Chief Executive of the Ministry of Social Development
[2022] NZHC 1984
•11 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-485-582
[2022] NZHC 1984
IN THE MATTER of an appeal by way of Case Stated from a determination of the Social Security Appeal Authority at Wellington under section 405 of the Social Security Act 2018 BETWEEN
CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Appellant
AND
B
Respondent
Hearing: 16 March 2022; further submissions 24 and 30 March 2022 Appearances:
AJ Ewing and HLS Bergin for the Appellant
FM Joychild QC and B Hoffman for the Respondent
Judgment:
11 August 2022
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 11 August 2022 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law, Wellington To: F Joychild QC, Auckland
B Hoffman
MINISTRY OF SOCIAL DEVELOPMENT v B [2022] NZHC 1984
Introduction
[1] When is a student “enrolled in a full-time course”? That is the question at the heart of this appeal. The respondent’s entitlement to the accommodation supplement under the Social Security Act 2018 (the SSA) depends on the answer.
[2] The accommodation supplement is paid under the SSA to persons who meet certain criteria.1 Even if those criteria are met, however, there are exceptions, including where the person concerned is receiving or eligible to receive a basic grant under the Student Allowances Regulations 1998 (the Regulations). In short, students “enrolled in a full-time course” are eligible for the basic grant under the Regulations and as such, become ineligible for the accommodation supplement under the SSA.
[3] The respondent is a single mother who has the sole care of two dependent children. She was originally studying on a part-time basis. She met the income threshold under the SSA to qualify for the accommodation supplement and was paid the supplement up until February 2020. In early 2020, the respondent increased her course load to finish her studies earlier, but continued to devote much of her time to working to support herself and her two children. As a result of the respondent’s increased course load, the Open Polytechnic advised StudyLink, a division of the Ministry of Social Development (the Ministry), that she was enrolled in a full-time course and thus eligible for a basic grant under the Regulations. As a result, the Ministry ceased paying the respondent the accommodation supplement. But given the level of her weekly income, the respondent did not actually receive the basic grant under the Regulations, her entitlement having abated to zero.
[4] Following the Ministry’s cancellation of her accommodation supplement, the respondent appealed to the Social Security Appeal Authority (the Authority). In a decision delivered on 14 July 2021, the Authority allowed the appeal.2 It considered it would be “perverse” for the respondent to lose access to the accommodation supplement simply because she had chosen to increase her course load to finish her studies earlier, yet all her other circumstances and work commitments remained the
1 Eligibility is set by the Social Security Act 2018 [SSA], s 65.
2 Re B [2021] NZSSAA 12.
same. It concluded that the respondent was not “enrolled in a full-time course”, on the basis that her considerable other commitments meant that in reality she was not pursuing her course work on a full-time basis. Given she was not enrolled in a full-time course, the Authority concluded that the respondent was not eligible to receive the basic grant under the Regulations and thus was not excluded from continuing to receive the accommodation supplement under the SSA.
[5] The appellant (which I will refer to in this judgment as the Ministry) says the Authority’s decision is wrong in law. It argues that a student’s personal circumstances are not relevant to determining whether that student is “enrolled in a full-time course”. Rather, the Ministry says that that issue is to be determined by objective measures related to the expected workload involved in the student’s course of study.
[6] The matter proceeds by way of a case stated from the Authority on a question of law.3 The question stated for this Court’s determination is:
Did the Social Security Appeal Authority err in law in determining that a student’s personal circumstances, in particular their work and other personal commitments, can affect whether that person is “enrolled in a full-time course” under Regulations 2 and 12(1)(c) of the Regulations?
[7]The Authority will have erred in law if it:4
(a)applied the wrong legal test; or
(b)took into account matters which it should not have taken into account; or
(c)failed to take into account matters which it should have taken into account; or
(d)came to a view without evidence, or reached a view which, on the evidence, it could not reasonably have come to.
3 SSA, s 405.
4 Chorus Ltd v Commerce Commission [2014] NZHC 690 at [13].
Factual background
[8]The following is drawn from the case stated on appeal.
[9] As mentioned, the respondent is a single mother with the sole care of two dependent children. Between October 2018 and 23 February 2020, she studied part-time at the Open Polytechnic, working at the same time 30 hours per week. She qualified on that basis for a non-beneficiary accommodation supplement under the SSA.
[10] In early 2020, the respondent decided to increase her course load so she could complete her studies earlier. As noted, she continued with her existing work and family commitments. The Open Polytechnic subsequently advised StudyLink that the respondent was enrolled in a full-time course at the Open Polytechnic from 24 February 2020.
[11] Following that notification, StudyLink cancelled the respondent’s accommodation supplement. The respondent’s weekly income exceeded $683.83, which under the Regulations meant her entitlement to a basic grant abated to zero.5 The respondent accordingly received neither the accommodation supplement under the SSA nor the basic grant under the Regulations.
[12] As noted earlier, the respondent appealed against that outcome. On 14 July 2021, the Authority allowed her appeal, concluding that because the respondent was not pursuing her studies on a full-time basis, she was not enrolled in a full-time course and therefore remained eligible for the accommodation supplement. It is helpful first to set out the relevant legislative scheme before addressing the Authority’s decision in more detail.
Legislative scheme
[13] Two statutory regimes are relevant in this case. The first is the SSA, which establishes a range of welfare payments, including the accommodation supplement. The second is the Regulations, promulgated under the Education and Training Act
5 Student Allowances Regulations 1998, reg 18 and sch 2 cl 3(1)–(2).
2020. The Regulations provide for financial assistance to students, including an accommodation benefit (which forms part of what is known as the “basic grant”).
[14]Turning first to the SSA, s 3 of the Act relevantly provides:
3 Purpose of this Act
The purpose of this Act is—
(a) to enable the provision of financial and other support as appropriate—
(i)to help people to support themselves and their dependants while not in paid employment; and
(ii)to help people to find or retain paid employment; and
(iii)to help people for whom work is not currently appropriate—because of sickness, injury, disability, or caring responsibilities—to support themselves and their dependants:
(b) to enable in certain circumstances the provision of financial support to people to help alleviate hardship:
…
[15] Section 4 of the SSA sets out the Act’s principles, which include for present purposes that “work in paid employment offers the best opportunity for people to achieve social and economic well-being”6 and that “the priority for people of working age should be to find and retain work”.7
[16]The accommodation supplement is governed by s 65 of the SSA:
65 Accommodation supplement: discretionary grant
(1)MSD may grant a person (P), for the period that MSD determines, an accommodation supplement—
(a) P has accommodation costs; and
(b) P meets the assets requirement (as set out in regulations made under section 423); and
(c) P is not excluded on either of the following grounds:
6 SSA, s 4(a).
7 Section 4(b).
(i)the social housing exclusion:
(ii)the other funding exclusion.
