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

Access the Review Record screen in the Participation Compliance Hub to ensure there are 3 applied failures (either 3 applied connection, non-attendance or reconnection failures, or 3 applied No Show, No Pay failures) within the Serious Failure assessment period.

The incident date of the failure is used to determine whether 3 applied failures have occurred within a Serious Failure assessment period.

A serious failure is not applied if 3 applied failures within the Serious Failure assessment period have not occurred.

Circumstances when there may no longer be 3 applied failures in the assessment period include:

• A previous failure (or failures) which contribute to the count of 3 applied failures is no longer valid; for example, a previously applied failure is no longer valid, or can no longer remain 'applied' due to nil or reduced payment in the fortnight in which the failure occurred
• Revocation of previously applied failures; a review of prior failures has occurred due to the identification of previously undisclosed barriers or a greater awareness of the impacts of previously known barriers. The count of failures should occur following this review. For further information, see Completing a Comprehensive Compliance Assessment (CCA)

Note: when the CDP job seeker has had a serious failure reapplied following Payment Pending Review (PPR), the end of the non-payment period is deemed to be the date the CCA was completed. A serious failure period reapplied following PPR will not reset the period under consideration.

Have factors been identified that may affect the validity of the failures applied in the Serious Failure assessment period?

• Yes, go to Step 2
• No, go to Step 3

When non-discretionary factors have been identified that result in there being no legislative basis to maintain an applied failure, a Secretary initiated review of the decision is required.

This occurs when a failure was correctly applied based on the known circumstances at the time the decision was made but a subsequent event made the failure invalid. It does not apply to situations when a failure remains valid but factors that have since become known may have impacted the reasonable excuse determination.

For example, a non-attendance failure is applied for failure to attend compulsory provider appointment, but once reporting is completed for the fortnight in which the failure occurred, the CDP job seeker's rate of payment was reduced due to income, making the failure invalid. In these cases, the failure must be revoked as there is no legislative basis to maintain the failure. The serious failure will also be rejected if there are no longer 3 applied failures in the assessment period.

For more information about factors that make a failure invalid under the relevant legislation see Reviewing and validating Community Development Program (CDP) Provider Reports.

Has the CDP job seeker had at least 3 valid applied connection, non-attendance or reconnection failures, or 3 valid applied No Show No Pay failures within the Serious Failure assessment period?

• Yes, go to Step 3
• No, see Step 2 in Table 2

The CCA Report forms part of the evidence base used to determine if non-compliance was persistent.

The CCA should identify:

• whether the CDP job seeker's mutual obligation requirements were appropriate
• if the CDP job seeker has circumstances impacting their compliance, and if so how these circumstances have impacted on their non-compliance over the CCA assessment period

The CCA Report may also provide further information when contact with the CDP job seeker's provider was required and it may also specifically indicate whether non-compliance was wilful or outside of the CDP job seeker's control.

If further information or clarification is required the Participation Solutions Team (PST)-skilled Service Officer should consult with the CCA Specialist who conducted the CCA.

A serious failure is not applied when a CDP job seeker is not entitled to receive any participation payment in the entitlement period in which the serious failure determination occurs.

Making a determination on persistent non-compliance should not be deferred to a later period simply because the CDP job seeker is not likely to receive an amount of participation payment in the instalment period on which the serious failure decision is made.

When the participation payment is current at the time of the determination, proceed with the decision. If on a later review it is evident the CDP job seeker did not receive a payment for the fortnight in which the decision to apply the serious failure was made, the serious failure will need to be revoked.

If the CDP job seeker's payment has been cancelled at the start of the instalment period in which a determination will be made on persistence, it may be assumed the CDP job seeker will not receive a payment for that fortnight.

The serious failure cannot be 'Finalised Without Penalty' simply due to not receiving an amount of participation payment in the following circumstances:

• the CDP job seeker's payment has cancelled from a date other than 'date paid to + 1' and is eligible to receive an amount of participation payment for the instalment period
• the CDP job seeker will not be paid any participation payment due to the recovery of a debt or an outstanding compliance penalty amount, as the payment has been received but immediately recovered against the penalty or debt

Can the serious failure be finalised without applying a penalty because the CDP job seeker will not receive a participation payment in the instalment period in which the decision is being made?

• Yes, go to Step 5
• No, go to Step 6

When a serious failure for persistent non-compliance cannot be applied due to nil participation payment in the instalment period in which the determination was made, the Service Officer records the following on the Decision screen:

• In completing the CCA, have you assessed the following? - select Yes
• Was the pattern of non-compliance persistent? - select Yes
• What is the decision in relation to the compliance action? - select Finalise CCA and do not apply a penalty' followed by CCA reason 'Persistent, did not receive payment in fortnight.
• Please provide a summary of why this decision has been made - record 'CDP job seeker found to be persistently non-compliant. A serious failure could not be applied as CDP job seeker did not receive participation payment for the instalment period in which the determination was made.'

See Table 2.

