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

The Administrative Appeals Tribunal considered a dispute between an applicant, Mr. Fry, and the Secretary of the Department of Social Services concerning the cancellation of Mr. Fry's Age Pension. The pension had been suspended due to a failure to provide requested information, which was handled by Mr. Fry's appointed nominee. The core of the dispute revolved around whether the Department had adequately notified Mr. Fry, or his nominee, of the information request before proceeding with the suspension.

The Tribunal was required to determine whether the decision to suspend Mr. Fry's Age Pension was reasonable and proportionate, particularly in light of the fact that the Department had not sent the notice of the information request directly to Mr. Fry's nominee. This raised questions about the proper exercise of the discretion granted to the Secretary under section 81 of the *Social Security Act 1991* (Cth) to cancel or suspend payments for non-compliance with notices.

The Tribunal reasoned that section 81 of the Act confers a discretion, not an obligation, to cancel or suspend a social security payment. Drawing on the principles articulated in *Gidaro v Department of Social Security*, the Tribunal emphasised that the exercise of this discretion must be reasonable and proportionate. The Tribunal noted that suspension is intended as a lesser measure than cancellation and should be for an appropriate period, considering the vulnerability of aged pensioners. In this instance, the Tribunal found that the Department's actions, specifically the failure to ensure the notice reached the nominee, meant the suspension was not a reasonable or proportionate exercise of its discretion. The Tribunal concluded that the reviewable decision to suspend the pension was set aside and substituted with a decision that the suspension was not justified.