QX2006/1; Secretary, Department of Employment and Workplace Relations
[2006] AATA 372
•28 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 372
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/37
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORPLACE RELATIONS Applicant
And
QX2006/1
Respondent
DECISION
Tribunal
Deputy President P E Hack SC and Ms M J Carstairs, Member
Date 28 April 2006
PlaceBrisbane
Decision The decision of the Social Security Appeals Tribunal of 6 December 2005 is affirmed.
....................Signed.................
Deputy President
CATCHWORDS
SOCIAL SECURITY – job search allowance – newstart allowance – disability support pension – application for benefits using a false identity – whether overpayment – waiver provisions s 1237AAD.
Social Security Act 1947 ss 140, 181
Social Security Act 1991 ss 1223, 1224, 1237AAD
Social Security (Administration) Act 1999
Earl Cowley v Countess Cowley [1901] AC 450
Lowe v Evans [1989] 1 Qd R 295
Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Director-General of Social Services v Hangan (1982) 45 ALR 23
Mulder and Secretary, Department of Family and Community Services [2000] AATA 452
Perks and Secretary Department of Family and Community Services [2000] AATA 671
Re Stark and Secretary, Department of Social Security (AATA 4762, 6 September 1988)
Dranichnikov v Centrelink (2003) 75 ALD 134
REASONS FOR DECISION
Date 28 April 2006 Deputy President P E Hack SC
Ms M J Carstairs, MemberSTATEMENT ON THE CASE
1.This case concerns claims made, and paid, for various Social Security benefits over a period in excess of 20 years by a man who claimed the benefits using an assumed identity. The applicant Secretary of the Department of Employment and Workplace Relations says that, because the respondent claimed benefits using an assumed identity he was not entitled to be paid those benefits and must repay them. That is so, it is submitted, even though the Secretary expressly concedes that if the respondent had applied for benefits in his birth name he would have received benefits of the type and in the amount that he in fact received.
2.Moreover, the Secretary contends that the respondent cannot benefit from the waiver provisions in s 1237AAD of the Social Security Act 1991 because he knowingly made a false statement, because he failed or omitted to comply with a provision of that Act and because the circumstances are not “special”.
FACTUAL BACKGROUND
3.The facts, as we find them to be, come from the T-documents and an affidavit filed by the Secretary (with leave) after the hearing. No oral evidence was given.
4.The respondent was born in March 1956. As long ago as June 1988 he commenced using another name – we will call that the assumed name. He obtained a learners permit in that name on 15 June 1988. In August 1988 he opened a bank account in that name. The account has continued to operate in that name since. In 1990 he was sentenced to a term of imprisonment in that name. In fact, so far as the material shows, from about 1988 the applicant no longer used the name he had been given at birth and used instead the assumed name.
5.The respondent’s explanation for this conduct is that he was part of a witness protection programme and that he assumed the new identity at the urging of, and with assistance from, an unnamed (but now deceased) member of the Victorian Police. It is neither necessary nor desirable for us to determine whether this, in fact, took place. We record however, that we are well satisfied that the respondent genuinely believed that he was at risk and assumed a new identity for that reason. Moreover, we are satisfied that the respondent did not assume a new identity for any nefarious reason. And because we accept that his beliefs are genuine we have taken steps to prevent identification of the respondent in these reasons.
6.In June 1992 the respondent was released from prison. On 5 June 1992 he executed a claim for special benefit and a separate claim for job search allowance. Both claims were made in the assumed name and both gave a date of birth in May 1953. They were lodged at the Townsville office of the Department of Social Security. No answer was provided to the question on the job search allowance claim form - “Full name at birth (if different from present name)”.
7.On 15 June 1992 the respondent executed, and lodged with the Mareeba office of the Department of Social Security, another claim for job search allowance, again, using the assumed name and the birth date in May 1953. On this occasion, in answer to the question about a different name at birth, he wrote the assumed name.
8.The respondent was paid an amount of $281.90 by way of special benefit for the period from 5 June 1992 to 11 June 1992. Between 12 June 1992 and 14 January 1993 the respondent was paid job search allowance in a total sum of $4,369.45.
