SS(Admin)Act subsections 131(1) and 145(1) provide that, under certain circumstances, a person who applies for review of an adverse decision, internally by a review officer or by the SSAT, 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.
Payment pending review is only available where:
Thus, for example, payment pending review is not available for:
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.
Example: Tony's gender has been incorrectly coded as female and he has subsequently been granted age pension at age 64. An adverse decision is made to cancel the pension when the error is detected. Tony appeals this decision to a review officer. Tony cannot continue to be paid age pension pending review of the adverse decision as there is no discretion to pay male persons age pension before they turn 65 years of age (at this time). Tony should be directed to claim an alternative, appropriate payment to which he is legally entitled during the review period.
Payment pending review is not available under the social security law while a person is seeking review of an SSAT decision by the AAT. However, the person can ask the AAT to grant a stay of the SSAT decision, the effect of which may be to ensure the person continues to be paid a social security payment.
The decision to pay pending review is discretionary. The following are relevant considerations in determining whether to grant a person payment pending review:
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, e.g. 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:
The Secretary or their delegate can also cancel payment pending review at any time.
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 SSAT or 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 to the SSAT 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, i.e. her member of a couple status is affirmed by the SSAT, 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
Last reviewed: 12 November 2012