Overall pattern

• Does the CDP job seeker's compliance history/record of attendance indicate persistent non-compliance? When assessing this history, consider:
• All compliance event investigations, including events applied, rejected
• Finalised Non-Attendance Reports (NARs)
• A prior unwillingness to sign or negotiate a Job Plan
• Attendance pattern in Online Diary, Services Australia Appointment System and Allowable Absences on the Provider Recorded Information screen
• How well has the CDP job seeker complied with their requirements overall, that is, in terms of the overall level of requirements and general pattern of attendance?
• The CDP job seeker may have met some of their requirements over the period, but their instances of non-compliance may outweigh the instances of compliance, which may indicate they have demonstrated a pattern of sustained non-compliance

Note: finalised NARs will not contribute to an automatic CCA being triggered but should be considered when assessing whether non-compliance has been persistent.

Non-compliance within a short time frame

Consecutive failures within a short timeframe might not be sufficient evidence of persistence, particularly if this is the CDP job seeker's first CCA.

All of the following needs to be taken into account in the determination of persistence:

• whether this is the CDP job seeker's first CCA (within the last 12 months)
• the CDP job seeker's overall intent for example, if they have clearly advised they understood what was required of them but clearly had no intention of attending their appointments, (despite the CCA having been triggered within a short time frame), persistent non-compliance can still be found to have occurred
• the CDP job seeker had previously been advised/reminded of their mutual obligation requirements, expectations and potential consequences
• when evidence exists that a CDP job seeker has previously received multiple compliance warnings, consecutive days of non-attendance should not be used as a reason for 'automatically' finding the pattern of non-compliance 'not persistent'. This is because expectations and potential consequences have previously and repeatedly been reinforced with the CDP job seeker

Recent compliance history

• The CDP job seeker may have incurred several recent compliance actions, but their recent compliance history indicates a willingness to comply with requirements and look for work - so persistent non-compliance may not be clearly demonstrated

If circumstances have not significantly impacted the CDP job seeker's non-compliance with their requirements during the period, or no circumstances are identified, consider the following:

• What were the reasons for non-compliance?
• To what extent did the CDP job seeker intend to comply with the requirement/s?
• What level of care did the CDP job seeker employ to ensure they met the requirement/s, that is, did they record appointment on a calendar, keep a diary or a reminder on their mobile phone?
• Have clear messages been conveyed to the CDP job seeker or the CDP job seeker received previous compliance warnings?
• Does the CDP job seeker understand the consequences of non-compliance?
• Have the CDP job seeker's circumstances significantly impacted their capacity to comply?, and
• If circumstances impacting compliance were experienced by the CDP job seeker, has this been taken into account when setting requirements that is, are their mutual obligation requirements reasonable and within their capacity?

Is there an outstanding ESAt referral?

• Yes, go to Step 8
• No, see Table 2

If sufficient evidence exists to finalise the serious failure decision without penalty, the PST-skilled Service Officer does not need to wait until the ESAt referral has been finalised.

When the PST-skilled Service Officer 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 can be adequately taken into consideration.

In some cases, it may be appropriate to withdraw the ESAt flag. See Actioning a pending Job Seeker Snapshot initiated Employment Services Assessment (ESAt) activity for more information.

Is there sufficient evidence to finalise the serious failure without penalty or has the flag now been removed?

• Yes, see Table 2
• No, 'save and exit' the workflow using the reason 'Pending JCA referral for identified barriers' and hold the activity in the CCAEVD position until the day after the scheduled ESAt appointment. Procedure ends here

Persistent non-compliance has occurred when:

• the CDP job seeker has demonstrated a pattern of sustained non-compliance, and
• non-compliance was intentional, reckless or negligent

Non-compliance is not intentional, reckless or negligent if:

• the identified barriers significantly impacted the CDP job seeker's capacity to comply during the period of non-compliance, and
• the CDP job seeker's requirements at the time were not reasonable, that is, not within their capacity

Was the non-compliance persistent, that is, sustained and intentional, reckless or negligent?

• Yes, go to Step 3
• No, go to Step 2

When persistent non-compliance is not established, the serious failure is finalised without penalty. The Participation Solutions Team (PST)-skilled Service Officer should record the following on the Decision screen:

• 'In completing the CCA, have you assessed the following?' - select Yes
• 'Was the pattern of non-compliance persistent?' - select No
• 'What is the decision in relation to the compliance action?' - 'Finalise CCA and do not apply a penalty' will be prepopulated

Summarise the decision in the What is the reason for making this decision?: field, clearly outlining:

• whether or not there were enough substantiating (applied) failures, and
• the grounds or considerations for determining the non-compliance were not persistent, for example:
• the CDP job seeker's non-compliance was directly impacted by their capacity (that is, due to identified circumstances impacting compliance), and therefore non-compliance is not considered intentional, reckless or negligent
• the substantiating failures provided the only opportunity for reinforcing expectations and advising consequences of repeated non-compliance with the CDP job seeker (both during and prior to the CCA assessment period) and were treated as a single event, or
• there is no pattern of sustained non-compliance, for example the number of instances of compliance clearly outweighed the number of instances of non-compliance

Go to Step 8.