9.On 18 January 1993 the respondent made a claim for “Newstart” allowance using the assumed name and the May 1953 birth date. Benefits of that description totalling $82,813.19 were paid to him from 15 January 1993 to 9 May 2002.
10.Finally, on 10 May 2002 the respondent lodged a claim for disability support pension. The claim was made in the assumed name with the May 1953 birth date. On this claim form the “No” box was ticked to the question “Do you, or have you ever had, any other name(s)? e.g. maiden name, alias, ethnic, skin [sic] or clan name.” The respondent was paid disability support pension totalling $34,987.54 in the period from 10 May 2002 to 21 April 2005.
11.In June 2004, as a result of information received, Centrelink commenced an investigation into the respondent’s identity. He was interviewed by Centrelink officers on 14 October 2004 and provided his “real” name and family details that corresponded with the details that had been determined in the course of the investigation. It was noted that when shown details of where his “real” name was recorded he “appeared genuinely concerned that his real name appeared on these records”. In the course of that interview he made reference to the reason for having adopted the assumed name and identity.
12.In late April 2005 following the investigation Centrelink cancelled payment of disability support pension to the respondent in his assumed name. He was invited to lodge an application using his “true and correct” name. He did so and it was granted with effect from 5 May 2005.
13.On 2 June 2005 overpayments were raised against the respondent in a total in excess of $120,000. The determinations were affirmed on reconsideration by the original decision maker on 6 June 2005 and on further review by an Authorised Review Officer on 21 July 2005. That latter official increased the overpayment by $1,107 to take into account an earlier error in calculation.
14.The respondent sought a review of the decision in the Social Security Appeals Tribunal. On 16 December 2005 that Tribunal set aside the decision and determined that the respondent had not been overpaid.
15.The Secretary now seeks a review by this Tribunal of the decision of the Social Security Appeals Tribunal.
16.We note for completeness, that there is no issue about the amount of the overpayment; if the Secretary’s contentions are accepted the respondent will be obliged to repay a total of $122,452.08, presumably by way of deductions from the disability support pension now being paid to the respondent in what the Secretary regards as being his “correct” name. Even at the rate of $50.00 per week the respondent will be repaying this debt for the remainder of his life.
THE LEGISLATION
17.Whilst the legislation has altered over the period in question and while there are differences in the legislation governing the various benefits there are three features of the legislative scheme that need to be examined – the qualifying criteria, the procedural provisions and the overpayment provisions.
18.First are the qualifying criteria. In June 1992 special benefit was payable at the discretion of the Secretary to person to whom no other social security pension or benefit was payable: see s 729 of the Social Security Act.
19.When the respondent applied for, and was granted, job search allowance s 513 of the Social Security Act provided, subject to irrelevant exceptions, that,
“a person is qualified for a job search allowance in respect of a period if…”
certain criteria were satisfied. Expressed broadly, the person had to satisfy the Secretary that throughout the period the person was unemployed and looking for work. The person was also required to be at least 16 years but below the pension age throughout the period and to be an Australian resident present in Australia.
20.Section 593 of the Social Security Act, which governed newstart allowance in January 1993, was in similar terms. By virtue of it, a person qualified for a newstart allowance in respect of a period if certain objective criteria were satisfied.
21.Similarly, by virtue of s 94 of the Social Security Act, a person was qualified for disability support pension if the person had a physical, intellectual or psychiatric impairment at a prescribed level and could meet other objective criteria specified in the section.
22.The precise terms of these sections have no particular importance in the present case for it is not in issue that the respondent satisfied the qualifying criteria for each of the special benefit, job search allowance, newstart allowance and disability support pension.
23.The next group of provisions that need be noticed are the procedural requirements – s 41 (until its repeal in 1999) of the Social Security Act, as a general provision covering all types of payments, ss 551 to 553 of the Social Security Act in the case of job search allowance, ss 740 to 742 of the Social Security Act in the case of special benefit and ss 635 to 637 of the Social Security Act in the case of newstart allowance.
24.Section 41 provided that before a social security payment was payable to a person the person had to be qualified for the payment and there must be nothing in the Act that would make the payment not payable.
25.A person who wanted to be granted a job search allowance had to make a “proper claim” for that allowance: s 551 of the Social Security Act. A “proper claim” was one in writing and in accordance with a form approved by the Secretary: s 552 of that Act. Section 553 of that Act governed the manner of its lodgement.
