Implementing the outcome of a review of a participation failure decision 001-10130020

After a review of a TCF decision (made under social security law) or a review of a JSCF decision is completed, the outcome is implemented using the Review Decision workflow in the Participation Compliance Hub.

It must be implemented within:

• 7 days of the Authorised Review Officer (ARO) formal review decision date, or
• 30 days of the date of notification from the Litigation Branch of an Administrative Review Tribunal (ART) review outcome.
  An ART decision must only be implemented when directed by the Litigation Branch. See Administrative Review Tribunal (ART)

Note: the outcome must not be implemented if the job seeker:

• was still being paid pending a formal review by an ARO, and
• has applied for an ART first review. See Payment Pending Review (PPR) of a decision to apply a penalty for non-compliance

A Participation Solutions Team (PST) Subject Matter Expert (SME) WNPPD or an Appeals Support Team Service Officer WNPPD (priority review) implements review outcomes for the following decisions:

• suspending payment because of a mutual obligation failure or work refusal failure
• applying a financial penalty because of a mutual obligation failure, including the amount of the financial penalty
• cancelling payment because of:
• a mutual obligation failure
• a work refusal failure
• an unemployment failure, or
• a failure to re-engage with reconnection requirement in 29 days
• applying an unemployment preclusion period or a post cancellation non-payment period, including the start date and length of this period

When a decision is made to set aside a mutual obligation failure, any subsequent mutual obligation failures in the same failure group are adjusted automatically by the system. The system will not automatically update the failure group if the date to set aside the failure is 93 days or more from when it was applied. It will need to be manually updated.

Financial penalties for other mutual obligation failures that were not part of the failure group are not adjusted.

A job seeker can ask for a review of decision at any time; however, the 13 week favourable rules apply when the decision relates to a cancellation. If a cancellation outside of 13 weeks is reviewed, they are not eligible for any adjustments to penalty amounts previously deducted. When a job seeker asks for a review of any other decision, any adjustments to penalty amounts previously deducted because of the decision must be paid to them.

When a failure decision, penalty period or financial penalty is changed, the Employment Services System (ESS) is electronically notified. The ESS automatically adjusts the job seeker's TCF zone if required.

Services Australia does not have responsibility for implementing decisions made by providers and recorded in the ESS. This includes a decision to record an invalid reason for a mutual obligation failure that:

• occurred while a job seeker was in the green or warning zone, and
• resulted in the application of a demerit

JSCF decisions that may require outcomes implemented following formal review include:

• the application of a:
• connection failure
• non-attendance failure
• reconnection failure
• No Show, No Pay failure
• serious failure, or
• Unemployment Non-Payment Period (UNPP)
• the amount of a:
• non-attendance failure penalty
• reconnection failure penalty, or
• No Show, No Pay failure penalty
• the date a penalty period applies from
• the decision not to make payment under hardship provisions
• participation payment suspensions applied for not attending an appointment (or mutual obligation requirement) following receipt of a:
• Participation Report
• Non-Attendance Report (NAR), or
• Provider Appointment Report (PAR)
• cancellation for not entering into a Job Plan
• cancellation for not re-engaging, or failing to accept a reconnection requirement, following a participation payment suspension
• cancellation when a job seeker has failed to contact their provider following submission of a NAR
• the validity of a NAR and a PAR

A Participation Solutions Team (PST)-Subject Matter Expert (SME) WNPPD, or an Appeals Support Team Service Support Officer WNPPD (priority review), implements review outcomes of JSCF decisions for a:

• Non-Attendance Report (NAR)
• connection failure
• non-attendance failure
• reconnection failure, and
• No Show, No Pay failure

If the outcome of a review is to revoke:

• a job search related connection failure. Any subsequent reconnection failures and reconnection failure penalties applied in the sequence of re-engaging the job seeker must also be revoked
• a NAR, connection failure, non-attendance failure or suspension failure as 'invalid', and if this was the only valid compliance action in the failure sequences before:
• a non-attendance failure was 'applied', or
• a reconnection failure was 'applied with penalty'. Then any non-attendance failure penalty or reconnection failure penalty amount already recovered must be paid to the job seeker.
  Note: the reconnection failure is not revoked, but instead becomes a connection failure
• a No Show, No Pay failure. Any No Show, No Pay penalty amounts already recovered must be repaid to the job seeker
• a reconnection failure and another 'applied with penalty' reconnection failure does not exist in the same failure sequence. Then any reconnection penalty amounts already recovered must be repaid to the job seeker

If the decision to apply a UNPP or serious failure is set aside (the outcome is fully favourable), this is implemented by:

• a Participation Solutions Team (PST) Subject Matter Expert (SME) WNPPD
• a service centre Subject Matter Expert (SME) UNPP (UNPP only), or
• an Appeals Support Team Service Officer (priority reviews)

This includes ceasing Payment Pending Review.

The penalty period will recommence:

• if the decision to apply the UNPP or serious failure is affirmed, and:
• no party has requested an ART first review, or
• the next stage of review is the ART second review, and a stay order has not been issued
• from the start date of the entitlement period following the one in which the decision was affirmed, provided it is recorded within 13 weeks of the new decision being made

A UNPP or serious failure penalty period also recommences from the start date of the next entitlement period if:

• the job seeker withdraws their application for a review, or
• the ART dismisses the case without a decision (for example, in cases when the job seeker does not appear at the hearing or cannot be contacted)

If a decision to apply a UNPP is affirmed and the job seeker has already 'self-served' part of the UNPP before claiming, they only need to serve the remainder of the non-payment period. If they have not already self-served part of the UNPP, the job seeker must serve the full UNPP or serious failure period. However, consideration should be given to eligibility under UNPP hardship provisions.

If a serious failure period is reapplied following review, the PST SME should discuss with the job seeker the option of attending a waiver re-engagement appointment with their CDP provider. The job seeker may be eligible for payment under hardship provisions if they:

• agree to attend a waiver re-engagement appointment but do not have the capacity to attend, and
• will be in severe financial hardship because of the serious failure period

This outcome is implemented by:

• a Participation Solutions Team (PST) Subject Matter Expert (SME) WNPPD
• a service centre SME UNPP, or
• an Appeals Support Team Service Officer (priority reviews)

If the decision not to make payment under hardship provisions is set aside, payment should be reinstated from the date the job seeker:

• requested consideration of hardship provisions, or
• became eligible under hardship provisions, whichever is later

When the outcome of a Payment suspension (participation) review is the decision is set aside, payment will be restored. This applies from the date of effect of the suspension when the application for formal review was lodged within 13 weeks of the decision being notified to the job seeker.

If the outcome is to set aside the payment cancellation decision, payment is reinstated from the date of effect of the decision to cancel. This only applies when the application for review was lodged within 13 weeks of the decision being notified to the job seeker.

This includes decisions to cancel payment because of:

• a work refusal failure
• an unemployment failure
• a third mutual obligation failure in the financial penalty zone
• failing to re-engage when the person has not:
• re-engaged after being given a re-engagement requirement, or
• made suitable arrangements to re-engage following a payment suspension (participation), or
• failing to enter into a Job Plan or Participation Plan