Persistent non-compliance for Community Development Program (CDP) job seekers 001-10110000

CDP job seekers in receipt of a participation payment are required to comply with mutual obligation requirements as a condition of their payment.

When a CDP job seeker repeatedly fails to comply with requirements, a more serious penalty may apply. Serious failures for persistent non-compliance are intended to act as a deterrent for patterns of behaviour that result in a CDP job seeker not making the most of their opportunities to find work.

A serious failure is applied when the CDP job seeker's non-compliance over the Serious Failure assessment period has been determined as 'persistent'. This involves the decision maker considering both the pattern of non-compliance and the appropriateness of the CDP job seeker's mutual obligation requirements. When there are 3 applied failures over the Serious Failure assessment period, and the CDP job seeker's requirements were assessed as appropriate according to their capacity and any other relevant circumstances, the non-compliance will generally be deemed 'persistent' and a serious failure will be applied.

Before making a determination on a serious failure for persistent non-compliance, a Comprehensive Compliance Assessment (CCA) must be undertaken by a Participation Solutions Team (PST)-CCA Specialist.

After a CCA has been conducted, a PST-skilled Service Officer with a WNPPD security resource is responsible for making a determination whether or not to apply a serious failure as a result of persistent non-compliance.

While a pattern of repeated non-compliance may indicate persistent non-compliance, it may also be an indication:

• the CDP job seeker may be having difficulty complying with their mutual obligation requirements
• the requirements may be unreasonable and/or unrealistic given the CDP job seeker's current circumstances
• the CDP job seeker may have significant barriers to participation which were not previously disclosed or the potential impact of previously identified circumstances may have not been understood and/or considered

The CCA ensures a CDP job seeker's personal factors and/or circumstances that affected their capacity to comply are appropriately considered before making the decision to apply a serious failure

The CCA Report forms part of the evidence base used by a PST-skilled Service Officer (WNPPD) to determine if the CDP job seeker has demonstrated persistent non-compliance. Information on the CDP job seeker's record, including previous failure investigations and information provided by the CDP job seeker's provider, also forms part of the evidence for this decision.

When considering whether the CDP job seeker's non-compliance was persistent, consideration must be given to whether the CDP job seeker has displayed a pattern of sustained non-compliance that was intentional, reckless or negligent in nature throughout the CCA assessment period.

An assessment of 'persistent' non-compliance should take into consideration:

• the CDP job seeker's overall compliance record over the period that is, all non-compliance should be considered including valid Non-Attendance Reports (NARs) submitted with or without a Participation Appointment Report (PAR)
• whether the overall compliance record demonstrates a pattern of persistent non-compliance
• the extent to which the CDP job seeker has otherwise complied with their requirements during the assessment period
• only applied failures or non-compliance events that were within the CDP job seeker's control, that is, the delegate is satisfied the failures or events were committed intentionally, recklessly and negligently
• only failures or non-compliance events when the CDP job seeker's mutual obligation requirements are reasonable and the appropriate notification has been given, and
• the CDP job seeker's most recent compliance history which may serve to demonstrate a genuine willingness to change earlier behaviours

The term 'persistent' has its ordinary meaning that is, persistence would be indicated by deliberate and continued non-compliance despite repeated warnings from their CDP Provider and/or the Participation Solutions Team (PST). This does not mean the non-compliance needs to be total: a CDP job seeker may be found to be persistently non-compliant even though they have met some of their mutual obligation requirements over the period, however:

• if the CDP job seeker's record indicates they are genuine in their efforts to find work, despite instances of non-compliance, the decision maker may find the pattern of non-compliance was not persistent
• when consecutive failures have triggered a CCA, this may not always provide sufficient evidence of persistent non-compliance, for example, if it was the CDP job seeker's first CCA and it was clear there had been no opportunity for reinforcing obligations and potential consequences of repeated non-compliance with the CDP job seeker before the CCA was triggered

While all non-compliance over the Serious Failure assessment period should be considered, a serious failure may only be applied when there have been 3 applied (connection, non-attendance, reconnection failures or 3 applied No Show, No Pay failures within the Serious Failure assessment period.

In determining the 3 applied failures, the incident date of the failure events are used.

