Chief Executive of the Ministry of Social Development v B

[2025] NZHC 3042

ORDER: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF RESPONDENT IS PROHIBITED BY ORDER MADE AT [50]

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-008

[2025] NZHC 3042

IN THE MATTER

of an appeal by way of Case Stated from a determination of the Social Security Appeal Authority at Wellington under s 405 of the Social Security Act 2018

BETWEEN

CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Appellant

AND

B

Respondent

AND

COMMUNITY LAW CENTRES AOTEAROA

Intervener

Hearing:

20 August 2025

Appearances:

K M Eckersley and S J Edwards for Appellant B C Hoffman for Respondent

J LW Wass and J R Rennie for Intervener

Judgment:

14 October 2025

JUDGMENT OF GRICE J

(Appeal by way of case stated on questions of law) (Anonymous version)

CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v B [2025] NZHC 3042

[14 October 2025]

Introduction

[1]    The Chief Executive of the Ministry of Social Development (the Ministry) brings an appeal, by way of case stated on questions of law,1 against a decision of the Social Security Appeal Authority (the Authority).2 Ms B, the respondent, indicated that she would abide the decision of the Court  and would not  make submissions.  Mr Hoffman, for Ms B, attended the appeal hearing on a watching brief. Community Law Centres Aotearoa (the intervener) was granted leave to intervene and acted as contradictor on appeal.3 It made submissions and appeared at the hearing.

[2]    Ms B received main  benefit  payments  from  the  Ministry  under  the  Social Security Act 2018 (the SSA), as well as receiving retrospective compensation payments (ACC arrears) from Accident Compensation Corporation (ACC) over the same period. The issues before the Court relate to the interpretation of the statutory mechanism directed at ensuring there is not payment both of a main benefit and ACC compensation within the same period.

[3]The questions of law for this Court to determine are:

(a)Question one: Did the Authority err in law in determining that s 252 of the Accident Compensation Act 2001 (the ACC Act) is a retrospective deeming provision that does not dismantle a main benefit that was properly constituted?

(b)Question two: Did the Authority err in law in determining that entitlement to disability allowance and temporary GST assistance requires that a person be receiving a main benefit?

[4]    The Ministry notes that the determination of the questions of law in this case will affect five Authority decisions and 22 appeals which are pending. Mr Wass, for

1      Social Security Act 2018 [SSA], s 405.

2      Re [B] [2024] NZSSAA 10 [Authority decision].

3      Chief Executive of the Ministry of Social Development v [B] HC Wellington CIV-2025-485-8, 15 July 2025 (Minute of La Hood J).

Community Law, notes that many of the centre’s clients have cases which will be affected by the outcome of this decision.

The Social Security Appeal Authority decision

[5]    The Authority outlined the factual background to the matter in its decision. From 2006, the Ministry had paid Ms B various social security benefits.4 In 2019, ACC paid Ms B ACC arrears for the period from 2006 to 2018.5 The Ministry reviewed her benefit entitlements in light of the ACC arrears. It determined that she had been overpaid a total of $131,494.28, comprising $117,570.81 in main benefits and $13,923.47 in supplementary assistance.6 The Ministry recovered the main benefit overpayment directly from ACC, but sought to recover the supplementary assistance overpayment from Ms B.7

[6]    Ms B challenged  the  Ministry’s  approach  by  way  of  appeal  to  the  Social Security Appeal Authority. She argued that the ACC arrears should not have been treated as income allocated to past years, which deprived her of her entitlement to supplementary assistance.8 She also raised concerns about the tax implications of receiving the ACC arrears in a single tax year.9

[7]The Authority noted that the appeal focused on two main issues:10

(a)Was the Ministry correct in establishing a total “overpayment” of

$131,494.28?

(b)Are there any differences between the main benefits and the forms of supplementary assistance Ms B received?

4      Authority decision, above n 2, at [11.1].

5      At [11.2].

6      At [11.4].

7      At [11.6].

8 At [3].

9      At [15.1]-[15.2]].

10     At [18.2]

[8]    The second issue related to whether the Ministry’s approach to reallocating ACC arrears to past periods was consistent with the statutory provisions and was equitable.

[9]    The Authority reviewed the statutory provisions governing the treatment of ACC arrears and social security benefits, noting:

(a)Section 252 of the ACC Act applies where a person has received a main benefit in the same period as an entitlement from ACC.11 In those circumstances, an “excess benefit payment” up to the amount of the ACC entitlement is regarded as having been paid. The ACC payments are therefore deemed to have been benefit payments, and ACC is required to refund the excess benefit payment to the Ministry.12 The definition of “main benefit” sets out a closed list of various types of benefits.13 Other benefits not included are referred to as supplementary assistance.