…
(Emphasis added)
[17]“The other funding exclusion” is defined by s 67 of the SSA:
67 Other funding exclusion
A person (P) is ineligible for an accommodation supplement (on the ground of the other funding exclusion) if—
(a) P is the spouse or partner of a person who is already receiving an accommodation supplement (except as provided in section 68); or
(b) P—
(i)is receiving a basic grant or an independent circumstances grant under the Student Allowances Regulations 1998 (or under other regulations made under section 645 of the Education and Training Act 2020); or
(ii)would be eligible to receive one of those grants if P were to apply for the grant; or
(iii)would be eligible to receive one of those grants were it not for the level of income of P or of P’s parent or parents or spouse or partner; or
…
(Emphasis added)
[18] I pause to note that as can be seen from s 67(b)(ii) and (iii), a person is excluded from being eligible to receive the accommodation supplement under s 65 if they are eligible for the basic grant under the Regulations even if they are not actually being paid the grant (in the latter case, as a result of the level of their income). The predecessor to s 67, s 61EA of the Social Security Act 1964, was amended in 2015 by adding subs (b)(ii), and (iii) was amended to include reference to the applicant’s
partner’s income. In Parliamentary debate on the third reading of the 2010 Amendment Bill (in April 2015),8 the responsible Minister stated that:9
There is a major and deliberate difference between the support provided to students in tertiary education and the support provided to low and middle income families through the accommodation supplement. The accommodation supplement recognises the housing needs of low to middle income people and assists them with accommodation costs when they are not getting other Government assistance such as income-related rent or student support. The Government provides tertiary students with a package of support for their costs through substantially subsidised fees, the student allowance, accommodation benefit, and access to student loans.
A loophole in the Act has meant that some students can get a higher level of accommodation assistance by accessing the accommodation supplement. That is not right. Students should get the assistance designed for them. The adequacy of New Zealand’s student support is completely beyond the scope of this bill. New Zealand students are well provided for. That is right and proper. Having highly educated, skilled people is a benefit to the whole country, but there is also an individual advantage accruing from tertiary education in terms of the income a person can earn over their lifetime. This is why student support in New Zealand is shared between taxpayers, individual students, and their families. This bill closes the loophole so that students must use the assistance designed for them and cannot claim the accommodation supplement.
[19] In a similar way, “full-time students” are not eligible for jobseeker support10 or temporary additional support,11 albeit this is subject to various exceptions.12 A “full-time student” is defined in the SSA as a person “who is enrolled in a full-time course within the meaning of … the [Regulations].”13
[20]Turning to the Regulations, reg 12 determines eligibility for the basic grant:
12 Eligibility for certain allowances
(1) No student is eligible for an allowance continued by regulation 3(a) to
(e) unless—
(a) he or she—
8 Social Security Amendment Bill (No 3) 2010 (232-1).
9 (2 April 2015) 704 NZPD 2885–2886. Also reflected in the Ministry of Social Development Social Security Amendment Bill (No 3): Initial Briefing to the Social Services Committee (29 April 2011) at [18]–[20] and [29].
10 SSA, s 26(a).
11 Social Security Regulations 2018, reg 59(3)(d).
12 Section 25 of the SSA provides for the discretionary grant of jobseeker support to a full-time student who is in hardship; reg 59(3)(d) of the Social Security Regulations 2018 does not apply to anyone with the care of dependent children.
13 SSA, sch 2.
(i)is a New Zealand citizen; or
(ii)satisfies the chief executive that he or she is ordinarily resident in New Zealand, has lived in New Zealand for at least 3 years, and has been entitled under the Immigration Act 2009 to reside indefinitely in New Zealand for at least 3 years; or
(iii)satisfies the chief executive that he or she is recognised under the Immigration Act 2009 as a refugee or a protected person and is entitled under the Immigration Act 2009 to reside indefinitely in New Zealand; or
(iiia) satisfies the chief executive that the student is a person who holds a residence class visa that is an Afghan emergency resettlement visa under the Immigration Act 2009; or
(iv)satisfies the chief executive that he or she is entitled under the Immigration Act 2009 to reside indefinitely in New Zealand and was sponsored into New Zealand by a family member who, at the time of the student’s entry into New Zealand—
(A)was recognised under the Immigration Act 1987 or the Immigration Act 2009 as a refugee or protected person; and
(B)held a residence permit issued under the Immigration Act 1987 or a residence class visa issued under the Immigration Act 2009; or
(v)satisfies the chief executive that the student is a person who holds a residence class visa that is a Christchurch response visa under the Immigration Act 2009; or
(vi)satisfies the chief executive that the student is a person who—
(A)holds a residence class visa (other than a Christchurch response visa) under the Immigration Act 2009; and
(B)would have been eligible for a Christchurch response visa if the student did not hold a residence class visa (other than a Christchurch response visa) under the Immigration Act 2009; and
(vii)satisfies the chief executive that the student holds a temporary entry class visa and—
(A)has been recognised under the Immigration Act 2009 as a person who is a refugee or protected person; or
(B)is residing in New Zealand, is a specified family member of a person who has been recognised under
the Immigration Act 2009 as a refugee or protected person, and is eligible to transition to a residence class visa with that person; or
(viii)satisfies the chief executive that the student holds a residence class visa that was transitioned from a temporary entry class visa at the time when a family member recognised under the Immigration Act 2009 as a refugee or protected person was issued with a residence class visa; and
(ab) if the allowance is in respect of a course of study commencing on or after 1 January 2014, he or she is, when the course of study commences, under the age specified in section 7(1) of the New Zealand Superannuation and Retirement Income Act 2001; and (b)
he or she makes an application for an allowance in accordance with Part 7; and
(c)
he or she either—
(i) is enrolled in a full-time course at a tertiary provider or secondary school and meets the attendance and performance requirements of that provider or school for tuition; or
(ii) is approved to study overseas under regulation 26; or
(iii) is approved to study in a part-time course under regulation 12A.
…
(Emphasis added)
[21] As can be seen from reg 12(1)(c), in order to be eligible to receive the basic grant, the student must be “enrolled in a full-time course”.14 Students enrolled in part-time courses can, however, receive the basic grant if approved for that purpose under reg 12A:15
12A Chief executive may approve part-time course for student
(1)For the purpose of regulation 12(1)(c)(iii), the chief executive may approve a course of study for a student that is less than a full-time course if either of the following applies:
14 The definition of “full-time course” and related definitions are addressed at [22] to [25] below.
15 The italicised parts of the section are relevant to matters discussed later in this judgment: see [78] to [79] below.
(a) the student is enrolled, or intending to enrol, in a recognised course of study that is less than a full-time course and, on the advice of a tertiary provider or the principal of the appropriate secondary school, the chief executive considers a course of study that is less than full time is appropriate—
(i)because of the student’s illness; or
(ii)for any cause that is, in the opinion of the chief executive, a sufficient cause that is outside the student’s control; or
(iii)because the chief executive considers such a course to be in the student’s academic best interests:
(b) the student is enrolled in a recognised course of study that is less than a full-time course and, in the opinion of the chief executive, the student—
(i)has completed part of the course in which he or she is enrolled; and
(ii)will, on completing that course, complete a recognised programme; and
(iii)is taking a course, or combination of courses, that constitutes more than half of a full-time course.
(2)For the purposes of subclause (1)(a)(iii), academic best interests, in relation to a student, means that the student would be likely to fail, for academic reasons, if he or she undertook a full-time course but would be likely to pass more than half of the course if he or she studied part- time.
(Emphasis added)
[22]“Full-time course” is defined in s 2 of the Regulations to mean:
… any recognised course of study approved by the chief executive as a full- time course forming part of a recognised programme.
