3.11.14.30 Participation payment suspensions, connection failures, non-attendance failures, reconnection failures & penalties

Introduction

This section concerns information on participation payment suspensions, connection failures, non-attendance failures, reconnection failures and penalties 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.

Participation payment suspensions & non-attendance failures for failure to attend an appointment with an employment services provider

A job seeker can be required to attend an appointment with an employment services provider, Services Australia or a third party provider (such as a WFD host organisation) under SS(Admin)Act section 63 or as a term of their Job Plan. There are different consequences for non-attendance, depending on who the appointment is with.

If a job seeker fails to attend an appointment with their employment services provider and this is reported to Services Australia, the job seeker's participation payment becomes immediately non-payable and their participation payment is suspended. Any payment due to the job seeker but not yet paid, including payment for any period prior to the failure to attend, is withheld. Once the job seeker attends a further appointment with their provider their payment is restored from the date it was suspended (i.e. they are fully back paid, although a penalty may subsequently apply - see below).

This further appointment is a reconnection requirement, which must be within 2 business days of contact taking place with the job seeker, otherwise the payment suspension is lifted.

If the job seeker has no reasonable excuse for the initial failure, or failed to give prior notice of a reasonable excuse when it was reasonable to expect them to do so, a non-attendance failure may also be applied. The job seeker then loses one-tenth of their fortnightly participation payment for each business day from and including the day they were notified or were deemed to have been notified of the failure until the day before they attend the reconnection appointment. (See below for more detail on the calculation of the daily rate for non-attendance failure penalties). The non-attendance failure period also ends if:

• a reconnection appointment cannot be arranged to occur within 2 working days of contact with the job seeker
• the reconnection appointment is rescheduled
• the job seeker is no longer required to attend a reconnection appointment.

Failure to attend the further appointment may again result in immediate suspension of payment. Failure to attend the further appointment without giving prior notice of a reasonable excuse can result in a reconnection failure, which means the job seeker immediately enters a reconnection failure period (see below).

Note: If the purpose of any appointment with an employment services provider (including an initial or usual appointment or a reconnection appointment) cannot be achieved due to the behaviour of the job seeker at that appointment then a payment suspension can occur or a non-attendance failure can be applied, even though the job seeker has attended the appointment. (Poor behaviour in this context does not include failure to enter into a Job Plan, as that is dealt with under the connection failure provisions - see below).

Attendance at the premises of a provider does not count as attendance at the appointment if the provider, for good reason, does not conduct the appointment.

Connection failures - overview

A job seeker will incur a connection failure if, without a reasonable excuse, they:

• fail to attend an appointment with Services Australia or a third party provider (such as a WFD host organisation or Skills for Education and Employment (SEE) provider)
• fail to enter into a Job Plan where the job seeker is already in receipt of payment, or
• fail to meet job search requirements.

There is no financial penalty for a connection failure. Instead, the job seeker is given a reconnection requirement. The nature of the reconnection requirement is determined by the type of connection failure the job seeker has committed. A connection failure also contributes towards the count of failures used to determine whether a job seeker has committed a serious failure due to persistent non-compliance.

If the job seeker, without reasonable excuse, does not meet the reconnection requirement a reconnection failure period will commence (see below).

Connection failure for failure to attend an appointment

If a job seeker fails to attend an appointment other than an appointment with an employment services provider (e.g. an initial appointment with a WFD host organisation or SEE provider) and the employment services provider decides to report that to Services Australia, or the job seeker fails to attend a participation-related appointment with Services Australia, the job seeker's payment is withheld and is reinstated once the job seeker agrees to attend a reconnection appointment.

If the job seeker did not give prior notice of a reasonable excuse for their failure to attend the initial appointment, then a connection failure is also applied unless it was unreasonable for the job seeker to give such prior notice.

Connection failure for failing to enter into a Job Plan

(Note that a Job Plan is an EPP under social security law (3.11.2).)

A job seeker currently in receipt of an income support payment will incur a connection failure if they fail to enter into a Job Plan without a reasonable excuse. Payment will be restored once they agree to attend a reconnection appointment at which they will be given another chance to enter into a Job Plan. A second consecutive refusal to enter into a Job Plan may result in a loss of qualification and cancellation, rather than the application of a second failure, unless the instances are separate and relate to different Job Plans.

Where payment is cancelled, the job seeker will need to reclaim their payment and demonstrate their qualification before they can be paid again. Arrears for the period of cancellation are not payable due to the lack of qualification.

A failure for refusing to enter into a Job Plan cannot be applied if the terms of the Job Plan were unlawful or unreasonable for the job seeker, given their circumstances.

Connection failure for job search-related failure

Job search efforts are checked by employment services providers and unsatisfactory efforts can be reported to Services Australia. A job seeker will incur a job search-related connection failure if Services Australia agrees with the provider's assessment that the job seeker's efforts have been unsatisfactory and no reasonable excuse exists. Unsatisfactory efforts include:

• failing to undertake the required number of job searches in a period as required by their Job Plan
• looking for work in too narrow a field
• falsifying job search efforts
• failing to act on a referral from their provider to a specific job, or
• submitting poor quality job applications.

Exception: PP job seekers cannot incur connection failures for not meeting job search requirements.

