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

This matter concerned an application by Ms Kenyon for a stay order pending the review of a decision by the Secretary of the Department of Social Services. Ms Kenyon sought to stay the implementation of the decision, which would likely result in the cessation of her disability support pension payments and the creation of a debt to the Commonwealth. She argued that she would suffer great hardship if the payments ceased, being unable to afford household bills and medical expenses, and potentially having to move house.

The Tribunal was required to determine whether it was desirable to make a stay order under s 41(2) of the *Administrative Appeals Tribunal Act 1975*. In considering this, the Tribunal had regard to several factors, including the prospects of success of Ms Kenyon's substantive application, prejudice to the parties, the public interest, and the hardship Ms Kenyon might suffer. Ms Kenyon contended that her medical conditions were not fully diagnosed, treated, or stabilised at the relevant date, and that she was seeking legal advice. The Tribunal noted that medical reports subsequent to the relevant date generally carry less weight and that without evidence of full diagnosis, treatment, and stabilisation, it was unlikely the substantive case would succeed.

The Tribunal acknowledged that Ms Kenyon would face financial hardship if her payments ceased, but found her circumstances would be worse if she also had to repay a debt. However, the Tribunal also considered the public interest, accepting the submission that it was undesirable to pay public monies to a person who may not be entitled, and that the administrative costs of debt recovery were a material consideration. On balance, the Tribunal concluded that it was not desirable to make a stay order.