Jones; Secretary, Department of Family and Community Services

[2002] AATA 1345

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2002] AATA 1345

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1620

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And JOHN ANTHONY JONES

Respondent

ORDER

Tribunal Mr M J Sassella, Senior Member

Date26 November 2002

PlaceSydney

Decision

The tribunal rejects the applicant’s request for a stay of the decision under review in these proceedings.

The tribunal requests the tribunal registry to use its best endeavours to list this matter for a hearing as soon as possible after the preliminary conference on 14 January 2003.

[SGD] Senior Member

EXPLANATORY NOTES

26 November 2002 Mr M J Sassella, Senior Member

1. Section 41 of the Administrative Appeals Tribunal Act 1975 provides as follows in relation to the implementation of a decision under review:

“Operation and implementation of a decision that is subject to review

41(1)    Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

41(2)    The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the "relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”

2.      This has the effect in the present application that the decision of the Social Security Appeals Tribunal (“the SSAT”) in Mr Jones’s favour must be implemented unless the Administrative Appeals Tribunal (“the tribunal”) grant a stay.  This would have the effect that Mr Jones has qualified for social security payments as of 20 September 2002. 

3.      It is well settled in case authorities such as ReCommonwealth Banking and Iannello (1988) 15 ALD 418 (Deputy President Nicholson) that the tribunal, in considering a stay request, should consider:

(a)  any hardship which a party to the review may suffer by reason of the grant or refusal of a stay;

(b)  the likelihood of recovery by the Commonwealth of moneys to be paid under the determination sought to be stayed; and

(c)  the prospects of success of the application for review of the determination in question. 

4.      The applicant argued for the stay on the following grounds:

·     The Secretary has a strong case as the source of the respondent’s hardship was not fully addressed by the SSAT.

·     The respondent’s family is not in great hardship.  Mrs Jones earns $735 pfn.  The family receives $448.60 pfn in Family Tax Benefit.  A son, Benjamin, works and contributes to the household.  There is a “granny flat” at the rear of the house that could be rented out.

5.      The respondents provided the following arguments:

·     Mrs Jones’ job ceases on 20 December 2002.  It will resume when the childcare centre at which she works attracts enrolment of 24 children in the new year.  This may take some months to occur. 

·     The respondent’s son, Benjamin, works as a shower screen installation expert.  He is only a little over 17.  He pays no board but assists by buying food for the family when other family funds are low.

·     The granny flat cannot be leased out for legal reasons which seem to relate to planning permission or zoning.  Benjamin lives in that flat.  The family home is 2BR.  There are two other children in the family: Chris, aged 14, and Jonathan, aged 11.

·     The respondent’s family’s monthly income is $2,000 net.  The respondent family’s outgoings are some $2,200 a month as per a list provided and addressed under oath.  They have outstanding credit card balances of some $5,000.  They owe $4,500 in land rates related to their house.  This was a debt they inherited with the property when Mr Jones’s mother died last year.  They were unaware that the rates were in arrears.  Their water rates are six months and $573 in arrears and electricity is $250 in arrears.

·     The respondent wishes to receive a payment allowing him to access job training initiatives.  He is very keen to retrain within his physical capacities. 

6.      The tribunal found as follows in relation to the criteria for granting or refusing a stay:

(i)Grant of the stay would cause financial hardship to the respondent and his family.  This is especially so as Mrs Jones’ income will cease in a few weeks’ time.  The tribunal accepts the respondent’s evidence as to that matter, the income producing potential of the granny flat and son Benjamin’s capacity to pay any meaningful sum of regular money.

(ii)The respondent is more likely than not to be able to repay any money that might later found not to have been payable.  Mrs Jones explained that the family has been able over the years to find ways to repay loans and debts. 

(iii)The tribunal considers the applicant’s likelihood of success in the ultimate appeal to be reasonable but not overwhelming.

7.      All things considered, the tribunal considers that at present the better decision would be to allow the SSAT decision to operate pending the outcome of the tribunal proceedings.