[23] A “course of study” is not defined, though I proceed on the basis that on its ordinary terms, it refers to the collection of papers, classes or work that a student is undertaking. A “recognised course of study” is defined and s 2 relevantly provides as follows:
recognised course of study—
(a)means a course of study leading to the completion of a recognised programme; and
…
[24]“Recognised programme” is defined as follows:
recognised programme means—
(a)in relation to a tertiary provider, a programme approved by the Tertiary Education Commission, and approved—
(i)by the New Zealand Qualifications Authority under section 439 of the Act; or
(ii)by the New Zealand Vice-Chancellors Committee under section 453 of the Act; and
…
[25]Finally, the term “programme” is defined in s 2A:
2A Meaning of programme
(1)In these regulations, programme means,—
(a) in relation to a secondary school, a full-time course:
(b) in relation to a tertiary provider, any aggregate of courses, classes, and work required for the completion of a degree, diploma, certificate, or other qualification awarded by that provider.
…
[26] The Regulations do not provide any express formula or criteria which the Chief Executive must apply when deciding whether to approve a recognised course of study as a full-time course. In practice, the Chief Executive currently determines whether a course of study is a full-time course by reference to the combined Equivalent Full-Time Student (EFTS) score of the various papers a student is taking. Each tertiary course is assigned an EFTS value by the Tertiary Education Commission, which is in turn based on the total number of hours that a student would be expected to spend on that course. One EFTS represents 1,200 learning hours, which equates to a year of full-time study.16
[27] Based on these calculations, the Chief Executive then determines what total EFTS score will be considered “full-time” for a particular course load for student
16 Tertiary Education Commission “Qualifications and courses” < or loan purposes. This is explained on the StudyLink website as replicated below:17
[28] Before leaving the two statutory regimes, I note that it is not in dispute that the accommodation supplement under the SSA and the basic grant under the Regulations abate at different income levels:
(a)the accommodation supplement starts to abate once the recipient receives weekly income of $626, and abates to zero at an income level of $1,106 per week;18
17 StudyLink “Full-time definition” Ministry of Social Development < at April 2020; Social Security Regulations 2018, reg 17(2)(f); and SSA, sch 4 pt 1. Abatement is provided for by reg 18 of the Social Security Regulations.
(b)a student enrolled in a full-time course is ineligible for the basic grant if their income exceeds $683.83 per week.19
[29] Consequently, once a student enrolled in a full-time course receives a weekly income of $683.83 per week or more, that student will no longer be eligible for the basic grant and because of s 67(b)(iii) of the SSA, will also be ineligible for the accommodation supplement.
The Authority’s decision
[30] The Authority stated that “[t]he issue we must decide is whether the respondent should have lost her accommodation supplement.”20 As will be seen from the following extracts from the Authority’s decision, the Authority’s answer to that question was heavily influenced by what it perceived to be the unfairness of the situation in which the respondent found herself.
[31] The Authority traversed the statutory provisions outlined in the earlier section of this judgment. It then outlined what it understood to be the Ministry’s approach to the case as follows:
[15]The Ministry has approached the case on the basis that if [the respondent] is excluded from eligibility to a basic grant for any reason other than her income, then she is entitled to an accommodation supplement. Accordingly, when she was not enrolled in “a full-time course”, or approved part-time course, then she was eligible.
[16]It follows that the Ministry’s position is that the legislation demands a perverse outcome:
[16.1] [The respondent] income level justifies an accommodation supplement; but
[16.2]She does not get the accommodation supplement because she is entitled to a basic grant; but her income reduces the basic grant to nil.
[17][The respondent] does not receive the basic grant; she has not applied for one but that does not affect eligibility in the relevant sense. If she could apply successfully no doubt she would.
19 As at April 2020; Student Allowances Regulations 1998, reg 18 and sch 2 cl 3(1)–(2).
20 Re B, above n 2, at [3].
[18]The most favourable interpretation is that if [the respondent] is excluded for any reason in addition to her income, then she is entitled to retain the accommodation supplement. We understand that is the Ministry’s approach and we agree it is consistent with the Act. It follows that the pivotal issue for us to determine is whether [the respondent] is excluded from being eligible for a basic grant for one or more reasons other than her income.
(Emphasis added)
[32]The Authority then stated:
[20]As we have observed, the Act provides support to assist people in supporting themselves by gaining employment. It records that people being in paid employment offers the best opportunity for them to achieve this independence.
[21]Training and gaining skills are also referred to in the [SSA’s] principles. The Act should not impede people training and gaining skills, as far as the provisions in the Act permit that to happen. What [the respondent] did was to continue her part-time work, manage her responsibilities as a parent and take on some additional papers to complete her qualifications as quickly as possible. She reasonably objects to a legislative quirk if it deprives her of an accommodation supplement simply because she has successfully accelerated her course of study, while remaining in near full-time employment. If the legislation works in that way it is a perverse incentive that is inconsistent with the expressed purposes of the Act.
[22]To the extent we can apply a purposive interpretation to the legislation to achieve the purposes of the Act we indicated we would do so. This approach to interpretation has statutory direction under s 5(1) of the Interpretation Act 1999, which states legislation’s purpose is “ascertained from its text”, and in the “light of its purpose”. The purposive approach calls for a balance to be struck between the text and the purpose of the legislation. In appropriate cases attributing a means that is consistent with the purpose of a provision has a high value. Of course, where the words of a provision are sufficiently unclear or capable of more than one meaning, courts will adopt an interpretation that does not lead to injustice or absurdity. However, the effect is far more pervasive than that. This Authority must have regard to the total context of the words used and the purpose of the legislation in order to arrive at the meaning intended.
[23]In this case, the Act makes it clear that its purpose is to help people support themselves by providing financial assistance to assist reaching a level of independence. Taking a purposive interpretation, the Authority will interpret the provisions in a manner that achieves that objective, rather than a perverse outcome. In this case the Ministry of Social Development considers the legislation imposes negative financial consequences where a person takes additional study courses to quickly achieve a professional qualification; whereas a person in otherwise identical circumstances who does less study is not penalised.
(Footnotes omitted, emphasis added)
[33] The Authority noted that there was no dispute between the parties that the only provision that potentially excluded the respondent from being entitled to the accommodation supplement was her eligibility for a basic grant under the Regulations. The Authority accordingly described whether the respondent was enrolled in a full- time course at a tertiary provider as the “determinative point”.21
[34] The Authority then turned to the definition of “a full-time course”, noting that this was determined by the Chief Executive under what the Authority described as “a statutory discretion”.22 The Authority noted that the Chief Executive had published that he exercises “the discretion on an individual basis”, given the StudyLink website (set out at [27] above) states “[f]or the course to be approved as full-time, the length of that course must meet a certain EFTS value … [w]e get this information directly from your education provider.”23 The Authority then said:
[29] As the education provider has no statutory power to make the decision, it appears clear the Chief Executive gets information from the provider regarding the course work-load, and then makes the decision in respect of the individual student. However, we did not consider the discretion was confined to considering only the course work-load. If that were the case it would not be necessary to gather information for individual students. Furthermore, we do not consider that the Chief Executive is obliged to regard a student as engaged in a full-time course simply because they are enrolled in sufficient components of a course.
