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9.5 Appeal by the Department
9.5.1 — It is possible for the Department to appeal a decision made by the VRB, AAT or the Courts.
9.5.2 — DI B31/93 outlines the legislation and policy regarding recovery of overpayments resulting from appeal decisions. If the VRB/AAT were to reassess a DP rate reduction, and the pensioner then lodges an application for increase (AFI), the AFI should be finalised before a decision is made on the rate of DP.
9.5.3 — In essence, if there is a decision by the VRB, AAT or Courts that facilitates a release of arrears, or an ongoing payment, and the Department successfully appeals against that decision, all amounts paid become unauthorised payments and are therefore recoverable.
9.5.4 — During the 28 day appeal period following notification of an AAT decision (and then 21 days for a Full Federal Court decision following a Federal Court decision) arrears of pension, where possible, should not be paid. If arrears are requested the recipient should be advised in writing that they will be recovered if the Commission is successful on the appeal.
9.5.5 — The AAT and the Federal Court are able to grant a Stay Order (an order to suspend implementation of the decision made by previous delegate of review body). However, as a matter of practice, these are not sought as the Commission has been unsuccessful in gaining stay orders to prevent the payment of pension and/or arrears.
9.5.6 — Where a decision has been made by the VRB or the AAT to pension (or an increase), payment of the ongoing amount should be commenced without delay. If it is likely that the matter may be referred to National Office for consideration of an application for review to the AAT or the Federal Court, then arrears should not be paid. However, if the arrears are requested, the recipient should be advised in writing that, in the event that the Commission is successful, both the ongoing payments and the arrears will be recovered.