26.In the case of newstart allowance and special benefit, ss 635 to 637 and ss 740 to 742 respectively of the Social Security Act, imposed requirements that were relevantly identical including the requirements of s 636 and s 741 for a claim to be made in writing in accordance with a form approved by the Secretary.
27.By May 2002 when the respondent made a claim for disability support pension the procedure for the making of any claim for a social security payment (which includes a disability support pension) was governed by Div. 1 of Part 3 of the Social Security (Administration) Act 1999. Section 22 of that Act required a claim to be made in accordance with that Division. A claim had to be in writing and in accordance with a form approved by the Secretary: s 16, Social Security (Administration) Act.
28.There was some discussion in the course of the hearing on the question of whether the forms used in the present case were forms that had been approved by the Secretary. After the hearing an affidavit of Mr R J McQuinlan that sought to address the issue was filed. On the view we take, it is not necessary for us to reach a concluded view on the matter however we record that we are not satisfied on the present state of the evidence that the forms had been approved by the Secretary.
29.The final provisions that need be considered are the overpayment provisions - s 1224 of the Social Security Act up until 30 June 2001 and s 1223 of that Act thereafter.
30.As far as is presently material, s 1224 was in these terms:
If:
(a) an amount has been paid to a recipient by way of social security payment; and
(b) the amount was paid because the recipient or another person:
(i) made a false statement or a false representation; or
(ii)failed or omitted to comply with a provision of the social security law or this Act as in force immediately before 20 March 2000 or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth.
31.On and from 1 July 2001 overpayments were governed by s 1223 of the Social Security Act which, materially excerpted, provided:
(1) Subject to this section, if:
(a) a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
….
(b) the person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c) the payment was not payable;
(d) the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
…
THE CONTENTIONS OF THE PARTIES
32.Mr Logan SC, who led Mr Marks of Counsel for the Secretary, submitted that there was a debt under s 1224 of the Social Security Act, which continued after the repeal of s 1224, in the new provisions in s 1223 of the Act. The primary argument advanced for the Secretary was put forward using this process of logic:
(a) the claims made embraced a proposition that a person, whose true name was the assumed name and whose true date of birth was in May 1953, existed;
(b) that person did not exist;
(c) in each claim a statement was made by the respondent that the information provided was correct;
(d) payments were made to him in reliance upon that statement;
(e) that statement was false in one or more particulars because the person in whose name (and birth date) the claim was made did not exist.
33.Thus, it is said, the amount paid was paid because the respondent made a false statement. Additionally, or alternatively, it was submitted that there were several individual false statements or representations. Alternatively it was submitted that the respondent failed to comply with the duty not to make knowingly or recklessly false statements.
34. Moreover, the Secretary contended, the respondent could not obtain the benefit of the waiver provision in s 1237AAD of the Social Security Act (the only provision relied upon by the respondent) because he knowingly made a false statement or false representation or failed to comply with a provision of the Social Security Act. And, the Secretary said, there was nothing “special” about the circumstances of the respondent’s case. We note, for completeness, that whilst in the written submissions the Secretary suggested that the case was one where s 1237AAD(c) required consideration that submission was withdrawn in the course of oral argument.
35.The respondent, for whom Ms Kidson of Counsel appeared, submitted that he did not make false statements or false representations by adopting a different name and that he was perfectly entitled to do so. Additionally it was contended that, in light of the Secretary’s concession that the respondent would otherwise have been entitled to identical payments had he applied in his birth name, any false statements or representations made did not bring about a payment of benefits to which the respondent was not entitled.
36.In addition it was submitted that there had to be, and there was not, a causal connection between the making of a false statement or false representation and the receipt of payments.
THE ISSUES
37.The issues that arise for determination seem to us to be these:
(a)was there a false statement or false representation (or misrepresentation)?
(b)was there a failure or omission to comply with (or a contravention of) the social security law?
(c)if either or both of (a) or (b) are answered in the affirmative, was a social security payment made because of (or as a result of) those matters?
(d)if there is a debt arising by operation of the statute ought it be waived in reliance on s 1237AAD of the Social Security Act?
