Bocxe v The Chief Executive of the Ministry of Social Development HC Auckland CIV 2008-485-001122

[2008] NZHC 2606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-485-001122

BETWEEN  WILHELMUS BOCXE Appellant

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:         25 September 2008

Appearances: W Bocxe in person (with McKenzie Friend - F C Dunn) L M Fong for the Respondent

Judgment:      1 October 2008 at 3.00pm

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 1 October 2008 at 3.00pm

pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:           Crown Law, P O Box 2858, Wellington 6140

Copy to:            W Bocxe, 35 Ramillies Place, Glenfield, North Shore City 0629

W BOCXE V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV

2008-485-001122  1 October 2008

[1]      This is an appeal by way of case stated under s 12Q of the Social Security Act 1964 (“the Act”).   It is in respect of a decision given by the Social Security Appeal Authority (“the Authority”) which is dated 13 September 2007.

Background

[2]      The appellant is from The Netherlands.  He immigrated to New Zealand and worked here for many years.   In late 1994 he became entitled to New Zealand Superannuation.  He was also entitled to a retirement pension known as the “AOW” pension from The Netherlands.

[3]      Section 70(1) of the Act permits the Chief Executive of the Ministry of Social Development   to   reduce   any   payment   to   any   recipient   of   New   Zealand Superannuation by the amount of any overseas benefit received, or part thereof, in certain circumstances.

[4]      On  18  May 1995,  the  Chief  Executive  through  his  delegate,  a  customer services officer, advised the appellant that the Ministry would be deducting the amount of his AOW pension from his New Zealand Superannuation payments.  The letter advised the appellant that if he did not agree with the decision, he could apply in writing within three months telling the Ministry why, and in that event, somebody else would review the decision.  The appellant was told that a form to help him to do this was available at any office of the New Zealand Income Support Service.

[5]      The appellant did not take issue with the Chief Executive’s decision for some years.  He did not seek a review of the decision until 15 February 2006.

[6]      The application for review of the Chief Executive’s decision recorded the appellant’s address and birth date.  Under the heading “Why do you disagree with the decision?” the appellant wrote as follows:

1.        I have lived – worked – payed (sic) taxes for 34 years!   I Am I entitled, as I qualify not for the minimum for 10 years but 34 years??  For the full NZ Super?

2.        I am also a legal, inalienable reciepeant (sic) of a part Netherlands pension, for which I paid a premium for 23 years!   Unlawfull (sic) confiscated!!

3.       I have never done anything wrong.   Yet I was lumbered with overpayments of more than $3,000 – and treated like a criminal.

I am angry!  Very angry!  Is this a reward, as an immigrant!  After leaving your homeland and family.  Shame.

Under the heading, “Is there any information you think we might not know about?”, is stated the following:

Yes.

Stop your mental torture, abuse, and restore my right to the full NZ Super. Restore my lawfull (sic) entitlement to my Netherlands pension!

For more information see … right to seek a review of the Chief Executive’s decision by a Benefit Review Committee (“the Committee”) is conferred by s 10A of the Act.  Pursuant to s 10A(1B), an application for such review must be made within three months after receiving notification of the decision, or, if the Committee considers there is good reason for the delay, within such further period as the Committee may allow on application made either before or after the expiration of the three month period.

[8]      It  seems  that  the  appellant’s  application  for  review  went  through  what Ms Fong  for  the  respondent  described  as  an  internal  check  process  within  the Ministry of Social Development.   It was also referred to the Committee for consideration pursuant to s 10A of the Act.

