6.8 Payment pending review
SS(Admin)Act subsection 131(1) and subsection 145(1) provide that, under certain circumstances, a person who applies for review of an adverse decision, internally by a review officer or an application made to the AAT for review (AAT first review), in relation to a social security payment may continue to be paid their income support payment 'pending the determination of the review as if the adverse decision had not been made'.
For the policy relating to payment pending review of a compliance framework serious failure or unemployment non-payment periods see 188.8.131.52. The remainder of this section relates only to payment pending review of decisions not relating to serious failure or unemployment non-payment periods.
Types of decisions for which payment pending review is available
Payment pending review is only available where:
- a person has sought an internal review by a review officer or through an AAT first review of a decision to cancel, suspend, or reduce the rate of a social security payment ('adverse decision'), and
- the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person.
Thus, for example, payment pending review is not available for:
- a decision not to grant a social security payment, or
- an automatic payment suspension, cancellation or rate reduction under SS(Admin)Act Part 3 Division 8.
Equally, if the adverse decision does not involve discretion, the person affected cannot be paid pending review. In such cases, the person should be referred to an alternate, appropriate payment to which they may be legally entitled.
Payment pending review is not available under the social security law while a person has made an application to the AAT for review of an AAT first review decision (AAT second review). However, the person can ask the AAT to grant a stay of the AAT first review decision, the effect of which may be to ensure the person continues to be paid a social security payment.
Considerations for granting payment pending review
The decision to pay pending review is discretionary. The following are relevant considerations in determining whether to grant a person payment pending review:
- whether the person will be placed in severe financial hardship if payment pending review is not granted
- whether the person has dependent children or caring responsibilities that may be significantly adversely affected if payment pending review is not granted
- whether the person had a medical condition that may be significantly adversely affected if payment pending review is not granted (e.g. because the person cannot afford treatment)
- whether the person's accommodation may be significantly adversely affected if payment pending review is not granted (e.g. the person is likely to be evicted if unable to pay rent or board), and
- whether the person's application for review of the decision has any merit.
The above are examples of relevant considerations. The discretion to grant payment pending review is broad, and a person's circumstances should be taken as a whole when considering whether or not to grant it.
Nevertheless, payment pending review should not be granted merely because payment cancellation, suspension or rate reduction is inconvenient to the affected person. Payments made during a period of payment pending review are not recoverable as a debt (see below), so payment pending review should not be granted in unmeritorious cases, for example, where the application for review is frivolous or vexatious.
Payment pending review starts on the day the Secretary or their delegate decides that payment is to continue, or an earlier day specified in the declaration. Payment pending review ends:
- if the person withdraws their application for review of the adverse decision - on the day the application for review is withdrawn, or
- if the review officer or AAT makes a decision on the review application - on the day the Secretary or delegate specifies, or 13 weeks after the review officer or AAT first review's decision, whichever is earlier. If the result of the review officer's review or the AAT first review is to uphold the adverse decision, the Secretary or delegate will normally end payment pending review on the day of the decision.
The Secretary or their delegate can also cancel payment pending review at any time.
A payment pending review decision is not generally reviewable
A decision to grant or not grant payment pending review is reviewable by a review officer and, at the discretion of the Court, by the Federal Court, but is not reviewable by the AAT.
In the event that the adverse decision is upheld, no debt can be raised for payments made during the period that the person was paid pending review.
Example: A review officer has determined that Julia is living as a member of a couple and a decision is made to reduce the rate of her age pension. She appeals this decision through an AAT first review and asks to continue to be paid pending the outcome of her appeal. It may be appropriate in such a circumstance to pay pending review. In the event that Julia loses her appeal, that is, her member of a couple status is affirmed by the AAT, then no debt can be raised for the payments made during the period that she was paid pending review.
Act reference: SS(Admin)Act section 131 Secretary may continue payment pending outcome of application for review, section 132 Guidelines for exercise of Secretary's power to continue payment, section 144 Non-reviewable decisions, section 145 Secretary may continue payment pending outcome of application for review