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

This matter concerned an application for review of a decision by the Administrative Appeals Tribunal (AAT) regarding the applicant's eligibility for a Disability Support Pension (DSP). The applicant, Mr Linck, had been diagnosed with terminal cancer and had travelled to Germany for medical treatment. A delegate of the Secretary of the Department of Social Services had determined that DSP was not payable to the applicant during his absence from Australia, a decision affirmed by an Authorised Review Officer and the Tribunal on first review. The applicant subsequently applied for a second-tier review by the Tribunal, but passed away before the hearing.

The primary legal issues before the Tribunal were whether its jurisdiction to continue with the review was extinguished by the applicant's death, and if not, what procedural steps were required to allow the proceedings to continue. This involved considering the interplay between the Social Security Act 1991, the Social Security (Administration) Act 1999, and the Administrative Appeals Tribunal Act 1975, particularly in circumstances where an applicant dies during Tribunal proceedings. The Tribunal was required to distinguish between the statutory entitlement to the DSP and the personal right to seek merits review.

The Tribunal reasoned that the AAT Act does not explicitly set out the procedure to be followed when an applicant dies during proceedings. Therefore, it was necessary to examine the relevant legislation to determine the statutory entitlement, its extinguishment, and devolution, as well as the legislative scheme for merits review and the Tribunal's procedural powers. The Tribunal noted that the DSP entitlement itself was distinct from the person who applied for review. The portability provisions of the Social Security Act, which formed the basis of the original decision, allowed for a maximum portability period of 28 days, extended to four weeks for temporary absence for eligible medical treatment not available in Australia.

The Tribunal ultimately determined that the proceedings could continue. It noted that the applicant's father, Mr Linck, had been the applicant's authorised representative and had expressed a desire to continue the proceedings to seek a just outcome for the applicant. Given that there was no estate and no executor, the Tribunal accepted that the proceedings could proceed on the basis of the existing authorisation and the father's continued representation, aiming for a determination on the evidence presented.