[9]      The  Committee  considered  the  application  and  made  its  decision  on

28 September 2006.  The Committee:

a)       recorded that there were no appearances before it;

b)noted that the appellant was seeking to review the decision to deduct his AOW pension from his New Zealand Superannuation entitlement, but that before considering the review itself, the Committee had to determine whether the application for review was received within the

three month time limit specified by the Act, and if it was outside the three month time limit, whether there was good reason for the delay;

c)       noted that the application for review was out of time by some 11 years;

d)summarised the facts, the case for the appellant as detailed in his notice of application, and the case for the Ministry.  The case for the Ministry was that the appellant had made no attempt to review the decision made in 1995 until February 2006, that he had had contact on numerous occasions with the Ministry on other issues, and that at no time had he requested a review of the 1995 decision.   The Ministry also took the view that the appellant had failed to advise the Ministry of  any  reason  for  his  delay  in  requesting  a  review  of  the  1995 decision;

e)       determined that all the information that was presented was adequate, and that the review sought was out of time by some 11 years;

f)        recorded its decision as follows:

The decision of the Ministry of Social Development to decline [the appellant’s] application for a review of decision was correct and should be upheld.  The [appellant] failed to provide a sufficient reason for delaying his application for review outside of the mandatory three month timeframe.

[10]     There were some deficiencies in this process.  First, it is not clear whether the appellant was ever told that he could or should make a separate application to extend time.  Insofar as I am aware no such application was made.  Secondly, it is not clear whether the appellant was given the opportunity to make submissions on the extension of time issue.  Thirdly, the role taken by the Ministry is unclear.  It had no decision making role in regard to whether or not time should be extended.   As a result the first sentence of the Committee’s decision noted in [10(f)] is in error. There was no decision in relation to the extension of time issue which could be correct or which the Committee could uphold.

[11]     These issues aside, it is clear that the Committee considered that the appellant had failed to provide any sufficient reason for delaying his application for review, and it was not prepared to allow the review to be filed outside the three month time limit contained in s 10A(1B) of the Act.

[12]     The appellant appealed this decision to the Authority.  The notice of appeal is dated 30 April 2007.  It was signed by a Mr Dunn as agent for the appellant, and it was accompanied by a letter from the appellant recording that he had appointed Mr Dunn to represent him in his dealings with the Ministry.  Mr Dunn also acted as a McKenzie friend for the appellant in the hearing before this Court.

[13]     The appeal before the Authority was dealt with on the papers.

[14]     The Chief Executive submitted in writing that no appeal lay to the Authority, on the ground that the decision of the Committee declining to extend time was not a decision of the Chief Executive upheld or varied by the Committee, and that it was therefore not  an  issue which  could  fall  within  the  jurisdiction  of  the  Authority pursuant to s 12J of the Act.

[15]     The appellant was given the opportunity to make a submission in reply, and a letter was received from Mr Dunn which is dated 31 July 2007.  The letter contained substantial information relating primarily to the substance of the review, and not to the jurisdictional issue of whether the Authority had jurisdiction to entertain an appeal from the Committee as to whether or not time should be extended.

[16]     The Authority gave its decision on 13 September 2007.  It noted as follows:

a)        The appellant had lodged an appeal in respect of the decision of the

Committee.

b)The  appellant’s  application  for  review  related  to  the  May  1995 decision made by the Chief Executive.

c)       The Committee had considered whether there were good reasons to accept the application out of time, and decided that there were none. It had declined any extension.

d)The Authority’s jurisdiction to hear appeals was limited by s 12J of the Act to decisions of the Chief Executive which had been confirmed or varied by a Committee, or that had been made by the Chief Executive other than pursuant to a delegation.

e)       Since an amendment made to the Act in October 1997, the Authority no longer had jurisdiction to consider an appeal where a Committee declined to extend the time for requesting a review.

f)        The Committee had not made a determination in relation to the merits of the appellant’s case, but had simply declined to extend the time for considering the request for a review pursuant to s 10A of the Act.

g)       This was an issue solely for the Committee, and it could not therefore be said that the decision in respect of which the appeal had been lodged was a decision of the Chief Executive confirmed or varied by the Committee.

The Authority determined that it did not have jurisdiction to consider the appellant’s appeal, and the same was struck out.

[17]     The  appellant  then  appealed  the  decision  of  the  Authority  to  this  Court pursuant to s 12Q of the Act.

The case stated

[18]     Section 12Q(1) of the Act provides as follows:

Where any party to any proceedings before the Authority is dissatisfied with any determination of the Authority as being erroneous in point of law, he may appeal to the [[High Court]] by way of case stated for the opinion of the Court on a question of law only.

