Implementing the outcome of a failure review or appeal 001-10130020

When a formal review of a job seeker compliance decision made under social security law has been completed, this is returned to the:

• Appeals Support Team if a priority review, or
• Participation Solutions Team (PST) who conducted the quality check for implementation if not a priority review

The Review Decision workflow in the Participation Compliance Hub is used to implement the decision. PST-skilled Service Officers with a WNPPD security resource or Appeals Support Team Service Support Officers with WNPPD security resource have access to this workflow for implementing review outcomes.

When the outcome of a review is discussed with a customer and they indicate their intention to lodge an appeal with the Administrative Review Tribunal (ART), the customer should be encouraged to make their appeal directly to the ART in person, by phone, via an application form or online. If an ART request for review form is lodged with Services Australia, forward to the ART immediately.

Targeted Compliance Framework decisions that Services Australia have responsibility for implementing a review of decision include:

• suspension decisions as a result of a mutual obligation failure or work refusal failure
• application of a financial penalty as a result of a mutual obligation failure, including the amount of the financial penalty
• cancellation of payment as a result of a mutual obligation failure, work refusal failure, unemployment failure or failure to re-engage with reconnection requirement within 29 days
• application of an unemployment preclusion period or post cancellation non-payment period, including the start date and duration of this period

The outcome of the formal review of these decisions should be implemented within 7 days of the review decision date.

Note: an Administrative Review Tribunal (ART) decision must only be implemented when directed by the FOI and Litigation Branch. The decision must be implemented within 7 days, unless the job seeker faces immediate implementation of an adverse decision without the opportunity to consider further appeal options.

When a decision to apply a first or second mutual obligation failure is set aside, the job seeker's financial penalty for any subsequent mutual obligation failures in the same failure group will be adjusted automatically by the system.

The 13 week favourable determination rules apply. When a request for a review of decision has been received within 13 weeks of notification of the decision, any adjustments to penalty amounts recovered as a result of the decision must be returned to the job seeker. Financial penalties for other mutual obligation failures that were not part of the failure group are not adjusted.

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 Targeted Compliance Framework zone if required.

Services Australia do not have responsibility for implementing decisions that are made by providers and have been 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 that resulted in the application of a demerit.

Job Seeker Compliance Framework 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 a 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 PST-skilled Service Officer (WNPPD), or for priority reviews an Appeals Support Team Service Support Officer (WNPPD), is responsible for implementing the outcomes of NARs, connection, non-attendance failure, reconnection and No Show, No Pay failure review and appeals.

Payment Pending Review (PPR) is not available for appeals relating to NARs, connection, non-attendance failure, reconnection and No Show, No Pay failures. The outcome of these appeals should be implemented within 7 days of the review/appeal decision date.

If the outcome of the review/appeal is to revoke:

• a job search related connection failure, any subsequent reconnection failures and reconnection failure penalties that were 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 this was the only valid compliance action in the failure sequences prior to a non-attendance failure being 'applied' or a reconnection failure being 'applied with penalty', then any non-attendance failure penalty or reconnection failure penalty amount already recovered must be returned to the job seeker (provided the appeal was lodged within 13 weeks of the decision being notified 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 returned to the job seeker (provided the appeal was lodged within 13 weeks of the decision being notified to the job seeker)
• a reconnection failure and another 'applied with penalty' reconnection failure does not exist in the same failure sequence any reconnection penalty amounts already recovered must be returned to the job seeker (provided the appeal was lodged within 13 weeks of the decision being notified to the job seeker)

If the decision to apply an Unemployment Non-Payment Period (UNPP) or serious failure can be set aside (the outcome is fully favourable), the Participation Solutions Team (PST), service centre Subject Matter Expert (SME) or Appeals Support Team Service Support Officer (priority reviews) is responsible for finalising the review within the Appeals (APL) system and updating the failure status and reason. This includes ceasing Payment Pending Review.

If the outcome of the review/appeal is to revoke the UNPP or serious failure, the decision must be implemented within 7 days of receiving implementation instructions. A decision made by the Administrative Review Tribunal (ART) must only be implemented as directed by the FOI and Litigation Branch.

If the decision to apply the UNPP or serious failure is an affirmed decision, and no party is taking further review and appeal action, or the next stage of review is the ART second review and a stay order has not been issued, the UNPP or serious failure penalty period recommences 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 an appeal or 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 prior to claiming, the job seeker will only be required to serve the remaining balance of the non-payment period. If they have not already self-served part of the UNPP, the job seeker will be required to 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 appeal, the PST SME should discuss with the job seeker the option of attending a waiver re-engagement appointment with their CDP provider. Job seekers who agree to attend a waiver re-engagement appointment but do not have the capacity to attend the appointment and will be in severe financial hardship because of the serious failure period may be eligible for payment under hardship provisions.

The Participation Solutions Team (PST), service centre Subject Matter Expert (SME) or Appeals Support Team Service Support Officer (priority reviews) is responsible for implementing the outcome of decisions not to make payments under hardship provisions.

If the decision not to make payment under hardship provisions is revoked, payment should be reinstated from the date the job seeker became eligible under hardship provisions (provided the appeal was lodged within 13 weeks of the decision being notified to the job seeker).

If the outcome of the review of decision is to restore payment when a payment suspension (participation) exists then payment will be restored back to the date of effect of the suspension.

When the outcome of the review of decision is to overturn a decision to cancel a participation payment, payment will be reinstated from the date of effect of the decision to cancel when the appeal was lodged within 13 weeks of the decision being notified to the job seeker.

This includes decisions to cancel payment as a result of:

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