Re Secretary, Department of Employment and Workplace Relations and Hitchcock

[2006] AATA 1127

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1127

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/75

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And DAVID HITCHCOCK

Respondent

DECISION

Tribunal Mr J G Short

Date9 June 2006

PlaceAdelaide

Decision The application under s 41 of the Administrative Appeals Tribunal Act 1975 to stay a decision of the Social Security Appeals Tribunal dated 28 February 2006 is dismissed.

..............................................

J G SHORT
  (Member)

CATCHWORDS

PRACTICE AND PROCEDURE – stay order – financial hardship – likelihood of recovery of overpaid sums – prospect of success of application – stay order refused

Administrative Appeals Tribunal Act 1975 ss 41(1), 41(2)

Re Repatriation Commission and Delkou (1985) 8 ALD 454

REASONS FOR DECISION

9 June 2006     Mr J G Short     

1. The Department of Employment and Workplace Relations (the Department) suggests that it is appropriate in the circumstances of this case for the Tribunal to exercise its discretion prescribed in s 41(2) of the Administrative Appeals Tribunal Act 1975 (the Act) to stay the effect of a decision made by the Social Security Appeals Tribunal (SSAT) to treat Mr Hitchcock as an individual for Centrelink purposes rather than as a member of a couple. 

2.      The Department argued that there was a strong prima facie case suggesting that Mr Hitchcock should be treated as a member of a couple.  The Department referred to the fact that Mr Hitchcock lived with a Ms Fay Croysdale in another state and now in South Australia, and that they have four children together.

3.      Mr Hitchcock said that both he and Ms Croysdale were honest in their dealings with Centrelink and at all times kept Centrelink informed about the circumstances under which they share accommodation.

4.      Mr Hitchcock said that he depends on Centrelink benefits and would experience hardship if he were not paid an entitlement reflective of his single status, as determined by the SSAT.

consideration

5. I start from a consideration of s 41(1) of the Act. This sub-section reads as follows:

“41(1)  Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”

The clear intent therefore is that the lodgement of an appeal to this Tribunal should not affect the implementation of a decision made by the SSAT.

6. The Tribunal has however been granted power in the appropriate circumstances, to stay the implementation of a decision. Section 41(2) of the Act reads as follows:

“41(2)   The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, 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.”

Section 41(2) aims to ensure, to the extent desirable, that the effect of a successful appeal to this Tribunal is not rendered nugatory by events or payments made during the time leading up to the consideration of an appeal.

7.      In Re Repatriation Commission and Delkou (1985) 8 ALD 454 Deputy President Hall suggested that in considering a stay application one should consider the following matters:

·any hardship a party may suffer by reason of the grant or refusal to grant a stay; 

·the likelihood of recovery by the Commonwealth of monies paid under the determination sought to be stayed; and

·the prospect of success of the application for review.

8.      I have considered all of the circumstances raised by the parties and have reached a view that Mr Hitchcock may suffer hardship if, while living as a single person, his Centrelink payments are confined to those payments due to a member of a couple. 

9.      The Department submitted that the circumstances of this case suggested that the Department’s appeal would be successful.  I do not agree.  There is no suggestion that the SSAT made an error of law.  The decision turned on the SSAT’s understanding of the specific circumstances of this case.  I do not consider it more likely than not that the Department will be successful in its appeal although of course I have not had the benefit of hearing all of the evidence and submissions relevant to the case.

10.     The third factor mentioned in Re Delkou is the likelihood of recovery by the Commonwealth of any monies paid under the determination sought to be stayed.  I consider Centrelink is likely to be able to recover any debt by withholdings. 

11.     Starting from the position that the decision of the SSAT should be implemented pending the outcome of any appeal, I have not been shifted to a view that it would be desirable to stay the effect of that decision.  The application is dismissed.  

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Short

Signed:         .............J Coulthard..........................................
  Associate

Date of Hearing  23 May 2006
Date of Decision  9 June 2006

Advocate for the Applicant       Mr C Goldsworthy

Centrelink Legal Service Branch
Advocate for the Respondent  In person