Using the CCA workflow record that a serious failure for persistent non-compliance has occurred on the Decision screen.

In the Decision screen, the PST-skilled Service Officer completes the following:

• 'In completing the CCA, have you assessed the following?' - you must tick all checkboxes to indicate you have assessed the four items
• 'Was the pattern of non-compliance persistent' - select Yes
• 'What is the decision in relation to the compliance action' - select Finalise CCA and apply a penalty

The following questions will be presented on the Decision screens in the Participation Compliance Hub to assist in this determination:

• Does the CDP job seeker have the capacity to undertake a serious failure requirement (i.e. to attend a waiver re-engagement appointment)?
• Will serving the non-payment period cause the customer severe financial hardship?

When a decision has been made to apply a serious failure, the following questions will be presented on the Decision screen to assist in determining whether a hardship waiver is applicable under serious failure hardship provisions:

• Does the CDP job seeker have capacity to undertake a serious failure requirement? Note: lack of capacity to undertake a serious failure requirement, which involves attending a re-engagement appointment with their provider, is demonstrated through an exemption from their mutual obligation requirements over the next fortnight
• Will serving the non-payment period cause the customer severe financial hardship?

Serious failure hardship waiver applies

If the response to the first question is 'No' and the second question 'Yes', the workflow will select the waiver option as the non-payment period must be waived under the hardship provisions.

Serious failure hardship waiver does not apply

A hardship waiver does not apply when a person has capacity to undertake a serious failure requirement.

When a hardship waiver does not apply the CDP job seeker may elect to attend a re-engagement appointment to waive all, or part of, the serious failure.

For more information when the CDP job seeker:

• elects to have their serious failure period waived by completing a compliance activity, see Waiving a serious failure period
• will be paid a participation payment under hardship provisions, see Serious failure hardship provisions

When a serious failure is not waived, the system will 'turn off' form lodgement and the payment status will show as current at zero rate (CZR) when the serious failure penalty period starts.

CDP job seekers who are income managed are not exempt from incurring financial penalties, but may incur failed expenses if there is not enough money available in their Income Management account.

Is the CDP job seeker income managed?

• Yes, see Effect of a compliance action on Income Management. Go to Step 6
• No, go to Step 6

The summary of the decision should include:

• the CDP job seeker has enough constituting failures to enable a determination that persistence has occurred
• the CDP job seeker has demonstrated persistent non-compliance:
• non-compliance was intentional, reckless or negligent, and
• the CDP job seeker has demonstrated a pattern of sustained non-compliance, and
• the CDP job seeker's overall compliance/non-compliance history has been considered in reaching this determination

If circumstance impacting compliance are identified in the CCA Report, but the serious failure is to be applied, the decision summary must clearly explain why the CDP job seeker's non-compliance is determined to be intentional, reckless or negligent despite the existence of those circumstances. For example:

• the identified circumstances did not impact significantly on the CDP job seeker's capacity to comply with their requirements, or
• the CDP job seeker's circumstances did not impact on the CDP job seeker's capacity to comply during the period of non-compliance, or
• the CDP job seeker's requirements were within their capacity, even taking their circumstances into consideration

If the CDP job seeker is not already on the phone, the PST-skilled Service Officer (WNPPD) is responsible for attempting to contact the CDP job seeker via phone to discuss the decision.

• Inform the CDP job seeker a decision has been made to apply a serious failure, resulting in a serious failure penalty period
• Provide information about the serious failure penalty period start and end dates
• Explain the CDP job seeker's review and appeal rights. For more information, see Non-compliance with compulsory requirements - review and appeals
• Advise the CDP job seeker they can re-engage with their provider in lieu of serving the serious failure penalty period. For more information, see Waiving a serious failure period
• When Section 42NC does not apply, identify whether hardship provisions are applicable. For more information, see Serious failure hardship provisions
• Make a determination about any recommended exemptions from mutual obligation requirements
• If the CCA Report identified other appropriate payments or services explain these to the CDP job seeker and invite to claim

A letter is also sent to the CDP job seeker notifying the outcome of the decision, review and appeal rights and waiver provisions.

If unable to contact, the PST-skilled Service Officer (WNPPD) should make the decision on persistent non-compliance and consider whether any further action is required, for example, a determination regarding an exemption from mutual obligation requirements suggested by the CCA Specialist who conducted the CCA. The CDP job seeker will then be notified of the outcome via letter.

When deciding to apply a serious failure, the CDP job seeker will only be re-engaged with their provider if they agree to attend a waiver re-engagement appointment in lieu of serving the serious failure penalty period.

Review the CCA Specialist recommendations in the CCA Report and, if appropriate:

• Make a determination regarding any recommended exemptions from mutual obligation requirements
• If the CCA Specialist has identified other appropriate payments or services explain these to the CDP job seeker and invite to claim

For more information, see Completing a Comprehensive Compliance Activity (CCA).