Coffey v Secretary, Department of Social Security

The Administrative Appeals Tribunal (AAT) had affirmed a decision of the Secretary, Department of Social Security (the respondent) to refuse the applicant, Ms Coffey, an age pension. Ms Coffey sought judicial review of the AAT's decision in the Federal Court of Australia.

The primary legal issue before the Full Federal Court was whether the AAT had erred in law by failing to consider, or adequately consider, the applicant's claim that she was a "person in receipt of a pension" for the purposes of s 1074 of the *Social Security Act 1991* (Cth) at the relevant time. This involved determining the proper interpretation of that provision and whether the AAT had applied the correct legal test in assessing the applicant's circumstances.

The Court held that the AAT had indeed erred in law. Gummow and Hayne JJ reasoned that the AAT had misinterpreted s 1074 by focusing on whether the applicant had a *right* to receive a pension, rather than whether she was *in receipt* of a pension. They emphasised that the statutory language indicated a factual state of receipt, not a legal entitlement. The AAT's failure to properly consider the evidence relating to the applicant's actual receipt of payments, and its misapplication of the legal test, constituted an error of law.

Consequently, the Full Federal Court set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.