The Applicant 0108 of 2014 and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by the Applicant for review of a decision by the Secretary, Department of Social Services, relating to a Disability Support Pension. The core dispute revolved around the Applicant's failure to comply with a direction to attend a medical appointment with a physician nominated by the Secretary, which the Secretary argued warranted dismissal of the application. The case was heard by Deputy Boyle P of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the Applicant's persistent failure to comply with directions to attend a medical examination, and her refusal to engage in a process to facilitate such an examination, justified the dismissal of her application under section 42A(5)(a) or (b) of the *Administrative Appeals Tribunal Act 1975* (Cth). Additionally, the Tribunal considered the Applicant's application for an indefinite stay of proceedings, supported by medical certificates indicating unfitness for work and an ongoing investigation for breast cancer.

The Tribunal reasoned that while the Applicant had indeed failed to comply with the direction to attend the appointment with Dr Floyd and had not cooperated in the process of providing necessary evidence, it was not yet satisfied that dismissal was the appropriate remedy. Drawing on principles of procedural fairness and the need for applications to be dealt with economically and proportionately, the Tribunal recalled its previous decision of 11 May 2018, where it had sought to give the Applicant every opportunity to avoid dismissal. The Tribunal noted the Applicant's self-represented status and cognitive impairment, and sought to explore alternative courses to secure compliance, such as parties agreeing on protocols for the examination. The medical evidence presented by the Applicant in support of a stay, while noted, was considered in light of the evidence available at the time of the dismissal hearing, and the Tribunal found it did not alter the position that the Applicant was unfit for work, which was already understood given her receipt of a Disability Support Pension.

Ultimately, the Tribunal dismissed the Applicant's application for an indefinite stay of proceedings. However, the Tribunal did not dismiss the substantive application at that time, indicating a continued desire to explore avenues for compliance and a proper assessment of the case, while making it clear that the conditions for dismissal had been met.