[35] The Authority then noted that pursuant to s 401(3) of the SSA, the Authority has all the functions and powers that the Ministry has in respect of the respondent’s entitlement (which the Ministry does not dispute). The Authority stated that it was therefore required to consider whether the respondent was enrolled in a full-time course. The Authority reiterated its view that “this case concerns a discretionary decision”.24
[36]The Authority then stated:
[35]The provisions that are determinative are:
21 Re l, above n 2, at [24].
22 At [26].
23 StudyLink “Full-time definition”, above n 17.
24 Re B, above n 2, at [34].
[35.1] Section 67(b), in this case ineligibility for an accommodation supplement arises if [the respondent] would be eligible for a basic grant under the regulations but for her level of income.
[35.2] That turns on reg 12 which is expressed in the negative “no student is eligible … unless”. There is no mandatory entitlement through meeting the criteria. One of the prohibitions is reg 12(c)(i) requiring enrolment in a “full-time course”.
[35.3] The definition of “full-time course” is a recognised course of study “approved by the chief executive as a full-time course”.
[36]There is nothing in the regulations that deem a person entitled to an allowance without the Chief Executive’s discretionary decision. It is obvious that in the ordinary course there will be prescribed courses and it is unnecessary to apply individual decision-making. However, in a particular case if a person created a perverse outcome by some combination of courses that was not acceptable, the Chief Executive could choose to decline to approve that person’s course.
[37]In this case the reality is that [the respondent’s] course was not, for her, full-time. That is the factual reality of her circumstances. The Chief Executive is not obliged to blindly consider she was in a full-time course simply because someone else in different circumstances would be in a full-time course studying for the same papers. That is the point of the legislation providing that entitlement turns on a discretion on the part of the Chief Executive.
[38]The Chief Executive is charged with making decisions that take account of all the material legislation. In this case, the legislation concerns accommodation supplements and student allowances. Under s 401(3) of the Act, when hearing and determining an appeal, the Authority has all the duties, functions, and powers that the Ministry had in respect of the same matter. That includes all of the Chief Executive’s discretionary powers.
[39]We can and must take account of [the respondent’s] circumstances, and the policy in the Act as well as the Regulations. We are satisfied for the factors that apply to [the respondent], not other students generally, identified above in paragraph [30] we determine [the respondent’s] course of study is not approved as full-time, and accordingly she is ineligible under reg 12.
(Footnotes omitted)
[37]The Authority accordingly allowed the respondent’s appeal.
The parties’ submissions
The Ministry’s submissions
[38] As noted, the Ministry says that the Authority erred in law, in that a student’s personal circumstances, and the time that he or she might devote to his or her course of study, is irrelevant to whether the student is “enrolled in a full-time course”.
[39] The Ministry’s starting point is what it says is the proper interpretation of reg 12(1)(c)(i) by reference to the natural and ordinary meaning of the phrase “enrolled in a full-time course”. Counsel for the Ministry, Ms Ewing, submits that in its ordinary sense, “full-time” is understood as an objective measure of the amount of time that a particular activity will occupy.
[40] Ms Ewing accepts that the Regulations do not explicitly define a “full-time course” by reference to a given course load. But she suggests that the definition does not provide any basis to depart from that usual meaning. Counsel highlights that other aspects of the definition emphasise the qualities of the course itself, and no mention is made of the student’s own circumstances.
[41] Ms Ewing accordingly submits that the Ministry’s approach is consistent with the concept of being “enrolled” in a full-time course. She submits that either a student is “enrolled in” a particular type of course or they are not, and that question cannot be affected by how a student approaches their study.
[42] Ms Ewing further submits that this approach is consistent with the context of the Regulations more generally. Elsewhere in the Regulations, references to “full-time” study assume this will represent an objective assessment of the courses a student is taking, without reference to that student’s personal circumstances. Ms Ewing refers, for example, to reg 30, which requires the Chief Executive to suspend a student’s basic grant where the courses the student has passed “in the opinion of the chief executive, [were] equivalent to half of or less than half of a full-time course” (emphasis added). She says that the concept of a full-time course being divided in half suggests it represents a numerical measure of course load, and it
is unclear how this calculation could be undertaken if someone who has a full-time course load may “not in reality be studying full-time”.
[43] The second example referred to is reg 12A, which permits the Chief Executive to “approve a course of study for a student that is less than a full-time course” if certain criteria apply (emphasis added). Ms Ewing submits that this, and the broader context of reg 12A,25 is significant for three reasons:
(a)First, where the Chief Executive has had discretion to consider a student’s personal circumstances as relevant to grant eligibility, the Regulations mention this expressly.
(b)Second, the language used to describe part-time study in reg 12A (“less than a full-time course”) suggests this is a “bright line” concept, not some form of discretionary balancing exercise (in other words, either a course of study is full-time or it is not).
(c)Third, the presence of reg 12A as a “safety valve” for students with difficult personal circumstances suggests that the Chief Executive will not already be considering those circumstances when deciding eligibility under reg 12(1)(c)(i).
[44] Ms Ewing accepts that the Regulations do not require the current measure of EFTS to be used to determine what is or is not a full-time course and that the Chief Executive could “change that measure tomorrow”. But she submits that the scheme of the Regulations overall requires that what is approved as a full-time course is to be tied to an objective measure of workload. Ms Ewing accordingly submits that while the Chief Executive must “approve” an individual student’s course as full-time, the Authority was wrong to suggest that this gives the Chief Executive a broad discretion to distinguish between two students with identical course loads based on their personal circumstances. Ms Ewing says that on the contrary, the Regulations when read as a whole contemplate the Chief Executive setting an objective measure
25 Set out at [21] above.
for what workload will constitute a full-time course of study, and then applying that threshold consistently in the case of individual students.
[45] Ms Ewing also submits that this approach is consistent with the purpose of both the Regulations and the SSA, and in particular, s 67(b)(iii) of the SSA. She submits that the clear purpose of s 67(b)(iii) is to ensure that students cannot access the accommodation supplement simply because they earn too much to claim the equivalent of the student entitlement. Ms Ewing says that the effect of s 67(b)(iii) is intentional, and the Authority should not resort to a purposive interpretation to effectively circumvent that legislative intent. Counsel also submits that it is not perverse to deny welfare assistance to someone who has chosen to study full-time, but made a deliberate choice to engage in a significant enough proportion of work to abate the accommodation benefit under the basic grant to zero.
[46] Ms Ewing also draws support for the Ministry’s approach from earlier iterations of the Regulations. She notes that the Tertiary Bursaries Regulations 1976 (the 1976 Regulations) required the holder of a tertiary bursary to be “enrolled as a full-time student in a recognised course of study” and pursuing “as a full-time student a full-time programme” (emphasis added).26 Ms Ewing notes that subsequent iterations of the Regulations simply required a recipient to be “enrolled … in a recognised course of study” and, in any given year, “enrolled in a full-time programme”27 (or later, a “full-time course”).
[47] Ms Ewing accordingly says that all of the earlier iterations of the Regulations have approached the concept of a full-time course, or full-time programme, as directed to the nature of the programme itself, and it was only the 1976 Regulations that also required the recipient to be pursuing a full-time programme as a “full-time student”. She submits that irrespective of what that additional component was intended to capture, it no longer forms part of the test, having been removed from the baseline eligibility criteria in 1980.