[19]     As required by the section, the chairman of the Authority stated a case.   It poses the following question of law for the opinion of the Court:

Did the Authority err in law in finding it had no jurisdiction under s 12J of the Social Security Act 1964 to consider an appeal on the decision to not extend time where a Benefits Review Committee has declined to extend time for requesting a review under s 10A(1B) of that Act?

Submissions

[20]     I received lengthy written submissions and a considerable amount of material from  the  appellant  representing  himself  in  this  matter.     Unfortunately,  the submissions went largely to the merits of the Chief Executive’s decision, and with one  exception,  did  not  concentrate  on  the  question  posed  in  the  case  stated. Moreover, and despite warnings given by me to the appellant, his oral submission suffered from the same defect.

[21]     It is nevertheless clear the appellant appreciated the limited nature of the appeal.  He acknowledged the nature of the appeal in a memorandum filed with the Court dated 21 July 2008, and also in written submissions lodged by him on 25

September 2008.  There is one point raised by the appellant which I need to address. I deal with it at [44] to [46] below.

[22]    Ms Fong’s submissions for the respondent can be summarised relatively succinctly.  She submitted that the Authority had no jurisdiction under s 12J(1) of the Act to consider an appeal from the Committee’s decision, because there was no decision of the Chief Executive confirmed or varied by the Committee under s 10A of the Act.  This argument was advanced for the following reasons:

a)       There is no express (or implied) statutory authority for the Authority to consider decisions of the Committee declining to extend time for review.

b)        Legislative amendments to s 12J emphasise that it is a decision of the

Chief Executive which is subject to appeal.

c)        The Courts have distinguished decisions on procedural matters from substantive review, and not every decision is subject to appeal under s

12J.

d)       There are alternative avenues of challenge open to the appellant.

Analysis

[23]     The sole issue is that posed in the case stated.

[24]     The appellant is a beneficiary as defined in the Act, because he has been granted a benefit – namely New Zealand Superannuation.

[25]     As noted above, in May 1995, the Chief Executive made a decision under s

70(1) of the Act, reducing the appellant’s entitlement to New Zealand Superannuation, because he also receives the AOW pension from The Netherlands. The appellant had a right to make application making a review of that decision by a Benefits Review Committee.   That right is found in s 10A(1) of the Act.   Any application for review must be made within three months of notification of the relevant decision, or with such further period as the Committee may allow.

[26]     Relevantly, s 10A provides as follows:

10A     Review of decisions

(1)      This section applies to—

(a)       an applicant or beneficiary affected by a decision made by any person in the exercise of any power, function,  or  discretion conferred on the person by delegation, against which the applicant or beneficiary has a right of appeal under section 12J; or

(b)       …

(1A)     A person to whom this section applies may apply in writing for a review  of  the  decision  to  the  appropriate  district  review  committee established under this section.

(1B)     The application must be made—

(a)       within 3 months after receiving notification of the decision;

or

(b)       if the committee considers there is good reason for the delay, within   such   further  period  as  the   committee   may   allow   on application made either before or after the expiration of that period of 3 months.

[27]     In the present case, and as noted, the appellant’s application for review was substantially out of time, and the Committee declined to allow the appellant a further period within which to make the application.

[28]     In considering whether there is an appeal to the Authority from this decision, it is helpful to consider the nature of Benefit Review Committees.   They were introduced in 1987 by amendments to the Act.  There is at least one committee for every  office  of  the  Ministry  where  decisions  or  recommendations  are  made  in relation to matters to which the Act applies.  The constitution of the Committees is governed by s 10A(3).  They consist of two officers of the Ministry appointed by the Chief Executive, together with a person who is “resident in, or closely connected with” the relevant office of the Ministry, who is “appointed by the Minister to represent the interests of the community on the committee”.