FALSITY
38.So far as the respondent’s name is concerned it is, we think, well settled that one may assume and use any name provided its use is not calculated to deceive or to cause pecuniary loss: Earl Cowley v Countess Cowley [1901] AC 450, 460; Lowe v Evans [1989] 1 Qd R 295, 296; Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 at paragraph [29].
39.We note the interesting historic, and now probably archaic, distinction between Christian names (strictly so-called) and other forenames and the apparent difficulty in changing the former. We are relieved of the necessity of considering that issue given the applicant’s concession that, without evidence of baptismal or confirmation documents, no reliance can be placed in this case on any such distinction.
40.Given that the law is that the respondent was entitled to use another name it seems to us that it could not be said that the respondent, by adopting the assumed name and using it to claim social security benefits made a false statement or a false representation (the expression used in s 1224(1)(b)(i)) or a false statement or misrepresentation (the expression used in s 1223(1AB)(c)). He was entitled to assume a name other than that bestowed upon him at birth. He did not do so with any intention to defraud.
41.The position is, however, different so far as the respondent’s date of birth is concerned. The respondent can only ever have had one date of birth and it was immutable. The respondent was born in March 1956. Consequently it was a false statement for him to give a date of birth in May 1953 when completing the various claim forms between June 1992 and May 2002.
42.The Secretary relies, as well, upon two particular matters in the completed forms. The first is the failure to provide any answer to the question “Full name at birth (if different from present name)” in the June 1992 job search allowance claim form. That omission conveys a representation, which is false, that the name provided on the form was the name given to the respondent at birth. The Secretary relies also on the answer “no” given by the respondent to the question “Do you, or have you ever had any other name(s)?” in the claim for disability support pension. In circumstances where the respondent had had other names viz. those given to him at birth, that answer must be regarded as false.
43.It follows that in our view there has been a false statement (or representation) in relation to each of the claims made in the respects that we have outlined.
44.But we are unable to accept the Secretary’s primary argument. Whilst we can accept that the claim form conveyed the overall representation that a person with the assumed name with a birth date in May 1953 existed, we are unable to accept that that representation was false. Rather, there was a person who, for his own reasons, had adopted a different name and birth date. But there was only ever one person, however he described himself. We are not then persuaded that the claim form conveyed a false statement in this respect.
A BREACH OF THE SOCIAL SECURITY LAW
45.The Social Security Act, by s 1344(1), provided that a person must not, knowingly or recklessly, make a false or misleading statement in connection with a claim for a social security payment. There were similar provisions in ss 1345 and 1346 of that Act. Subsequently, with the enactment of the Social Security (Administration) Act these provisions were replaced by ss 212, 213 and 214 of that Act.
46.For the reasons we have already outlined we do not believe that it could be said that the respondent made a false or misleading statement in connection with a claim so far as his name was concerned. But we think, so far as the date of birth answers and the answer and non-answer to the questions regarding other names, that those answers involved the making of a false statement in connection with a claim. When interviewed by Centrelink officers the respondent accepted, at least implicitly, that he did not use his “real name” or his “real birth date”. Thus the false statements that we have identified are knowingly false.
CAUSATION
47.The critical issue in regard to debt provisions in the Social Security Act is causation – that is, whether the payments were made because of (or as a result of) the false statements and/or the failure to comply with the Social Security Act. (The parties agree that the change in language from because of to as a result of yields no different result). That issue is to be determined by reference to the proper construction of ss 1223 and 1224. No issue was raised by the Secretary placing reliance on s 1223 of the Act as it stood prior to 1999 – correctly in our view.
48.In a superficial way it might be said that, but for the false statements and the failure to comply the payments would not have been made. In that sense the payments would not have been made but for the fact that a claim form was completed. We do not think that the question of causation can be looked at so broadly. The falsity must be the causa causans (that is, the immediate cause) of the payment. Put another way, the falsity must be material.
49.The Secretary advances the case that the respondent adopted a false persona. We accept that it was a different persona from that which the respondent was born. But we are unable to accept the second limb of the argument which is that the payments made “resulted from the promotion to the Secretary of a persona with a particular name, date of birth and birth name.” As it seems to us, where what is to be identified is payment as a result of falsity, consideration must be given to the result had the true position been revealed. Here, the Secretary accepts that identical payments would have been made had the respondent applied using his birth name and his correct date of birth. In our view that comparison must mean that the payments were not made as a result of the falsity. Any falsity was not material to the payments made.
