeker's control such as excessive nervousness, poor language or verbal skills or a limited wardrobe cannot be considered as deliberate misbehaviour. It must also have been reasonably foreseeable that the behaviour would result in an offer of employment not being made.

No show, no pay penalties

A NSNP failure will result in the job seeker losing the equivalent of a working day's payment. A working day's payment refers to a calculated amount that not only takes into account a daily payment but also the appropriate proportion of any weekends occurring in the relevant instalment period. In a 14-day instalment period that is not affected by a reconnection failure period, this will work out to be one-tenth of their participation payment for the pay period in which the failure occurred, plus one-tenth of any fortnightly ES paid (see note), and one-tenth of any participation-related supplement. A participation-related supplement is the additional payment that a job seeker gets under social security law for participating in some activities, including WFD and SEE.

Note: The ES may be paid either fortnightly or quarterly. If a job seeker is receiving the ES on a fortnightly basis, paid with their fortnightly participation payment, the ES is included when calculating any penalty amount. If the ES is paid on a quarterly basis, it is a separate payment and is not included in or affected by any NSNP penalties.

The calculation of the amount does not include add-on payments such as RAA, pension GST supplement, RA, PhA, YDS, MOB, PES, TAL and UA. The penalty does not affect a job seeker's access to a HCC or FTB. The penalty amount cannot be greater than the job seeker's payment for the period in which the failure/s occurred. The calculation of the amount is based on the job seeker's participation payment after taking into account any income reductions due to personal, partner or parental income. If part of the period coincided with a reconnection failure period, this will also reduce the amount of participation payment on which the calculation is based.

A NSNP penalty does not reduce the job seeker's entitlement for the pay period in which it is incurred. It results in the job seeker incurring a penalty amount which is deducted from a later payment. The penalty amount cannot be deducted from the first payment that is made after the job seeker is notified of the decision to apply the failure, but can be deducted from any payment after that. If necessary, it can be taken from more than one payment.

Because the penalty amount is calculated on the basis of the amount of participation payment received in the period in which the failure/s occurred, it is possible that in the period in which it is deducted the job seeker may not receive enough participation payment to allow full recovery of the penalty amount (for example because the job seeker has income from part-time work which has reduced their payment). If this is the case, the balance is deducted from future payments of any participation payment until it is fully recovered. Debt recovery arrangements (e.g. waiver of small amounts) do not apply to compliance penalty amounts.

The calculation method for a NSNP penalty is detailed in the Social Security (Administration) (Penalty Amount) Determination 2015 (No. 1).