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

The matter before the Tribunal concerned an application by the Secretary of the Department of Social Services for a stay of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had set aside an earlier decision that rejected Mr Carey's claim for a Disability Support Pension (DSP) and remitted the matter for reconsideration, directing that Mr Carey satisfied the eligibility criteria for DSP from his date of claim in November 2016. The Secretary sought to stay the operation of the AAT's decision, which would prevent Mr Carey from receiving any DSP payments pending the outcome of the Secretary's substantive application for review. Mr Carey opposed this application.

The primary legal issue before the Tribunal was whether to grant a stay of the AAT's decision and, if so, the extent to which that stay should operate. The Tribunal was required to consider the relevant factors for granting a stay, particularly in the context of potential financial hardship for Mr Carey and the respondent's difficulty in repaying any debt that might arise if the stay were not granted and Mr Carey were subsequently found ineligible. The Tribunal also had to assess whether a stay order would secure the effectiveness of the hearing of the substantive application.

In determining the application, the Tribunal considered the submissions of both parties and the oral evidence provided by Mr Carey. The Tribunal acknowledged Mr Carey's financial hardship and the potential for him to incur debt if ongoing payments were not made. However, the Tribunal also recognised the Secretary's position regarding the potential for overpayment and the need to repay arrears. Consequently, the Tribunal decided to grant a stay order in relation to arrears but refused to grant a stay order for ongoing payments, thereby allowing Mr Carey to receive his DSP entitlements while the substantive review proceeded.