50.The operation of the concept of causation in this context seems to us to be no different from its operation in the area of negligence. In that context it has been held that causation is essentially a question of fact to be answered by reference to common sense and experience and one into which considerations of policy and value judgment necessarily arise: see March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.
51.In our view the falsity must be material to the decision to pay, that is, it must be shown that the payment would not have been made, either at all or in the same amount, had the true position been revealed. Thus we consider that the falsity must either go to a qualification issue or a payability issue. By qualification we mean the generic requirements for each payment type, either common, for example, residence, or specific, for example, age requirements for aged pension or impairment levels for disability support payments or sickness allowance. By payability we refer to the range of other matters set out in the Act, such as income and assets tests, the existence of waiting periods or the effects of compensation deferments.
52.If, for example, an applicant for an age pension gave a false birth date that conveyed that the applicant was of an age that qualified to receive that pension, then it may readily be seen that resulting payments were the result of the false statement regarding age. Similarly, where an applicant for job search or newstart allowance must be unemployed in order to qualify for those benefits, a statement by the applicant that the applicant was unemployed when, in truth, the applicant was employed would result in payments to which there was no entitlement. And where benefits are subject to an assets test, a failure to disclose assets may result in a payment greater than that which the recipient was in fact entitled. In each of these examples the falsity has resulted in a payment to which there was no entitlement, either in whole or in part.
53.The matter may be further illustrated by reference to the various claim forms. In many of them the applicant’s “home phone number” is sought. It seems most unlikely that a telephone number could have anything to do with the entitlement to social security benefits. No doubt the question is asked so that the applicant for benefit may be more readily contacted where the need to do so arises. Nonetheless it is information sought from an applicant even though it could not possibly affect an applicant’s entitlement. On the Secretary’s case an intentional misstatement of the telephone number of an applicant for benefits (for supposed reasons of privacy, for example) would constitute a false statement and a failure to comply with a provision of the Social Security Act because the applicant was knowingly making a false statement in connection with a claim for benefit. And, so the Secretary would seemingly contend, the resulting payments were made as a result of that falsity. That could not possibly be correct.
54.We consider that the proper construction of ss 1224 and 1223 requires that the falsity be productive of a payment to which there was no entitlement. That seems to us to give effect to the context in which it is being construed, that is, an evident legislative intention to protect the revenue and to make recoverable payments made to which there was no entitlement. Here, had the respondent provided his birth name and birth date, he would have received the same payment as those in fact received.
55.The approach that we favour is consistent with that adopted by the Full Court of the Federal Court in Director-General of Social Services v Hangan (1982) 45 ALR 23. In that case the Court was concerned with s 140(1) of the Social Services Act 1947 (Cth) which provided that:
Where…in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of...endowment…which would not have been paid but for the…failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction…as a debt due to the Commonwealth
Toohey J, at page 33 said:
In my view the Administrative Appeals Tribunal in the present case should have asked itself whether any of the payments of child endowment made to Mrs Hangan between 1972 and 1978 were made as a result of any failure on her part to comply with s 104A and whether any of those payments would have been made had there not been such a failure.
56.We mention that the Secretary provided us with reference to two decision of the Tribunal where the present issue arose. In Mulder and Secretary, Department of Family and Community Services [2000] AATA 452 Deputy President Blow QC said, at paragraph 34:
All of the payments in question were procured as a result of false statements and false representation. It makes no difference whether the recipient in such circumstances honestly, or even correctly, believed that he or she was entitled to receive such payments, and resorted to false statements and/ or false representation for the purpose of procuring what he or she believed to be a legal entitlement.
57.The present case is, we think, readily distinguishable. There is no question here of the respondent’s belief; rather it is conceded that the respondent received no more that that to which he would have been entitled had he applied using his “true” details.
58.The other case, Perks and Secretary Department of Family and Community Services [2000] AATA 671 is remarkable, not for its legal principle, but rather for the apparent concession of the Secretary, noted in paragraph 32 of the decision, that the overpayment, where numerous claims in false names had been made, should be “reduced by the amount equivalent to a single pension’s entitlement during the relevant period.”