[29]     The role of the Committees has recently been considered by the Supreme

Court in Arbuthnot v Chief Executive of the Department of Work and Income [2008]

1 NZLR 13 at [18] and [19]. Blanchard J, delivering the decision of the Court, noted that the Department administers many thousands of social welfare benefits and that it is to be expected that its officials will from time to time make decisions with which those affected disagree. It would not be sensible to go immediately to a formal appeal process without the decision first being reviewed, and it is not possible for the Chief Executive to undertake all reviews. The Act therefore provides for the Committees. Each is an interdepartmental body, intended to act in the place of the Chief Executive. Its decision, either to confirm, modify or reverse the original decision, has the same standing as the decision the Chief Executive might have made

if he or she were personally undertaking the review.  It is a departmental decision and the Committee is effectively acting in the Chief Executive’s stead.

[30]     The Act  gives  the Committees  a  number  of  powers  and  obligations.    It requires that Committees, as soon as practicable after receiving an application for review, review the decision which is the subject of the application, and provides that they may, in accordance with the Act, “confirm, vary or revoke the decision”:  see s

10A(8).  On reaching a decision on any review, the Committee is required to give written notification of its decision to the applicant, and to include in the notification the reasons for its decision, and advice that the applicant has a right of appeal against the decision to the Authority – s 10A(9).

[31]     The right of appeal is contained in s 12J.  Relevantly it provides as follows:

12J      Right of appeal

(1)       Any applicant  or  beneficiary affected  may appeal  to  the  Appeal Authority against any decision or determination of the chief executive under—

(a)      Any of the provisions of Part 1, Part 2, or Part 4; or

(b)      Section 124(1)(d); or

(c)      Part 1 of the Social Welfare (Transitional Provisions) Act

1990 [or Part 6 of the War Pensions Act 1954]; or

(ca)     Part 1 of the New Zealand Superannuation and Retirement

Income Act 2001; or

(d)      The Family Benefits (Home Ownership) Act 1964; or

(e)      Any  regulations  in  force  under  section  132A  or  [section

155]—

that has been confirmed or varied by a benefits review committee under section 10A, or that was made by the [chief executive] other than pursuant to a delegation.

[32]     The creation of a right of appeal requires legislative authority:  see Attorney- General v Sillem (1864) 10 HLC 704. For a right of appeal to exist, it must appear somewhere in a statute: Scottish Widows Fund Life Assurance Society v Blennerhassett [1912] AC 281. A right of appeal cannot arise by inference, or by

equitable construction:  see Sillem at 743 and 756; Keepers of the Peace v Justices for the County of London [1945] 1 KB 582; R v Stock (1838) 7 LJMC 93.

[33]     Pursuant to the provisions of s 12J(1), it is not every decision of a Committee that is open to appeal.   There has to be a decision or determination of the Chief Executive under one of the listed provisions.   Moreover it has to be a decision or determination of the Chief Executive which has been confirmed or varied by a Committee,  or  that  was  made by the Chief  Executive other  than  pursuant  to  a delegation.   There is no right vested in an applicant or beneficiary to appeal a decision or determination of the Chief Executive which has been revoked by a Committee.  Nor is the Chief Executive given a right of appeal.  That is because the Committee is effectively acting in the Chief Executive’s stead when it considers an application for review:  Arbuthnot at [19].

[34]     The scheme of the Act is as follows.   If the Chief Executive has made a decision himself or herself, then there is a direct right of appeal to the Authority.  If there  is  a  decision  made  by any person  in  exercise  of  any  power,  function  or discretion conferred on that person by delegation, then there is a right to seek review of that decision by a Committee, and there is then a right of appeal to the Authority if the Committee confirms or varies the decision.

[35]     It must follow that the Authority has no jurisdiction under s 12J of the Act to consider an appeal from a Committee’s determination not to extend time under s

10A(1B) of the Act.   This is because there is no decision or determination of the Chief Executive that time should not be extended.   Nor has any decision or determination of the Chief Executive been confirmed or varied by the Committee.

[36]     In my view, the decision of a Committee in the exercise of its discretion to decline an extension of time for an application for review out of time is distinct from and prior to its consideration of the application itself and necessarily before any confirmation, variation or revocation of the decision of the Chief Executive.  Before considering a late application for review the Committee must first allow an extension of time in the exercise of its discretion under s 10A(1B)(b).   Only then does the Committee become obliged to consider the Chief Executive’s decision on its merits,

and confirm, vary or revoke in accordance with s 10A(8).  The obligation to advise the applicant of his or her appeal rights under s 10A(9) can only apply following a review on the merits.