26 Regulation 7.
27 Tertiary Assistance Grants Regulations 1980, reg 19(2).
The respondent’s submissions
[48] The respondent’s submissions centre on the proposition that the requirement for the Chief Executive to “approve” a full-time course is the exercise by the Chief Executive of a discretionary power. Counsel for the respondent, Mr Hoffman, who delivered most of the oral submissions on the respondent’s behalf, refers to this Court’s decisions in Ankers v Attorney-General and Osborne v Chief Executive of the Ministry of Social Development, in which he submits the Court was critical of the Chief Executive making discretionary decisions in a mechanical way (described in Ankers as “a mechanical analysis of input data … by a computer”).28
[49] Mr Hoffman submits that the starting point must be the purpose of the SSA, which is primarily to help people find and retain paid employment. Counsel submits that in her decision-making, the Chief Executive must have regard to the principle of the primacy of finding paid work to offer the best opportunity for people to achieve social and economic wellbeing.29
[50] In exercising what is described as a discretion when deciding whether or not to approve a particular course as full-time, Mr Hoffman submits that it is wrong to consider only the workload required of the course. He argues that this approach fetters the discretion to a narrow and automatic decision to the effect that, if a course has a certain workload, it will be considered full-time.
[51] Mr Hoffman submits that in exercising her discretion, the Chief Executive must consider all mandatory considerations and would not be exercising the discretion wrongly to take into account relevant (albeit not mandatory) considerations. The respondent notes that the Court in Osborne said that when exercising a discretionary power (in that case, the power to seek recovery of overpayments), the Chief Executive is free to consider anything reasonable and relevant to the decision to be made.30
28 Ankers v Attorney-General [1995] 2 NZLR 595 (HC) at 607; and Osborne v Chief Executive of the Ministry of Social Development [2010] 1 NZLR 559 (HC).
29 Referring to SSA, s 4(a)–(c); see [15] above.
30 Osborne v Chief Executive of the Ministry of Social Development, above n 28, at [63].
[52] Mr Hoffman further submits that what is relevant to the present situation is that the respondent is working to support herself and her dependent children, and in doing so, she is doing what the SSA intends and desires working age people to do. In contrast, counsel submits that it is clear that the objective of the Regulations is to provide allowances only to those students whose predominant activity is studying. In this way, Mr Hoffman says that eligibility for a student allowance (and its predecessor, a bursary) has always been restricted only to those students whose main activity is studying and not something else, for example, being in full-time employment. Counsel submits that the original 1976 Regulations illustrate this most clearly, by including the express requirement for a student to pursue a full-time programme as a full-time student. Mr Hoffman says that there is nothing in the legislation to indicate that this underlying intention no longer exists under the current Regulations. To put the point another way, Mr Hoffman argues that there is nothing in the present Regulations to suggest the exclusion of an express reference to pursuing a full-time programme or course “as a full-time student” was intended to have any substantive effect.
[53] Accordingly, Mr Hoffman submits that whether an individual student is studying full-time is a factual question turning on all of the student’s individual circumstances. Counsel says that while it appears the Regulations proceed on an assumption that a student enrolled in a full-time course will engage in study as their predominant activity, it can never be true of every student and the respondent is the perfect example of that.
[54] Responding to the Ministry’s argument that the respondent’s approach creates unacceptable uncertainty in terms of the entitlement to assistance at any given time, Mr Hoffman submits that that is no answer, and that many aspects of welfare benefits turn on a person’s individual circumstances at any given point in time. Counsel refers in this regard to the requirement for a recipient of certain benefits or higher rates of benefits to have at least one “dependent child”,31 which is defined in part as a child whose care is the “primary” responsibility of the recipient.32 Mr Hoffman says that
31 Counsel gives the example of entitlement to sole parent support: SSA, ss 29(a) and 30; and entitlement to a higher maximum amount of accommodation supplement: SSA, sch 4 pt 7 cl 1.
32 SSA, sch 2.
examples like this demonstrate that taking into account individual circumstances does not create insurmountable difficulties in the Chief Executive properly exercising her discretion, and that it would be wrong for the Chief Executive not to consider individual circumstances simply because that would be inconvenient or create additional work. Mr Hoffman submits that an approach to approval of a full-time course that reflects whether the student is undertaking their course load as their predominant activity is a sufficiently objective test, and no less objective than a numerical assessment of course load.
[55] Mr Hoffman further says that there must be “leeway” within the Regulations for the Chief Executive not to approve a course of study as a full-time course on the basis of something other than case load, citing as an example that the subject matter of the course is so very objectionable that it simply should not be approved. Mr Hoffman further submits that it would be artificial and “wilfully blind” to proceed on the basis that if person X is undertaking Y amount of course load, it means X is doing Z amount of study. Counsel accepts that that may normally be the case, but if as a matter of fact that is not actually so, then the student concerned should not be entitled to receive the basic grant as they are not actually engaging in a full-time course.
[56] Pressing the theme that there is an inherent presumption in the Regulations that the relevant student is approaching their course load as their predominant activity, Mr Hoffman submits that the presence of the abatement regime does not undermine that argument. While he accepts that the abatement regime reflects that a student is not undertaking their course as their predominant activity (but rather is devoting “too much” time to work), Mr Hoffman says this operates as a “safety check” only.
Discussion
Summary of approach
[57] A focus of Ms Ewing’s submissions was the interpretation of “full-time course” as that term is used in reg 12, and the proposition that reg 12 (in contrast to reg 12A)
involves the exercise of judgment rather than discretion.33 I consider that the proper focus, however, at least as a starting point, is not reg 12 itself, but rather the definition of a “full-time course” in reg 2 and the concept of the Chief Executive “approving” a recognised course of study as a “full-time course”.
[58]As will be apparent from the discussion of the Authority’s decision at [30] to
[37] above, the decision turned significantly on the Authority’s view that the Chief Executive’s power to approve a recognised course of study as a full-time course is a broad discretionary power and that when exercising that power, it is legitimate to take into account a student’s individual circumstances. I therefore start by considering whether the Chief Executive’s power to approve a course of study as a full-time course is a discretionary power, or whether it is more properly characterised as requiring an exercise of judgment.
Approval as a “full-time course” – discretion or judgment?
[59] There is no clear guideline in the case law for determining whether a decision-making power is discretionary or not. Indeed, the Court of Appeal recently commented in Taipeti v R that the distinction between judgment and discretion “is incapable of precise definition”.34 The Court observed that:
[44] The difference between the appellate approach to an ordinary appeal and an appeal against the exercise of a discretion is therefore not in doubt. The issue has been determining where the distinction between the two types of decisions, and therefore the two types of appeal, lies. There is no decision of the Supreme Court or this Court that sets out a guideline for determining whether a decision is discretionary or not. Tipping J had gone on to observe in Kacem v Bashir, “[t]he distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract.”35 Importantly the Judge noted that “the fact that the case involves a [sic] factual evaluation and a value judgment does not of itself mean the decision is discretionary”.36
(Emphasis added)
33 With reference to the approach adopted in Tyler v Attorney General [2000] 1 NZLR 211 (CA), in which the Court of Appeal distinguished between eligibility for a particular benefit, being an exercise of judgment, and granting relief on the basis of hardship, being an exercise of discretion.
