McAuliffe v Secretary, Dept of Social Security

The Administrative Appeals Tribunal (AAT) had affirmed a decision by the Secretary of the Department of Social Security to refuse the applicant, Mr. McAuliffe, an age pension. Mr. McAuliffe sought judicial review of the AAT's decision in the Federal Court of Australia.

The central legal issue before the Federal Court was whether the AAT had erred in law by failing to consider, or adequately consider, the applicant's claim that he was a "person in receipt of a pension" for the purposes of section 39(1)(a) of the *Social Security Act 1991* (Cth). This section deals with the circumstances in which a person is not eligible for an age pension.

The Court found that the AAT had misinterpreted section 39(1)(a) by focusing solely on whether Mr. McAuliffe was receiving a pension from the Department of Social Security at the time of the AAT's decision, rather than considering whether he had been in receipt of a pension from any source at any relevant time. The AAT's reasoning had been based on an overly narrow construction of the phrase "in receipt of a pension," failing to give it the broad meaning that the Full Federal Court had previously indicated was appropriate in *R v Social Security Appeals Tribunal; Ex parte Toop*. The Court held that the AAT had therefore made an error of law.

The Federal Court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination according to law.