Benham and Secretary, Department of Social Services (Social services second review)

This matter concerned an application for a stay of a decision by the Secretary of the Department of Social Services to cancel Ms Benham's disability support pension. The application was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether to grant a stay of the cancellation decision pending the final determination of Ms Benham's application for review. This required the Tribunal to consider the principles governing the exercise of its discretion to grant a stay, including the prospects of success of the appeal, prejudice to the respondent, the potential for financial hardship, the public interest, and whether the appeal might be rendered nugatory.

The Tribunal noted that the default position is that a decision has effect upon being made, and an application for review does not automatically halt its operation. Drawing on established case law, the Tribunal stated that a stay should only be granted in special circumstances where the appeal might otherwise be rendered nugatory. The Tribunal also considered the need to secure the effectiveness of the hearing and determination of the application for review. While not conducting a preliminary hearing, the Tribunal acknowledged that the strength of the applicant's case could weigh in favour of or against granting a stay. The Tribunal also referred to previous decisions where stays had been granted in cases of social security benefits cancellation to prevent serious financial hardship.

Ultimately, the Tribunal granted a stay in respect of ongoing payments of the disability support pension, finding that this would facilitate Ms Benham's capacity to prepare for and participate in the review. However, the stay did not extend to arrears that had accrued since the cancellation of the pension. The Tribunal also requested that the hearing of the matter be expedited.