Automated decisions in the New Employment Services

adminSocial security rights review

Simone Casey, Australian Council of Social Services

Automation and digitisation of social security decision-making have been with us for a while, whether it be the online self-reporting of income on MyGov, or the Express Plus Centrelink App. Existing scholarship in related fields had already identified a range of concerns with such measures, including: the increasing importance of system-level designers as the ‘organisational backbone’; the ‘digital divide’; internet and device access and ubiquity; and the recentering of administrative power which grew to notoriety in the case of Robodebt.

The shift to digital employment services has introduced a range of online self-reporting obligations onto payment recipients. Since the introduction of the Targeted Compliance Framework (TCF) and the Job Seeker dashboard in 2018, payment recipients have increasingly been required to report their compliance with mutual obligation requirements online.

Digitisation of employment services raises a host of questions such as whether the options and values coded into these interfaces are social security decisions, and/or whether the person administering the system options is making or triggering pre-determined decisions as they interact with digital interfaces. In this article I explore how the arrangements for the New Employment Services Model have brought these questions to the fore, particularly how proposed ‘streamlining’ reforms of the Social Security Act 1991 (SS Act) and the Social Security Administration Act 1999 (SSA Act) will create further scope for the digitisation of decisions that were previously made by humans.

What decisions are involved?
The main social security decisions((This article does not look at ‘work refusal’ decisions.)) relevant to this discussion are about whether a person’s job plan requirements are suitable, whether there was a reasonable excuse for the person not being able to meet them and, in the absence of a suitable job plan or reasonable excuse, whether there has been a mutual obligation failure.

Job plans and points-based activation
The proposed SS Act and SSA Act amendments will mean that there will simply be a requirement for individuals to enter into and comply with a job plan, with no additional ‘activity test’ requirements. However, there will still be requirements in job plans themselves as discussed below.

The proposed ‘streamlining’ reforms will explicitly enable digital job plans to have the same legislative standing as job plans administered by human delegates and enable individuals to change plans online. The amended legislation removes explicit mention of a delegate’s role in changing a job plan, to enable job seekers to self-serve and vary job plans (SSA Act ss 40B and 40E). The self-service of job plans will enable job seekers to populate their job plans with the activities determined as appropriate by the Secretary((The amended Admin Act will prohibit (40L-40T) certain kinds of job plan requirements that are consistent with existing provisions for suitable and unsuitable activities.)).

This will enable the Points-Based Activation System (PBAS) approach to be implemented. Under the New Employment Service Model (NESM), job plans will require people to meet a certain number of points per month, rather than a certain number of job searches((This would imply that the Secretary would have an obligation to ensure that unsuitable job plan requirements are not populated into the job plan.)). The menu of activities available for the points in the job plan will be pre-determined by the Department of Education, Skills and Employment (DESE) with a certain number of points awarded depending on how they have been weighted in DESE policy. Figure 1 illustrates some of the points that might be included in the final model.

Figure 1 – Indicative points model table from the Exposure Draft of the Request for Proposal– Enhanced Services (under review)

Tasks and ActivitiesPoints
Completing a quality job application5 points
Attending a job interview10 points
Starting a job10 points
Education and Training, including JobTrainer funded courses30 points per month while studying
Paid work5 points per 10 hours worked
Work for the Dole30 points per month while participating
Creating or updating their career profile 5 points30 points per month while participating
(once per month only)
Source: Exposure Draft for New Employment Services – Appendix 1 RFP – Enhanced Services (Statement of Requirements) – Tables 6

Figure 2 – example of points for a range of activities

Up to 100 points will be required for each reporting period, using a counter dial like that used for job search requirements. It is intended that point targets will be adjusted for different types of job seekers depending on barriers and labour market conditions((It is not yet clear whether points targets will be automated depending on the JSCI score, or if job seekers will be required to contact a provider or the Digital Contact Centre to have the points adjusted.)).

NESM Mutual obligation failures and review
In the legislation, a mutual obligation failure is broadly defined as a failure ‘to comply with obligations relating to participation payments, such as attending appointments, undertaking activities, or taking action to gain employment’.

