Eaves; Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 803

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/671

GENERAL ADMINISTRATIVE DIVISION )
Re DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Applicant
And KHALI EAVES
Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date6 September 2001
PlaceMelbourne

Decision      The operation or implementation of a decision of the Social Security Appeals Tribunal made on 11 May 2001 be stayed until 28 August 2001.
  ....... Sgd. Mr J. Handley ......
  Senior Member
CATCHWORDS
Social Security - application for stay - respondent in custody in psychiatric facility - whether implementation of SSAT decision would expose respondent to a debt - consideration of respondent's circumstances - partial stay granted.

REASONS FOR DECISION

6 September 2001 Mr J. Handley, Senior Member

On 28 August a "partial" Stay was made affecting the operation or implementation of a decision under review.
On 29 August the Registrar of the Tribunal received a letter from the respondent's solicitors requesting a "statement of reasons" for the "decision".
I understand this to be a request for written reasons for the making of the Stay Order, which was opposed by the respondent's solicitor.
It is doubtful that there is any statutory obligation to provide written reasons. Section 43(2) of the Administrative Appeals Tribunal Act compels the Tribunal to give reasons either orally or in writing for its "decision". The "decision" contemplated by that sub-section is a decision within the meaning of sub-section (1) of section 43 where there is an affirmation, a variation or the setting aside of a decision under review.
The decision under review in these proceedings was not reviewed on 28 August. There was the hearing of an interlocutory application only. Whilst oral reasons for the making of the partial Stay Order were delivered on 28 August, I am prepared in any event to provide written reasons as if it were a "decision" as contemplated by s.43(2A).
In this application the applicant applies to review a decision of the Social Security Appeals Tribunal (the "SSAT") made on 11 May 2001. The SSAT then decided to "substitute a new decision that sub-section 1158(2) of the Social Security Act 1999 ("the Act") does not apply to Mr Eaves and to remit the application to the Chief Executive Officer of Centrelink in accordance with the Directions that Mr Eaves' claim for Disability Support Pension lodged on 5 December 2000 is to assessed" (sic).
Section 41(1) of the Administrative Appeals Tribunal Act 1975 provides that subject to the making of the Stay Order, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision. In effect the respondent is entitled to be paid Disability Support Pension ("DSP") in accordance with the decision made by the SSAT unless an order is made under s.41(2) to have it Stayed.
Mr Todd who appeared on behalf of the applicant submitted that the application could be distinguished from other decisions of the Tribunal and that the applicant believed that it had sound prospects of success (refer Department of Family & Community Services & Fairbrother 1999 AATA 580; Pardo & Department of Family & Community Services 2000 AATA 1105). It followed, he submitted, that in the event that the applicant was successful in the appeal to this Tribunal, any pension paid to the respondent would amount to an overpayment, which the applicant would seek to recover. The applicant therefore submitted that the potential of a debt should not be incurred by the respondent and the decision made by the SSAT should not be implemented.
Ms Delaney on behalf of the respondent submitted that the application was consistent with an earlier decision of the Tribunal. Indeed it was submitted that because there was consent between the parties that the applicant was not "convicted", and was not in a "prison", the only issue for determination was whether the applicant was undergoing a "period" of "rehabilitation".
These issues were important because the decision under review concerned the entitlement of the respondent to a DSP during the time where he has been committed to a period of custody in the Thomas Embling Hospital.
It was acknowledged that the respondent was committed for a period of 12 ½ years however it was submitted that he would be released at a much earlier date. It followed, consistent with this submission, that the whole of the period in custody could as a matter of law, amount to a 'period' of 'rehabilitation'.
It was submitted that the respondent presently receives $27 per week only whilst a resident at the Thomas Embling Hospital by way of an allowance from the hospital authorities. It was said that he had only between $100-$200 in savings and was required to provide and pay for his own toiletries and personal items. It was also submitted that he was in need of further clothing, which he needed to purchase, but was unable to do so because of the absence of a pension being paid. (It was learnt during this hearing that the applicant had not commenced payment of pension despite the order of the SSAT having been made in May).
Additionally it was submitted that the respondent has a dependent 4-year-old daughter but he is unable to provide for her. Further it was said that the respondent is presently undertaking year 12 education by correspondence and incurs certain costs and charges associated with the study.
Ms Delaney also submitted that the beneficial nature of the legislation dictated that the respondent be paid pension consistent with the order of the SSAT and that the application for a Stay should not be granted. She said that the failure to pay pension would impede the respondent's rehabilitation, which was also inconsistent with the beneficial nature of the Social Security Act.
I indicated to both representatives that I intended to make arrangements to list this application for a hearing thereby by-passing the Tribunal's usual pre-hearing procedures. This was because I had heard sufficient from both parties as to the nature of the application and had become aware - following other submissions that were made - that the matter could be brought on for hearing without undue delay. (The application has subsequently been listed for a hearing on 10 December).
I acknowledged that granting the Stay would cause economic hardship to the respondent yet at the same time the failure to grant the Stay might cause the respondent to incur a debt of considerable proportions in the event that the applicant succeeded in the review.
In the exercise of the discretion available under s.41(2) I decided to grant a partial Stay only. The decision made was to stay the operation or implementation of the decision of the SSAT until 27 August 2001 only, being the day before the stay application was heard. The effect of this decision is to cause the applicant to pay Disability Support Pension to the respondent from 28 August (consistent with s.41(1) of the AAT Act).
I made this decision because the quantum of the potential debt (if the applicant were successful in the review) would be reduced by pension not having to be paid between 11 May and 27 August. In the alternative whilst I heard that the respondent had considerable expenses, I heard nothing about him having debts. By deciding in effect that the respondent be entitled to pension from 28 August, it is anticipated that he will have funds sufficient to meet his day to day costs.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         .C. Irons .......................................
  Secretary
Date/s of Hearing  28 August 2001
Date of Decision  6 September 2001
Counsel for the Applicant        Mr M. Todd, Departmental Representative
Solicitor for the Applicant
Counsel for the Respondent    Ms S. Delaney
Solicitor for the Respondent

[2001] AATA 803

6 September 2001

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Standing

Judicial Review

Stay of Proceedings