34 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [50].
35 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
36 At [32].
[60] Nevertheless, in Taipeti, which involved a bail appeal, the Court identified several principles to be applied in determining whether a decision-making power confers a discretion.37 In doing so, the Court reviewed the relevant authorities, and I gratefully adopt the Court’s summary:
[45] The meaning of discretion was also discussed in R v Gwaze, where the Supreme Court considered whether a decision as to the admissibility of evidence under the Evidence Act 2006 was a question of law or an exercise of a discretion.38 It concluded that it was a question of law.39 In reaching that conclusion Elias CJ observed:
[49] All the rules of exclusion provided by the Act are binding on judges. Although their application may raise “nice questions of judgment”, they do not confer discretion as to the admission of evidence. They prescribe standards to be observed. Such rules do not therefore assume distinct allocation of responsibility between trial judge and Court of Appeal which restricts appellate oversight. If hearsay evidence is not reliable, the judge must exclude it. If expert opinion evidence does not meet the standard of “substantial helpfulness” set by s 25(1), it is not admissible. If the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding, it must be excluded by the judge. Whether these standards are met entails judgment, not the exercise of a judicial discretion. If the standards are not met and the evidence is wrongly admitted, the error is one of law which can be corrected on appeal.
(Footnotes omitted and emphasis added)
[46] She also stated:40
Compliance with legislative minimum standards, a question of law, may be contrasted with cases concerned with the exercise of discretion entrusted to the trial judge which, unless the discretion has been exercised on wrong principle, do not give rise to error of law. The fulfilment of a statutory condition for admissibility (without which evidence must be excluded) is not the same thing as exclusion in the exercise of discretion. Even if determination of whether the statutory condition is fulfilled turns on a preliminary assessment of fact by the judge, it remains a question of law because “the absence of legal justification for admitting evidence at trial involves a question of law”.
[47] In R v Hughes the Supreme Court dealt with the test for a discharge without conviction under ss 106 and 107 of the Sentencing Act 2002.41 The Court treated the question of whether the test under s 107 was met as a matter
37 Taipeti v R, above n 34.
38 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.
39 At [49] and [51].
40 R v Gwaze, above n 38, at [51] (footnotes omitted).
41 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
of fact requiring judicial assessment.42 Once the s 107 threshold was met, the discretionary power for a court to discharge without conviction arose. Similarly, in Fagan v Serious Fraud Office this Court described the approach to suppression of a defendant’s identity under s 200 of the Criminal Procedure Act 2011 as a two-stage analysis.43 The court must first be satisfied that one of the consequences listed in s 200(2) would be likely to follow if no order were made. If it is satisfied that one of the threshold grounds is established, the court then has a discretion as to whether or not a suppression order should be made.
[61] The Court also referred to its own decision in Ophthalmological Society of New Zealand Inc v Commerce Commission, in which McGrath J said:44
A key indication of a discretion is whether the area for personal appreciation by the first instance court or decision maker is large. In the context of the orders and decisions of Masters, whether the interests involved in a particular matter are purely procedural, or concern wider issues of principle in relation to the application of the law to the facts, will also be relevant to whether a decision is discretionary in nature. In the latter type of case it may more readily be seen that ultimately only one view is legally possible, even if there is scope for considerable argument as to what it is. If that is the case the decision maker does not have the margin of appreciation inherent in discretion.
[62] The Court concluded that “[t]hree possible indicia of the presence of discretion emerge” from the authorities:45
[49] These decisions show that the classes of case which appeal courts classify as an exercise of a discretion are dwindling.46 Three possible indicia of the presence of discretion emerge. First, the extent to which the decision-maker can apply his or her own “personal appreciation” has been identified as a “key indication”.47 Clearly, the greater the level of prescription in terms of what is required of the decision-making process the more likely the decision is an evaluative process, rather than the exercise of a discretion. Second, procedural decisions are more likely to be an exercise of discretion than wider issues of principle involving the application of law to the facts. Third, if only one view is legally possible, that points away from a discretion. In other words, where there is scope for choice between multiple legally “right” outcomes, that points towards a discretion.
[50] Nevertheless, a review of the decisions confirms Tipping J’s observation that the distinction between a discretionary decision, giving rise to limited review, and an evaluative judgment, giving rise to a general review of the
42 R v Hughes, above n 41, at [8].
43 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]. See also Robertson v Police [2015] NZCA 7 at [39]–[41].
44 Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145 (CA) at [37] as cited in Taipeti v R, above n 34, at [48].
45 Taipeti v R, above n 34.
46 See also Financial Markets Authority v Vivier and Co Ltd [2016] NZCA 197, [2016] 3 NZLR 70 at [40]–[46].
47 Ophthalmological Society of New Zealand Inc v Commerce Commission, above n 47, at [37].
merits, is incapable of precise definition. Indeed there are now voices that question whether the distinction continues to have any value.48
[63] Applying these principles, the Court held, contrary to earlier authority, that decisions granting bail are evaluative decisions (that is, requiring judgment) which warrant a full review on appeal. It said:49
[51] The provisions of the Act dealing with pre-trial bail have created a decision-making process that involves an evaluation of stated factors, rather than an unconstrained freedom to choose. The language of the statute is precise. There is no room for vagueness or instinct in the process. In contrast to the previous regime, there is a defined standard according to which the decision must be made. There are mandatory considerations. … There is no discretion to refuse bail if the statutory criteria for continued detention are not met.
(Footnotes omitted)
[64] In contrast to the position in New Zealand, English jurist Francis Bennion draws a clear distinction between judgment and discretion in his article “Distinguishing judgment and discretion” and in his text Bennion on Statutory Interpretation: A Code.50
[65] It should be emphasised that Bennion’s somewhat more emphatic approach is not the law in New Zealand; indeed, as noted above, the courts have declined to draw a precise distinction between judgment and discretion. Moreover, Bennion’s approach is only one view of the distinction. As Ellen France J noted in delivering the annual Ethel Benjamin commemorative address for 2011, Bennion prefers “to identify discretion by contrasting it with judgment” (with there being no overlap between the two concepts), whereas other commentators have favoured “defining discretion by reference to the existence of choice”.51 Nevertheless, Bennion’s explanation is helpful for understanding the hallmarks or indicia of judgment versus discretion, which are also identified in the New Zealand authorities.
48 See MB Rodriguez Ferrere “The Unnecessary Confusion in New Zealand’s Appellate Jurisdictions” (2012) 12 Otago Law Rev 829.
49 Taipeti v R, above n 34.
50 Francis Bennion “Distinguishing judgment and discretion” [2000] Public Law 368; and FAR Bennion Bennion on Statutory Interpretation: A Code (5th ed, LexisNexis, London, 2008) [Bennion on Statutory Interpretation] at 123–130.
51 Ellen France “Discretion, diversity, and other matters of judgment” (Ethel Benjamin commemorative address, 19 August 2011) at 8 and 11–12.