Reconnection requirements & failures - general

Where a job seeker fails to attend an appointment with their provider (regardless of whether or not they had a reasonable excuse), and their provider decides to report that to Services Australia, their provider will book a rescheduled appointment, which will be a reconnection requirement. If the job seeker incurs a connection failure for failing to attend a participation-related appointment with Services Australia, failing to enter into a Job Plan or failing to comply with the job search requirements in their Job Plan without a reasonable excuse, Services Australia will generally issue the job seeker with a reconnection requirement. Services Australia will generally also book the reconnection appointment where the provider submits a report due to non-attendance at a specialist or third party provider appointment, regardless of whether a connection failure is applied.

The reconnection requirement will depend on the circumstances but will be:

• attendance at a further appointment, for job seekers who have missed an appointment, or
• attendance at a further appointment to enter into a Job Plan, for job seekers who have failed to enter into a Job Plan.

When the reconnection requirement is to attend a further appointment, it can be on the same day as the contact is made with the job seeker to discuss the failure to attend the initial appointment, if this is reasonable and will present no difficulties for the job seeker. Additionally, a reconnection appointment can be undertaken over the phone where this is the most suitable method of re-engaging the job seeker and suits the sorts of services to be delivered during the appointment. If an appointment cannot be arranged to occur within 2 business days of contact with the job seeker, the job seeker's payment, if suspended, must be restored with back pay and any non-attendance failure period must be ended.

A reconnection failure occurs if the job seeker fails to meet their reconnection requirement without a reasonable excuse. They then immediately enter a reconnection failure period and need to meet a further reconnection requirement.

If the job seeker has a reasonable excuse for failing to meet their reconnection requirement, they do not incur a reconnection failure but they will usually be given another reconnection requirement.

If a job seeker has incurred a connection failure for refusing to enter into a Job Plan and has been given a reconnection requirement to attend a further appointment to enter into a Job Plan, they may incur a reconnection failure for not attending the appointment. However, if they attend but refuse to enter into a Job Plan or, when discussing their failure to attend they indicate that they still do not want to enter into a Job Plan, the provider should report this to Services Australia and, if Services Australia finds they had no reasonable excuse, Services Australia should cancel the job seeker's payment.

Reconnection failure period

During the reconnection failure period, the job seeker loses one-tenth of their fortnightly participation payment for each business day from and including the day the failure occurred until:

• the day before the day on which they meet their further reconnection requirement, or
• if they have a reasonable excuse for not meeting the further reconnection requirement, the day before the day on which they were supposed to meet the further reconnection requirement, or
• if they are no longer required to reconnect due to a change in circumstances, the day before the day on which the change of circumstances occurred.

Job seekers with a reasonable excuse for non-attendance at a further reconnection requirement will usually be given another reconnection requirement.

Further reconnection requirements - general

For job seekers who have incurred a reconnection failure for failing to attend an appointment, the further reconnection requirement will be another requirement to attend an appointment.

A job seeker who fails on a second consecutive occasion to meet a requirement to enter a Job Plan should have their payment cancelled so no further reconnection requirement needs to be given.

If a person who is in a reconnection failure period has a requirement to attend a CCA, then that becomes their further reconnection requirement and they can only end the reconnection failure period by attending the CCA.

If a job seeker fails to comply with a further reconnection requirement without a reasonable excuse, and if the failure is reported by their provider, or if they fail to meet a Services Australia reconnection requirement without a reasonable excuse, they will incur another reconnection failure and be given a further reconnection requirement and will remain in a reconnection failure period.

If a job seeker fails to meet a further reconnection requirement but has a reasonable excuse for doing so, the reconnection failure period ends on the day before the job seeker failed to meet the further reconnection requirement. The job seeker would then need to meet another reconnection requirement and may remain suspended until they do so. The job seeker would enter another reconnection failure period if they failed to meet that requirement without having a reasonable excuse.

Similarly, if a job seeker contacts with a reasonable excuse prior to a reconnection appointment and the appointment is rescheduled, the reconnection failure period ends on the day before the job seeker contacts. The job seeker would still be required to attend the rescheduled reconnection requirement and would enter another reconnection failure period if they failed to meet that requirement without having a reasonable excuse.

Continued failure to comply with a requirement to reconnect may also result in a loss of qualification for payment due to the ongoing failure to meet mutual obligation requirements. Where the person has been required to reconnect but has still not reconnected 4 weeks after first being required to do so, their payment may be cancelled.

Where payment is cancelled in the above circumstances, the job seeker will need to reclaim their payment and demonstrate their qualification before they can be paid again. Arrears for the period of cancellation are not payable due to the lack of qualification.

Reconnection & non-attendance failure penalties - daily penalty rate

For each business day of a reconnection failure period or non-attendance failure period, the job seeker will lose the equivalent of a working day's rate of basic participation payment, including ES, and the pro rata amount of any participation related supplement. Note that while the duration of the 2 penalty periods is calculated differently, the penalty amount for each day in either period is calculated in the same way. In a fortnightly instalment period this is one-tenth of their participation payment for the pay period for each business day they remain in the reconnection failure period, or non-attendance failure period, 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 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 reconnection penalties or non-attendance failure penalties.

The calculation of the amount does not include add-on payments such as RAA, pension 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 failures occurred.

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