Skarzynski; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1725

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1725

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3660

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

Applicant

And KRZYSTOF SKARZYNSKI

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date31 August 2007

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 3 July 2007 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)

Social Security Act 1991 s 593

Re Repatriation Commission and Delkou (1985) 8 ALD 454

REASONS FOR DECISION

31 August 2007   Mr J G Short (Member)

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 the discretion prescribed in s 41(2) of the Administrative Appeals Tribunal Act 1975 (the Act) to stay, at least in part, the effect of a decision made by the Social Security Appeals Tribunal (SSAT) determining that the respondent (Mr Skarzynski) met the eligibility requirements set out in s 593(1)(a) of the Social Security Act 1991, namely that he was “unemployed” during the period from 24 July 1998 to date.  The SSAT consequently decided to set aside all of the decisions under review and to remit the matter back to Centrelink for reconsideration as to whether Mr Skarzynski was otherwise qualified for Newstart Allowance during all or any part of the last mentioned period.

2.      The Department’s original decision had been, amongst other things, to raise and recover an overpayment of Newstart Allowance in the sum of $74,835.71.  Of this alleged debt, the Department indicated that Mr Skarzynski had repaid approximately $600.  The Department said that it did not want to have to repay that money, pending the outcome of the Department’s appeal.  Further, the Department did not want to make arrears, and ongoing payments of pension/allowance with effect from the date a fresh claim was lodged, that is 15 August 2006 (a sum approaching $9,000).  This last mentioned payment may flow from the SSAT’s decision that Mr Skarzynski should be considered to be unemployed. 

3.      Mr Skarzynski argued that he has experienced hardship as he has been without benefits since May 2006.  He said that his only income has been gross payments of about $200 per week for approximately 6 months in 2006, together with the ongoing receipt of about $130 a week for the rental of a property where Mr Skarzynski continues to reside.  Mr Skarzynski said that the property is encumbered by a mortgage repaid at about $600 a month.  He said that in addition to the mortgage, he has credit card and other debts totalling about $130,000.

4.      Mr Skarzynski also suggested that if the Department’s appeal were ultimately successful, the Department would be able to recover any payments it was required to make to him pending the outcome of the appeal, by withholding.  The Department pointed out that if the Department’s application were successful, then it would be unlikely that Mr Skarzynski would be eligible to receive one of the unemployment benefits and consequently there may be no ongoing Centrelink payments from which withholdings could be made.

5.      The Department also argued that its appeal is likely to be successful.  I have read the SSAT’s decision and, although I must consider the likely outcome of the appeal, in this case I consider this factor neutral. 

consideration

6. I start by considering 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 intent therefore is that the lodgement of an appeal to this Tribunal should not affect the implementation of a decision made by the SSAT.

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

“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.

8.      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.

9.      I have considered all of the circumstances raised by the parties.  I am not satisfied that the Department would suffer hardship if required to make arrears and ongoing payments of benefits to Mr Skarzynski and to repay the $600 he has paid to the Department.  I am satisfied that Mr Skarzynski is likely to suffer hardship if the SSAT decision were stayed and as a consequence he was precluded from receipt of any benefit and consequently required to continue to attempt to live on a sum approximating $130 a week, particularly considering his level of debt.

10.     Noting the proposition 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 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  27 August 2007
Date of Decision  31 August 2007

Advocate for the Applicant       Ms M Welfare

Centrelink Legal Services Branch       
Advocate for the Respondent   In person