[66] According to Bennion, the function of judgment is to assess a situation which requires a definitive answer.52 The term “evaluate” may be used.53 Certain criteria, which may be express or implied, determine the choice of result.54 These criteria are inflexible, meaning there is notionally only one right answer.55 Therefore, judgment is necessarily restricted because its sole purpose is “to arrive at a conclusion of fact or law which accurately reflects reality”.56 Bennion notes that in practice there may be what Lord Bingham CJ called “the area of judgment”.57 Depending on the precision with which the relevant criteria are identified, different decision makers may legitimately arrive at differing outcomes.58
[67] Bennion explains that discretion, on the other hand, requires the decision maker to determine how to exercise a power of choice.59 Discretion “is usually to be applied where it is expressly left to the judge … to make a determination at any point within a given range”, for example when fixing a sentence at a point within the available range of punishments.60 Bennion observes that a discretion may also relate to two possible alternatives, giving the example of a decision on leave to appeal:61
If asked to give leave to appeal a judge may either grant leave or refuse it. This is discretion not judgment because the decision is left to the judge, and there is no “right” answer.
[68] Bennion emphasises that “[d]iscretion is free, except for limitations placed upon it (expressly or impliedly) by the defining formula under which it is conferred” (emphasis added).62
[69] Viewed against this backdrop, I consider the Chief Executive’s power to approve a recognised course of study as a full-time course is a discretionary power. It
52 Bennion “Distinguishing judgment and discretion”, above n 50, at 369.
53 Bennion on Statutory Interpretation, above n 50, at 125.
54 Bennion “Distinguishing judgment and discretion”, above n 50, at 369.
55 At 369.
56 At 368.
57 R v Criminal Cases Review Commission, ex parte Pearson [1999] 3 All ER 498 (QB) at 523 as cited in Bennion “Distinguishing judgment and discretion”, above n 50, at 369.
58 Bennion “Distinguishing judgment and discretion”, above n 50, at 368.
59 At 373.
60 At 370. Similarly, in New Zealand, sentencing is “the classic illustration” of a discretionary decision: France, above n 51, at 6 citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; and see Heke v R [2010] NZCA 476.
61 Bennion “Distinguishing judgment and discretion”, above n 50, at 370.
62 At 368.
involves the exercise of a choice, rather than an evaluation of facts against certain legal standards in respect of which there is only one “right” legal outcome. Like the example given by Bennion of a Judge either granting leave to appeal or not, the Chief Executive is empowered to approve a recognised course of study as a full-time course or not. The decision is left to the Chief Executive and there is no “right” answer.
[70] But while the power to approve (or not approve) a recognised course of study as a full-time course is a discretionary power, the exercise of that power is not unconstrained. The limits on what might at first blush appear to be a broad discretion were explained by the Court of Appeal in Department of Internal Affairs v Whitehouse Tavern Trust Board, in which the Court stated:63
[88] But, like all such wide discretionary powers, the power conferred on the Secretary by s 116 is not unfettered. It must be exercised lawfully in accordance with the relevant legislative purposes and provisions and taking into account all mandatory and relevant considerations.
[71] Similarly, when exercising a discretionary power, a decision maker must not take into account irrelevant considerations.64
[72] Furthermore, as the authors of De Smith’s Judicial Review explain, “[t]here are degrees of discretion, varying the scope for manoeuvre afforded to the decision-maker.”65
Are a student’s personal circumstances relevant when exercising the discretionary power to approve a recognised course of study as a full-time course?
[73] For the reasons that follow, I accept the Ministry’s submission that the Chief Executive’s power to approve a recognised course of study as a full-time course is limited to doing so by reference to the quantitative attributes of the course of study itself,66 and that a student’s personal circumstances are irrelevant.
63 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 (footnotes omitted).
64 Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 356; and see Philip A Joseph Constitutional and Administrative Law in New Zealand (online ed, Thomson Reuters) at [2.23.2.3].
65 Harry Woolf and others (eds) De Smith’s Judicial Review (8th ed, Sweet & Maxwell, London, 2018) at [5-006].
66 Likely, but not required, to reflect case load.
[74] When deciding whether to approve a recognised course of study as “a full-time course”, the focus is the attributes of the course of study itself, rather than the student’s own circumstances or approach to that course of study. This can be illustrated by, for example, the distinction between “a full-time course” and studying on a full-time basis. The former describes one attribute of the course (being a quantitative feature), whereas the latter describes the student’s actions in relation to that course. The two are quite different concepts, and the submissions made on the respondent’s behalf do not, in my view, appropriately recognise this distinction.
[75] That a full-time course is to be determined by reference to the attributes of the course itself and not a student’s activity is consistent with a student being “enrolled in” a full-time course. As the Ministry submits, either someone is “enrolled in” a particular type of course or they are not, and that question cannot be affected by how a student approaches their study or what additional commitments they might have. This approach is also evident in the definition of a “dependent student”, which is defined in part as someone who is “attending a full-time course”.67 Either someone is attending a full-time course or they are not.
[76] This approach is reinforced by the definition of “recognised course of study”, being one component of the definition of “a full-time course”. A “recognised course of study” is “a course of study leading to the completion of a recognised programme”.68 This again focuses on the course of study itself (by reference to a qualitative feature), rather than the manner in which any individual student approaches that course of study.
[77] All of this is, in my view, consistent with the ordinary meaning of “full-time” in the context of the Regulations, namely an objective measure of the amount of time that a particular course of study is expected to occupy. A useful analogy is the concept of “a full-time job”. In its ordinary sense, this conveys a job that is expected to occupy a certain number of hours per week.
67 Student Allowances Regulations 1998, s 2.
68 Section 2.
[78] Other aspects of the Regulations confirm that a “full-time course” is to be objectively defined by reference to its quantitative attributes. For example:
(a)As noted at [42] above, reg 30(1) requires the Chief Executive to suspend a student’s basic grant where the courses the student has passed are equivalent to “half of or less than half of a full-time course”. It would be impossible for the Chief Executive to make such a determination under reg 30 unless the concept of a “full-time course” were determined by some objective measure that was capable of quantification.
(b)Similarly, under reg 12A, the Chief Executive may approve a course of study for a student that is “less than a full-time course”. Again, the need to determine whether something is “less than” a full-time course suggests that there is a “hard” or objective “edge” to what is approved as a full-time course by the Chief Executive.
(c)A similar theme is seen in reg 12A(1)(b)(iii), which refers to “a course, or combination of courses, that constitutes more than half of a full-time course”.69 Again this suggests an objectively quantifiable attribute of the course or combination of courses, rather than an individual student’s personal circumstances and approach to their study.
(d)Finally, reg 30(2) refers to passing “the required proportion of a full-time course”. A “required proportion” of a full-time course again indicates an objective quantification of what makes up a full-time course.
[79] Drawing these threads together, the Chief Executive’s power to approve a recognised course of study as a “full-time course” is to be exercised by reference to the quantitative attributes of the course of study itself. A student’s personal
69 See also Student Allowances Regulations 1998, regs 12A(2) and 32 and sch 2, which all refer to “more than half” a full-time course.
circumstances, including the amount of time they devote to their studies, are irrelevant to the exercise of the Chief Executive’s discretion.