59.Our research led us to the decision of Deputy President C J Bannon QC in Re Stark and Secretary, Department of Social Security (AATA 4762, 6 September 1988). In that case the Deputy President was concerned with an applicant who had stated that he had been born in New Zealand, when he had, in fact, been born in the United States of America. In considering s 181 of the Social Security Act 1947, which was in terms relevantly identical to s 140(1), set out in paragraph 54 above, the learned Deputy President regarded the materiality of the false statement as being critical. He said at page 9:
By concealing that he was an American, and by stating that he was born in New Zealand, in my opinion, the applicant’s forms of application did contain a material deception, because New Zealanders are allowed as a matter of Australian policy, to settle in this country without the granting of permanent resident status, whereas citizens of other countries are not. In my opinion, therefore, the making of false representations means that the Department of Social Security is entitled, pursuant to s. 181(1) of the Social Security Act, to recover the moneys paid to Mr Stark as a debt due to the Commonwealth.
60.The result is, we conclude, that the payments received by the respondent were not paid because of, or as a result of, any falsity because they would have been paid had the “true” position been disclosed. The falsity was not, in this case, material to the payment.
WAIVER
61.For completeness, and against the possibility that our earlier conclusions are held to be erroneous, we turn to the issue of waiver. Only s 1237AAD is relied upon by the respondent. Three elements must be satisfied,
· that the debt did not result wholly or partly from the debtor knowingly making a false statement or false representation or knowingly failing or omitting to comply, with a provision of the legislation: s 1237AAD(a);
· that there are special circumstances (other than financial hardship) that make it desirable to waive: s 1237AAD(b); and,
· that it is more appropriate to waive than to write off: s 1237AAD(c).
62.In light of the conclusions that we have earlier reached it seems to us that there were knowingly false statements made by the respondent, to the extent we have already found, and a knowing failure to comply with the legislation. The question then is whether the debt resulted from that falsity. In our view that cannot be said in the circumstances of this case, again for the reasons that we have given. If the payment was not the result of the falsity the resulting debt was not.
63.Special circumstances requires that there be circumstances that take the case out of the ordinary: see Dranichnikov v Centrelink (2003) 75 ALD 134 at 148. We are well satisfied that special circumstances exist where the payments made are identical to those to which the respondent would have been entitled had he applied in his own name. Provisions of this nature are designed to protect the revenue and permit the recovery of payments made in excess of an entitlement. Here, were it to be determined that there was a debt, the fact that the respondent had an equivalent, but not claimed, entitlement takes the present case out of the ordinary run of cases and gives to it a “special” character.
64.As we have said the Secretary did not persist with an argument that the element in paragraph (c) of s 1237AAD was not made out. There is no evidence that would suggest that any benefit would be gained by writing off any debt (or part of it) and we readily conclude that it would be more appropriate to waive than to write off any debt found to exist.
65.Accordingly, had it been necessary to consider the question of waiver, we would have been of the view that each of the matters in s 1237AAD was made out.
INTERLOCUTORY ORDERS
66.On 27 January 2006 an order was made by the Tribunal pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 that until further order the name of the respondent be shown as QX2006/01. That order will remain in effect. If the matter proceeds to the Federal Court it will be for that Court to be satisfied that the respondent’s identity be further preserved.
67.On 2 February 2006 on the application of the Secretary an order was made pursuant to s 41(2) of the Administrative Appeals Tribunal Act staying until the hearing and determination of the application for review so much of the decision of the Social Security Appeals Tribunal as would require the applicant to repay to the respondent the amount of $1,016.30 which had, by that stage, been deducted from disability support pension payments being made to the respondent. That order will now cease to have effect.
CONCLUSION
68.It follows that in our view the decision of the Social Security Appeals Tribunal was correct and that it should be affirmed.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Ms M J Carstairs, Member
Signed: .....................................................................................
Leisa Pendle, AssociateDate of Hearing: 24 March 2006
Date of Decision: 28 April 2006
For the Applicant: Mr. J.A. Logan SC with Mr. D.W. Marks of Counsel instructed by the Australian Government Solicitor
For the Respondent: Ms. N. Kidson of Counsel instructed by Legal Aid Queensland
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