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

The Administrative Appeals Tribunal considered an application for a stay of a decision concerning the cancellation of a Disability Support Pension (DSP) and the recovery of substantial overpayments. The applicant, Ms Chen, sought to have the cancellation of her DSP and the associated debts suspended pending the determination of her substantive appeal. The respondent was the Secretary of the Department of Social Services.

The primary legal issue before the Tribunal was whether to grant a stay of the decision under review. This required the Tribunal to consider whether Ms Chen was eligible for arrears of her DSP from the date of cancellation and for ongoing payments until the final determination of her appeal. The Tribunal was also implicitly required to weigh the potential prejudice to the respondent against the potential prejudice to the applicant if a stay were granted or refused.

In its reasoning, the Tribunal acknowledged the respondent's legitimate interest in protecting public revenue and the integrity of the social security system. However, it found that any disadvantage to the respondent from granting the stay would be relatively insubstantial. Conversely, the potential prejudice to Ms Chen, particularly in light of the significant debts raised against her, was considered more significant. The Tribunal applied principles governing the grant of a stay, focusing on the balance of convenience and the potential for the appeal to be rendered nugatory.

The Tribunal ordered that the applicant's request for a stay of the decision be granted. Specifically, it ordered that any arrears of DSP be paid to Ms Chen from the original cancellation date of 15 March 2018, and that ongoing DSP payments continue until the Tribunal's final decision on the substantive application.