Lake and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 776

Administrative Appeals Tribunal

ORDER AND REASONS FOR ORDER [2008] AATA 776

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3646

GENERAL ADMINISTRATIVE DIVISION		)
Re		STAFFORD LAKE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

ORDER

Tribunal M J Carstairs, Senior Member

Date15 August 2008

PlaceBrisbane

Order Under s 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal hereby orders that the operation and implementation of the decision under review be stayed, and further provides that the applicant is to be paid disability support pension at the partnered rate, pending the hearing and determination of the decision under review, or further order of this Tribunal.

.....................[sgd].........................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – rate of disability support pension varied by Social Security Appeals Tribunal decision – subsequent cancellation – application to stay – effect of stay on implementation decision under review – stay granted

Social Security Act 1991 (Cth), s 24
Administrative Appeals Tribunal Act 1975 (Cth), s 41

Civil Aviation Safety Authority v Hotop and Anor (2005) 145 FCR 232
Holzberger and Secretary, Department of Health and Ageing [2006] AATA 621

REASONS FOR ORDER

15 August 2008 M J Carstairs, Senior Member      

1.      On 15 August 2008 at the request of the applicant, Mr Stafford Lake, I stayed the implementation of a decision of the Social Security Appeals Tribunal (the SSAT) which was the subject of Mr Lake’s application for review to this Tribunal.  On 21 August 2008 the respondent, the Secretary of the Department of Families, Housing, Community Services and Indigenous affairs, requested written reasons for my decision to grant that stay. These are those reasons.

2.      The background to Mr Lake’s application appears in the decision of the SSAT of 6 May 2008.  Mr Lake is a New Zealand citizen.  In 1998 he married his wife who is a citizen of the Philippines.  Ms Lake now resides in the Philippines and has never resided in Australia. She has the care of two children, Mr Lake’s daughter and another child who has been adopted by the couple.

3. From April 2001 until December 2007 Mr Lake received Centrelink benefits at the single rate, despite being married, because the Secretary determined to exercise the discretion in s 24 of the Social Security Act 1991 (the Act) in his favour, that is, the Secretary determined that Mr Lake was not to be treated as a member of a couple for the purposes of the Act.

4.      On 12 December 2007 Centrelink determined that Mr Lake should be paid disability support pension (which he had been receiving since July 2005) at the partnered rate.  That decision was affirmed on internal review. Mr Lake sought a review by the SSAT.  On 6 May 2008 the SSAT decided to set aside the decision under review and send the matter back to Centrelink for reconsideration in accordance with directions that Mr Lake should have been paid disability support pension at the partnered rate from 19 July 2005, that Centrelink further investigate and determine the level of Ms Lake’s income and the value of her assets, and that Centrelink recalculate Mr Lake’s rate of disability support pension from 19 July 2005 taking into account the combined income and assets of both Mr and Ms Lake.

5.      The result of this decision was that Centrelink wrote to Mr Lake requiring him to provide information regarding his wife’s assets and income from 19 July 2005. He was told that the information was to be supplied within 14 days.

6.      The information was not supplied within the time required or within the period of a short extension granted by Centrelink to Mr Lake. As a result Centrelink suspended payment to Mr Lake. Mr Lake had no other source of income.  As Mr Lake explained at the hearing he had visited his local Centrelink office and told them that he would be going to see his wife in the Philippines and not returning until the about the end of August.  He did this some few days after the Social Security Appeals Tribunal hearing, about 8 May 2008. 

7.      Social security payments can continue for short periods of absence, where recipients tell Centrelink that they are going out of the country.  This explains some of the mix-up, and Mr Lake said that he had other problems trying to provide the information that Centrelink was asking for.  I do not need to decide these particular matters, but I did form the impression that Mr Lake has been trying to provide the information now needed as a result of the remittal directions made by the Social Security Appeals Tribunal.  It can fairly be observed that the directions of the Social Security Appeals Tribunal are quite broad in ambit.

8.      As I understand the respondent’s case for opposing the stay it is this: the decision that Mr Lake seeks stayed is the decision taken in August 2008, cancelling his disability support pension, which, as the respondent pointed out, is not the decision that is under review before this Tribunal.   That is true.  But it is important to understand the cancellation decision as part of a continuum of decision-making following on from the decision of the Social Security Appeals Tribunal.  Indeed as Centrelink’s letters to Mr Lake plainly state, they were seeking information from him in order “to implement the [Social Security Appeals Tribunal] decision”.

9. In regard to the matters here it is important to appreciate the wording of the power in s 41(2) of the Administrative Appeals Tribunal Act 1975.  It is to:

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 considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

10.     The section has rather more flexibility in its operations than was once supposed, as is appreciated on a reading of the decision of Siopis J in Civil Aviation Safety Authority v Hotop and Anor (2005) 145 FCR 232. That decision is authority for the proposition that the power extends to making an order having positive effect. The decision has been applied in any number of situations since – see for instance Holzberger and Secretary, Department of Health and Ageing [2006] AATA 621.

11.     It was against this background that I was required to determine the application to stay. The legal principles in operation are well known and need not be recited. The discretion falls to be exercised where it is appropriate to do so to secure the effectiveness of the hearing and determination of the application for review. The present was such a case, in my view, given that Mr Lake had no other source of income and had a medical condition that precluded him from seeking employment.

12. The case that Mr Lake would seek to advance at hearing is plainly arguable. The factor that Ms Lake resides in the Philippines whilst Mr Lake resides in Australia seems to me to be a factor that might, in appropriate circumstances, warrant the exercise of the s 24 discretion as, apparently, it had up until December 2007. If Mr Lake succeeds at hearing, the decision of the SSAT, including the direction regarding reconsideration and investigation, will be set aside.

13. As the words of s 41(2) of the Administrative Appeals Tribunal Act 1975 make plain the power is to be exercised for the purpose of securing the effectiveness of the hearing and determination of the review.  I was satisfied that it ought to be exercised here.  It is difficult to perceive how an unrepresented social security applicant can adequately prepare his case when all income support has been removed from him in advance of the hearing, for reasons related to implementing the decision under review. 

14.     The balance of convenience clearly favoured the grant of a stay. Mr Lake had no income and no means of obtaining income. He agreed at the hearing that he could live on disability support pension at the partnered rate pending the hearing and determination.  If, ultimately, Mr Lake is unsuccessful any overpayment that results can be readily recovered by deductions from future entitlements.

15.     However, as I said at the hearing, the parties ought do all that they can to bring the hearing on as soon as possible.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:         ...............................[sdg].................................................
  Joan Torbey, Associate

Date of Hearing  15 August 2008
Date of Written Reasons          29 August 2008
Date of Decision  15 August 2008
The applicant was self-represented
Advocate for the Respondent   Ms R Knight, Centrelink