[37]     In  my  view,  the  clear  wording  of  s  12J(1)  precludes  appeals  from  a

Committee’s exercise of the discretion not to extend time.

[38]     This conclusion is reinforced by other provisions contained in the Act.  First, I refer to the powers of the Authority on appeal.   Section 12I(2) provides that in hearing  and  determining  an  appeal,  the  Authority  has  all  the  powers,  duties, functions and discretions that the Chief Executive had in respect of the same matter. The  Chief  Executive  has  no  power  to  exercise  the  discretion  conferred  by s 10A(1B)(b);  consequently,  nor  does  the  Authority.    Secondly,  the  provisions relating to the procedure on appeals to the Authority – s 12K – refers consistently to decisions or determinations of the Chief Executive confirmed or varied by a Committee:  see e.g. ss 12K(1A) and (1B).  A copy of the notice of appeal has to be left with or sent to the Chief Executive – s 12K(3).  The Chief Executive is required to send relevant papers to the Authority – s12K(4) –  including papers lodged with, received by, or prepared for the Chief Executive, and a copy of any notes made by the Chief Executive, or by his or her direction of the evidence given at the hearing before the Chief Executive.  The Authority can direct that a further report be lodged by the Chief Executive.  Notice of hearing of the appeal has to be given to the Chief Executive.  The Chief Executive can be represented by counsel, or by an officer of the Ministry.  Again the emphasis is on the role of the Chief Executive – and he or she has no part to play in exercising the discretion under s 10A(1B)(b).  Thirdly, the Authority’s powers to hear and determine an appeal while broad, relate to the rehearing of a decision by the Chief Executive – see ss 12M(1), (2), (4) and (8).  The Authority has power to remit a matter back to the Chief Executive.   There is no equivalent power to remit a matter back to the Committee.   Again this militates against  any suggestion  that  there  is  a  right  of  appeal  from  the  exercise  by the Committee of its discretion under s 10A(1B)(b).   I note that the Authority has the powers of a Commission of Inquiry.  However, it only has those powers “within the scope of  its jurisdiction”  –  s  12M(6)  –  and the fact  that  it  is  deemed to  be  a

Commission of Inquiry does not confer additional jurisdiction on it: Director- General of Social Welfare v W [2005] NZAR 258 at 265.

[39] It is also noteworthy that the right of appeal to the High Court conferred by the Act is in very much broader terms than is the right of appeal to the Authority. Section 12Q(1) has been set out above at [18]. It provides for an appeal to the High Court where any party is dissatisfied with any determination of the Authority as being erroneous in law. These words are considerably broader than the words used in s 12J(1) – namely “decision or determination of the Chief Executive … confirmed or varied” by the Committee.

[40]     My conclusion is also reinforced by reference to the legislative history.  The current version of s 12J was put in place from September 1997 by ss 3 and 6 of the Social Security Amendment (No. 4) 1997.  Under earlier provisions, there was no discretion permitting reviews out of time.   The predecessor to s 12J contained no provision requiring the Committee to have confirmed or varied the then Director- General’s decision.  It was in rather broader terms, and permitted an appeal to the Authority  against  any  decision  or  determination  of  the  Director-General  under certain specified provisions.  It did provide that if any person had a right to apply for a review of a decision, then there was no appeal to the Authority until the person had exercised that right, and the Committee had given its decision following the review. In a decision of the Authority dated 3 August 2992 – Decision 95/92 – the Authority held that a decision of the Committee that an application was out of time was itself subject to appeal.   However, since the amendments which resulted in the current version of s 12J, the Authority has taken the view that, where an application for review is outside the specified time period, whether  to  extend  the  time  for  the application is a decision for the Committee pursuant to s 10A(1B), and it is not susceptible to appeal.

