Daly; Secretary, Department of Employment and Workplace Relations

[2006] AATA 787

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 787

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/117

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And ADAM DALY

Respondent

INTERLOCUTORY DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date14 September 2006

PlaceHobart

Decision The application to stay the decision of the Social Security Appeals Tribunal dated 6 July 2006 is not granted.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - SSAT decision - interlocutory application - stay application - whether desirable to grant stay - hardship issues - prospects of appeal success - stay refused

Re Commonwealth Banking Corporation and Iannello (1998) 15 ALD 418

Social Security Act 1991 – s94(1)(b)

REASONS FOR INTERLOCUTORY DECISION

14 September 2006 Associate Professor B W Davis AM (Part-Time Member)   

1.      DEWR has sought a stay of the decision of the SSAT dated 6 July 2006, setting aside Centrelink’s decision of 10 March 2006 to cancel Mr Adam Daly’s DSP (Disability Support Pension).

2.      In deciding whether it is appropriate to grant the stay, the interests of the parties are relevant considerations (Commonwealth Banking Corporation and Iannello (1998) 15 ALD 418).

3.      The applicant DEWR claims there are three issues to be considered:

(a)      The respondent (Mr Andrew Daly) might suffer financial hardship if the Department succeeded in its appeal against the SSAT decision, since all of the DSP he received between the date of the SSAT decision and the eventual AAT decision would have to be repaid.  This might amount to a substantial sum.

(b) The SSAT had insufficient evidence for its decision and the requirements of Section 94(1)(b) of the Social Security Act 1991 have not been met.

(c)       On the merits of the case, the potential loss of taxpayer dollars and the need to provide a sound and proper basis for final AAT determination, a stay is appropriate at this stage of proceedings.

4.        Counsel for the respondent claimed the SSAT decision was properly made and Mr Daly was currently entitled to be paid DSP.  He needed the money for medical treatment and was prepared to take the risk of receiving DSP now as he considered he head good prospects of a successful appeal against the decision to cancel his DSP.  If a debt subsequently arose he would meet instalments from part-time earnings and any other kind of Commonwealth benefits received.  The risk to the taxpayers was small.

5.        Having considered all of the above evidence the Tribunal has decided on balance the stay should not be granted for the following reasons:

(a)      The Department did not advance any suggested time limit for the stay, so if granted the period would be open-ended;

(b)      DEWR’s claim the SSAT decision was incorrect may or may not be true, but this can only be resolved by a full AAT hearing and should not be prejudged now;

(c)       Mr Daly has indicated willingness to bear risk if he accepts DSP now and given that the SSAT decision currently stands, is entitled to be paid DSP;

(d)      If a debt subsequently arises, the respondent has argued he can meet instalments via personal income and the high likelihood of some Commonwealth benefits.  This argument is plausible.

(e)      The Tribunal is not in a position to judge which party has the better prospects of achieving success in the appeal against the SSAT decision;  both appear to have some prospect of success.

(f)       In the view of the Tribunal it is in the interests of both parties that the matter should be progressed to full AAT hearing as soon as possible.

Decision

6.        The stay is not granted.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing  13 September 2006
Date of Decision  14 September 2006
Counsel for the Applicant         Ms M Baulch
Solicitor for the Applicant          Centrelink Legal Services
Counsel for the Respondent     Mr D Sikk
Solicitor for the Respondent     Hobart Community Legal Service