Szmekura-Moor; Secretary, Department of Social Services and (Social services second review)

This matter concerned an application by the Secretary, Department of Social Services (the Applicant) for a stay of a decision made by the Administrative Appeals Tribunal (AAT Tier 1). The AAT Tier 1 decision had set aside an earlier decision by the Department which rejected the Respondent's claim for a Disability Support Pension. The AAT Tier 1 found that the Respondent met the eligibility requirements, including an Impairment Rating of 20 points or more under the relevant Impairment Tables, entitling him to the pension from his original claim date of 25 August 2016. The Applicant sought a stay of this decision pending its review by the General Division of the AAT (Tier 2 Review), arguing that the Respondent should not receive payments until the substantive review was determined.

The central issue before the Tribunal was whether to grant a stay of the AAT Tier 1 decision and, if so, the extent to which that stay should operate. The Applicant sought to prevent the Respondent from receiving the Disability Support Pension from the date of claim until the Tier 2 Review was finalised. The Respondent opposed the application for a stay order.

In determining the application, the Tribunal considered the relevant factors for granting a stay, including the potential for financial hardship to the Respondent and the likelihood of the stay securing the effectiveness of the final hearing. The Tribunal found the Respondent to be a credible and honest witness. Ultimately, the Tribunal ordered a stay of the AAT Tier 1 decision in relation to any arrears of the Disability Support Pension that had accrued up to the date of the stay application. However, the Tribunal refused to grant a stay in relation to ongoing payments of the pension.