In the NESM, mutual obligation failures will apply when there is failure to enter into a job plan, and if job plan requirements have not been met or completed. Not meeting a requirement in the job plan ‘on time’ under the PBAS points system (or as otherwise notified), will result in ‘automated’ payment suspensions((Automatic suspensions already occur in employment services.)).

Automated payment suspensions
The legislation allows the Secretary to use IT to make decisions as the Secretary’s delegate. However, payment suspensions are only lawful if they are used for incidents where the job seeker has been notified of a mutual obligation requirement and failed to meet it. To date, the TCF has demonstrated there are many situations in which job seekers (and providers) fail to RECORD attendance or compliance ‘on time’ for the payment suspension to be avoided, irrespective of whether the requirement was met or not. It is unclear whether payment suspensions that occur in these circumstances are lawful.

The requirement to RECORD compliance with job plan requirements electronically is included in the job plan so that it has the same status as other job plan requirements. This has been a default job plan CODE PA03 – Personal Responsibility to Report and Record Attendance since implementation of the TCF. The assessment of whether a job seeker is capable of self-reporting under PA03 has been undertaken by job service providers. However in the new digital employment services, it appears to be another code, PA06, that will used to create this requirement when job seekers agree to their digital job plan and, by signing the digital job plan, job seekers will automatically be agreeing to reporting and recording responsibilities((The extent of notification of the implications of ‘Personal Responsibility’ that accompanies the use of this job plan code is unclear.)).

Precursor decisions and the administration of compliance reporting
It is possible that demerit points accumulating under automated conditions will not have been subject to human review. Rather, it is anticipated that people using automated interfaces will receive demerit points when, according to predetermined system rules, they have not provided prior notice of a reasonable excuse. These predetermined rules are already used to a large extent in jobactive systems, such that a worker can only use the options on a drop list to select a reason, rather than decide if the actual reason in the person’s circumstances was reasonable/unreasonable.

One imagines that in digital employment services, job seekers will select from options lists pre-coded with decisions about whether the reason for non-compliance was reasonable or not, and this will determine whether they receive a demerit point((It is unclear at this stage what role will the Digital Contact Centre will play in following up payment suspensions and demerit points that may occur in this situation.)).

Thus, there will be a shift from employment service provider staff administering these rules, to individuals unknowingly administering the rules according to policies made by the Departmental Secretary and its interpretation into system business rules by IT systems designers.

Before demerit points accrue to financial penalties, there is human review in the form of “Capability Interview and Assessment“, either by the job service provider, DESE or Services Australia. At this stage in the process a human decision-maker should review job plan requirements to ensure they are ‘suitable’. Once this decision is made, demerit points may be reset to zero if the requirements are not suitable. It should be noted that this may mean the payment suspensions that triggered the demerit points may have already been imposed, despite job plan requirements not being suitable.

Who is making the decisions?
In response to questions during the Senate inquiry into the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021, DESE explained its view that job plan decisions are not automated, as a human being (i.e. the person who selects the options in the job plan, whether it is an employee of a contracted provider, DESE, or an individual online), makes the decision about the final job plan content.

However, the potential content of a person’s job plan has been predetermined by:
a) The policy settings as decided by the Secretary, as published in guidelines
b) The system designer’s interpretation of these decisions and hard-wiring of business rules in the App.

This is also the case with automated decisions about payment suspensions and reasonable excuses.

What can be reviewed?
In the NESM, as indicated above, relevant social security decisions relate to whether job plan requirements are suitable for a person, whether there is a reasonable excuse for not being able to meet them, and in the absence of a suitable job plan or reasonable excuse, whether there has been a mutual obligation failure. There may also be a role for reviewing whether adequate notification was provided, particularly if job plan requirements were unsuitable.

Secondly, review decisions could also focus on whether reasonable excuse and prior notice were provided.

It would be interesting to explore whether a failure to record or report compliance on time, before payment suspensions take effect, is a mutual obligation failure.

Challenging decisions made through the NESM will be essential to the accountability of the new system.