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

This matter concerned an application for a stay of a decision made by the Secretary of the Department of Social Services to cancel Mr Nguyen's disability support pension. The application was heard by A Poljak SM.

The primary legal issue before the court was whether to grant a stay of the cancellation decision, which required an assessment of the prospects of success of Mr Nguyen's substantive application and whether prejudice would be suffered by either party if a stay were not granted. The court also considered the relevant legislative framework for assessing eligibility for a disability support pension, including the Social Security (Administration) Act 1999 (Cth) and the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011.

The court reasoned that to qualify for the disability support pension, Mr Nguyen needed to demonstrate impairments rating 20 or more points under the Impairment Tables and a continuing inability to work. The Secretary contended that Mr Nguyen's combined impairment rating for poliomyelitis would not reach 20 points, and that his mental health condition could not be rated as it was not fully diagnosed by a clinical psychologist or psychiatrist at the date of cancellation. The court found that the substantive matter did not have great prospects of success, which weighed heavily against granting a stay. Furthermore, the court considered that it was not in the public interest to provide payments that were not due, and that granting a stay risked Mr Nguyen incurring a substantial debt.

The application for a stay was refused. The court noted that Mr Nguyen had the option to test his eligibility for other Centrelink payments, which mitigated the potential for financial hardship pending the final determination of the substantive matter.