[80] Before leaving the text and context of the Regulations themselves, two further matters fortify the above approach:
(a)First, reg 12A specifically provides for the Chief Executive to take into account a student’s personal circumstances, though in a highly prescribed way. I accept the Ministry’s submission that the presence of reg 12A as a “backstop” for students with difficult personal circumstances suggests that the Chief Executive will not already be considering those circumstances when deciding whether or not to approve a course of study as a full-time course.
(b)Second, the approach advocated for on the respondent’s behalf would render the abatement regime under the Regulations redundant (or largely redundant). As explained, the abatement regime is predicated on a student’s weekly income, and when that income reaches a certain level, the grant abating to zero. This would not be necessary if a student was only deemed to be “enrolled in a full-time course” in the first place (and thus eligible for the grant) if they pursued their course of study as their predominant activity. I accept Mr Hoffman’s broad proposition that the thrust of the Regulations is to “look after” those students whose predominant activity is studying and not doing something else. But that is reflected in the basic grant being abated the more a student is in fact “doing something else” (namely working), rather than in the concept of the student being “enrolled in a full-time course”.
[81] The approach outlined at [79] above is also more consistent with common sense, and promotes transparency and certainty. It avoids creating arbitrary distinctions between students studying an identical course load. It also enables students to clearly understand what is required for them to be “enrolled in a full-time course” and their resulting entitlement to allowances, and to plan accordingly.
[82] Accordingly, while I accept Mr Hoffman’s submission that study being a student’s “predominant activity” is an objective measure, the difficulty is that such a measure, which focuses on the student’s activity rather than the attributes of the course of study, is simply not evident in the Regulations themselves. The example given by Mr Hoffman of certain benefits payable in relation to a child whose care is the “primary” responsibility of the recipient does not assist. That threshold for payment is expressly tied to the recipient’s personal circumstances.
[83] I also do not agree that the concept of a student actually studying full-time, or study being a student’s predominant activity, remains “embedded” in the Regulations despite the removal of that express requirement from the 1976 Regulations in 1980.70 To recap: one of the two requirements of the holder of a tertiary bursary under the 1976 Regulations was that the student was “pursu[ing] in New Zealand as a full-time student a full-time programme…”.71 Importantly for present purposes, this reflects the two distinct concepts discussed at [74] above, the first directed to the student himself or herself, the second to the programme or course.
[84] Nothing has been found to explain the rationale for the removal of the requirement in the 1976 Regulations to pursue a full-time programme as a full-time student. The concept of being “a full-time student” did not disappear altogether, however, but was shifted elsewhere, to two supplementary grants available where a student’s individual circumstances might affect the way he or she approached his or her studies.72 The removal of the concept from eligibility for a student grant and a shift to the supplementary grants tends to suggest a deliberate change. Later iterations of the Regulations do not shed any further light. The two supplementary grants did not feature in the Student Allowances Regulations 1988, and the concept of pursuing study “as a full-time student” has not featured in the student allowances regulations again.
70 Tertiary Assistance Grants Regulations 1980, reg 19(2)(b).
71 Tertiary Bursaries Regulations 1976, reg 7. The concept of being “enrolled as a full-time student” was undefined.
72 The first was a supplementary hardship grant, available where the recipient of a study grant would otherwise suffer financial hardship and be “unable to pursue his studies as a full-time student” (Tertiary Assistance Grants Regulations 1980, reg 37(1)); and the second a special grant, available where the recipient of a study grant had a spouse and dependent children or other exceptional circumstances, and would otherwise suffer financial hardship and be “unable to pursue his studies as a full-time student” (reg 38(1)).
[85] Whatever the rationale for these legislative changes, however, the presence of the requirement to be a “full-time student” in the 1976 Regulations does not in my view assist the respondent’s argument, and if anything, undermines it. As noted already, it serves to highlight the distinction between being a full-time student and being enrolled in a full-time course.
[86] I also do not accept Mr Hoffman’s suggestion that there must be sufficient leeway in the Chief Executive’s discretionary power to approve something as a full-time course by reference to attributes unrelated to course load, such as (to use the example given by counsel) declining to approve a course of study as a full-time course on the basis that its content is objectionable. What the Chief Executive is to approve (or not approve) as a full-time course is a “recognised course of study”. That is a course of study leading to a “recognised programme”.73 As can be seen from the definition of the latter term, the gist of that definition is a programme of some merit, approved as such by the relevant regulators. A truly objectionable course of study would not lead to a “recognised programme” and thus would not be a “recognised course of study”. That is the proper place for the assessment of the qualitative attributes of a course of study, leaving approval as a full-time course focused on its quantitative attributes.
[87] Finally, but no less importantly, the approach adopted is consistent with the relevant legislative purposes. As the Ministry notes, different policies and purposes apply to the provision of state assistance to those in hardship generally, and to those studying in New Zealand. Key purposes of the SSA are to help people to support themselves and their dependants while not in paid employment, to help people for whom work is not currently appropriate and to provide financial support to alleviate hardship.74 In other words, to help those who are unable, for a variety of reasons, to help themselves. The purpose of the Regulations is to provide targeted financial support to those studying in New Zealand. Reflecting the long-term economic benefits accruing to individuals from undertaking tertiary education, student support is shared between taxpayers, individual students and their families.75 Because of these different
73 Student Allowances Regulations 1998, s 2.
74 SSA, s 3.
75 See [18] above.
underlying policies and purposes, the SSA is clear that financial assistance to students is to be determined under the bespoke regime for such support, namely the Regulations. In relation to the accommodation supplement in particular, that is the very purpose of s 67 of the SSA.
[88] For these reasons, it is not a perverse outcome that a student enrolled in a full-time course might receive neither the accommodation supplement under the SSA nor the basic grant under the Regulations. On the contrary, such an outcome is expressly envisaged by s 67(b)(iii) of the SSA.
Result
[89] The respondent’s approach to her studies and her other commitments, including the care of her two children and work, is to be commended. One can understand the Authority’s view that there was a degree of unfairness in the respondent losing her accommodation supplement, yet not being entitled to the basic grant under the Regulations by simply increasing her course load to complete her studies as quickly as possible. Yet this was not a perverse outcome or a legislative quirk under the statutory regime. Rather, it was an anticipated consequence of the statutory regime, and s 67(b)(iii) of the SSA in particular.
[90] The Authority accordingly erred in law when deciding whether to approve the respondent’s recognised course of study as a full-time course by taking into account an irrelevant consideration, namely the respondent’s work and other personal commitments. The answer to the question of law stated by the Authority for the opinion of the Court is therefore “yes”.
[91] I do not make any further orders at this stage, in terms of whether the Court should reverse, amend or remit the Authority’s determination, or make any other order that is just. I am conscious that reversing the Authority’s determination may, if the respondent has been paid the accommodation supplement in the period following the Authority’s decision, require her to repay that supplement, which may be a significant amount given the effluxion of time in the Ministry’s appeal being heard and determined, over which the respondent had no control.
[92] I invite the parties to confer and ideally file a joint memorandum within 15 working days of the date of this judgment as to whether any further orders are required from the Court. If a joint memorandum is not possible, separate memoranda are to be filed within the same timeframe. The memorandum or memoranda should also address the question of costs.
[93] Unless I need to hear further from counsel, I will then determine any remaining matters on the papers.
Fitzgerald J
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