[41]     The  conclusion  I have  formed  is  also  broadly consistent  with  an  earlier decision of this Court – Wharerimu v The Chief Executive, Department of Work and Income [2000] NZAR 467. In this case Baragwanath J was considering a case stated appeal under s 12J of the Act concerning a search for evidence at a beneficiary’s house, undertaken during a review of her benefit entitlement. The beneficiary sought

a review of the manner in which the search had been allegedly conducted.   Her application for review to the Committee was unsuccessful and she appealed.   The Authority held that it lacked jurisdiction to consider the appeal under s 12J. Baragwanath J was also satisfied that the Authority had no jurisdiction to consider the appeal.  His Honour noted that s 12J(1) conferred a right of appeal against any decision or determination of the Chief Executive.  He noted the obligation imposed on the Chief Executive by s 12K(4)(d) to send to the Authority a copy of the decision or determination appealed against and observed that a written determination was inapt for a decision that related to the manner of undertaking an interview and search and therefore that no appeal could lie.

[42]     The decision confirms that not every decision of a Committee will be subject to appeal.  That is also clear from the statutory language.  It is not appropriate to try and stretch that language to extend the jurisdiction of the Authority simply because a decision affecting a beneficiary has been made by the Committee.

[43]     In this latter context, I note that there are other  options available to the appellant in any event.  First, he could ask the Chief Executive to consider exercising his/her discretion to further review the matter under s 81 of the Act.  While any such review  has  to  be initiated  by the Chief  Executive,  there is  nothing  to  stop  the appellant approaching his case manager and through him/her seeking to persuade the Chief Executive that it would be appropriate to review the exercise of his discretion under s 70(1).  Secondly, it seems to me that the appellant could ask the Committee afresh to extend time, and seek to establish a good reason for his very lengthy delay. There is no estoppel attaching to the Committee’s existing decision: see Arbuthnot at [27]  and  [28],  and  there  is  no  jurisdictional  impediment  to  the  Committee considering the matter again.   Thirdly, the appellant could seek an application for review under the Judicature Amendment Act 1972 of the Committee’s decision:  see e.g. Gall v Chief Executive of the Department of Work and Income AK HC CV

409/SW01, 4 September 2002, Laurenson J.  That, however, would be very much a matter of last resort.

[44]     Finally,  I  must  deal  with  a  point  raised  by  the  appellant  in  relation  to s 12J(1)(e).   The appellant alleges that that section applies to provide him with a right of appeal to the Authority.

[45]     Section 12J(1)(e) permits appeals to the Authority from inter alia the Chief Executive’s decision pursuant to regulations in force under s 155, where those decisions are confirmed or varied by the Committee.   Section 155(c) empowers regulations prescribing how a person is to be assessed as being, or no longer being, an elderly victim of crime.  The appellant alleges he is an elderly victim of crime as a result of the application to him of the Chief Executive’s decision under s 70(1) in relation to his New Zealand Superannuation.

[46]     Unfortunately  for  the  appellant,  the  papers  before  the  Court  disclose  no decision or determination made by the Chief Executive under s 12J(1(e).   Nor do they disclose that any such decision was confirmed or varied by the Committee. Further, the regulations promulgated under s 155 are the Social Security (Long Term Residential Care) Regulations 2005 (2005/183).  They define an “elderly victim of crime” for the purposes of Part 4 of the Act.   Section 155 is contained in Part 4. Under reg 6, an “elderly victim of crime” is a victim of certain offences under the Crimes Act 1961, resulting in a claim for personal injury, which claim is accepted by the Accident Compensation Corporation, and where there is an injury-related need for long term residential care within the following 12 months.  The appellant does not fall within the reg 6 definition.  Nor does his appeal to the Authority relate to reg

6.  The appellant cannot bring himself within s 12J(1)(e).

Conclusion

[47]     The question posed by the case stated must be answered in the negative.  The Authority did not err in law in finding it had no jurisdiction under s 12J of the Act to consider the appeal brought by the appellant in relation to the decision made by the Committee declining to extend time for requesting a review under s 10A(1B) of the Act.

Costs

[48]     The respondent expressly made no application for costs, and as a result, no order is made.

Wylie J