When a serious failure for persistent non-compliance is under investigation, CDP job seekers are expected to continue meeting their mutual obligation requirements.

Note: when a Services Australia CCA has been manually generated (excluding manually triggered automatic CCAs) to assess the impacts of suspected barriers to compliance, it may sometimes be appropriate to explore a temporary exemption from their mutual obligation requirements until the CCA outcome is known.

When a CCA is generated this ends any outstanding reconnection requirements. Attendance at the CCA is a compulsory requirement, non-attendance at a CCA is managed by suspension of payment.

When the outcome of a serious failure for persistent non-compliance is pending, no further failures can be applied, excluding:

• connection/reconnection failures relating to non-attendance at a CCA appointment
• a UNPP
• a serious failure for refusing a suitable job offer

A serious failure is not applied when:

• there is not the required number of applied failures during the Serious Failure assessment period
• the CDP job seeker's non-compliance was not found to have been persistent
• a participation payment was not payable for the instalment period in which the decision to apply the serious failure is made

When the Participation Solutions Team (PST)-skilled Service Officer (WNPPD) considers there is sufficient evidence of persistent non-compliance and an ESAt is outstanding, the serious failure determination must be held pending the outcome of the ESAt. This is to ensure the ESAt findings, which may provide evidence regarding the impacts of issues and barriers, are considered when determining whether the non-compliance was wilful, reckless or intentional.

When a decision is made to apply a serious failure the CDP job seeker enters a serious failure period. For a serious failure period to apply to a persistently non-compliant CDP job seeker, Section 42NC of the Social Security (Administration) Act 1999 must also be determined.

This section applies when:

• the CDP job seeker has the capacity to undertake a serious failure requirement, that is, attend a waiver re-engagement appointment with their provider
• the CDP job seeker does not have the ability to undertake a serious failure requirement but serving the non-payment period would not cause them to be in severe financial hardship

When Section 42NC applies, the serious failure period cannot be waived due to hardship at the time of the decision and a participation payment is not payable to the CDP job seeker during the serious failure period unless the CDP job seeker elects to attend a waiver re-engagement appointment.

When Section 42NC does not apply, the serious failure period should be waived under hardship provisions.

The process undertaken for determining whether a CDP job seeker has been persistently non-compliant, consists of a 3 stage process:

• Preparation for a CCA
• Conducting a CCA Specialist Assessment, including
• developing a CCA Report, and
• finalisation of the serious failure determination

Participation Solutions Team (PST)-skilled Service Officers are responsible for:

• generating a CCA
• undertaking brief preparatory work
• informing the CDP job seeker of the intent of the CCA
• referring the CDP job seeker to the appropriate CCA Specialist
• appropriately notifying the CDP job seeker of the requirement to attend the CCA and consequences of non-attendance or failing to contact if unable to attend

The CCA Specialist is responsible for determining the extent to which a CDP job seeker's circumstances may have impacted their ability to comply with the requirements which were not met over the Serious Failure assessment period. A CCA is designed to ensure known barriers and/or previously unidentified barriers are considered in the assessment of 'deliberate' or 'negligent' non-compliance when determining whether the non-compliance is 'persistent'. The CCA specialist will:

• interview the CDP job seeker to explore the reasons for non-compliance
• consider whether the current Job Plan is appropriate
• assess the CDP job seeker's capacity to comply with their mutual obligations requirements
• identify whether the CDP job seeker would benefit from additional or alternative interventions to give them the best chance of complying with requirements in the future, and recording the outcomes of these interventions
• consider if contact with the CDP job seeker's provider is required and when contact occurs, recording the outcome of this contact

Following the CCA, a Participation Solutions Team (PST)-skilled Service Officer (WNPPD) is responsible for determining whether persistent non-compliance has occurred. This involves:

• considering the pattern of non-compliance over the serious failure assessment period and the CCA report
• making a determination on whether the non-compliance over the period was deliberate and/or negligent and persistent
• applying a serious failure if appropriate and discussing any waiver or hardship provisions with the CDP job seeker
• implementing any relevant Services Australia interventions, for example, exemption from mutual obligation requirements or payment reviews, and
• if possible providing the CDP job seeker with an explanation of the decision and their review and appeal rights