(b)Sections 197, 198, and 304 of the SSA allow the Ministry to review benefit entitlements and adjust payments retrospectively. However, these provisions do not override the deeming effect of s 252 of the ACC Act.14

[10]   The Authority considered the Ministry’s discretion to allocate income to past periods under cl 13 of sch 3 of the SSA. The Authority noted that if Ms B had been required to reimburse the main benefit to the Ministry because of the retrospective payment of ACC entitlements, she may have been disadvantaged by a higher tax rate applied to the ACC arrears (due to receipt in a lump sum).15

11 At [22]–[31] and [58]. Accident Compensation Act 2001 [ACC Act], s 252(1)(a) notes that the section applies if a person receives a “specified benefit” under s 198(3) of the SSA. SSA, s 198(3) defines specified benefit as including “a main benefit”.

12 That is practically calculated by taking the amount actually paid (benefit payment plus ACC entitlements) and taking away the amount of benefit properly payable (amount of ACC entitled to), over that same period: see ACC Act s 252(3) and (4).

13     SSA, sch 2 definition of “main benefit”.

14     Authority decision, above n 2, at [51]–[60].

15     Except the extent of a main benefit to which s 252 applies: at [108.9].

[11]   The Authority concluded that s 252 of the ACC Act was the appropriate mechanism for recovery. The main benefit payments were deemed to have been ACC weekly compensation, meaning there was no overpayment by the Ministry in law.16 The Ministry had already been reimbursed $117,570.81 under s 252 by ACC for the main benefit Ms B had received. 17

[12]   The Ministry also sought to recover $13,923.47 in supplementary assistance by reallocating the ACC arrears to past periods covering those assistance payments. It argued that supplementary assistance payments were made based on Ms B’s entitlement (to a main benefit under the SSA) and her needs at that time. The Authority concluded that this approach was inequitable in the circumstances and inconsistent with the statutory deeming provision in s 252 (for the main benefit) which precluded any further adjustments.18

[13]   The Authority allowed the appeal, concluding that there was no overpayment of benefit entitlements to Ms B.19

Legal principles

[14]   Section 198 of the SSA defines “specified benefit” as including a main benefit. Insofar as relevant, it provides:

198Loss of earnings compensation under Accident Compensation Act 2001

(1)This section applies if—

(a)     a person (P) is entitled to a specified benefit as defined in subsection (3); and

(b)     either of the following persons is entitled to receive or receives weekly loss of earnings compensation:

(i)P, on P’s own account or in respect of P’s spouse or partner or of P’s dependent child:

(ii)P’s spouse or partner.

16     At [45]–[47].

17     At [71]–[73].

18     At [110]–[112].

19 At [113].

(2)MSD must reduce the rate of the specified benefit payable to P by the amount of weekly loss of earnings compensation received by P or P’s spouse or partner (unless this subsection does not apply because of the exception in clause 31 of Schedule 1).

(3)In this section,—

specified benefit means a main benefit under this Act, an orphan’s  benefit, an unsupported child’s benefit, and a veteran’s pension subject to abatement under section 171 of the Veterans’ Support Act 2014

weekly loss of earnings compensation means weekly compensation for loss of earnings or loss of potential earning capacity payable to a person under the Accident Compensation Act 2001.

[15]Section 252 of the ACC Act provides:

252 Relationship with social security benefits: reimbursement by Corporation

(1)This section applies if a person—

(a)     receives a payment of a specified benefit as defined in section 198(3) of the Social Security Act 2018 in respect of a period; and

(b)     establishes a claim to an entitlement from the Corporation in respect of all or part of the same period.

(2)An excess benefit payment is regarded as having been paid in respect of that entitlement.

(3)An excess benefit payment is the part of the benefit payment (up to the amount of the entitlement) that is in excess of the amount of benefit properly payable, having regard to the entitlement under this Act.

(4)The Corporation must refund the excess benefit payment to the department responsible for the administration of the Social Security Act 2018—

(a)     if the Corporation knows that this section applies; or

(b)     if requested to do so by that department.

…

(6)Any amount that is treated under this section as having been paid in respect of any treatment, service, rehabilitation, related transport, compensation, grant, or allowance is deemed for all purposes to have been so paid.

Benefits and supplementary assistance received

[16]   Ms B received a specified benefit during the same period for which she received the backdated payment of ACC entitlements. As a result, she had received an “excess benefit payment” which triggered the application of s 252. The Ministry does not challenge this finding.

[17]Ms B also received the following supplementary assistance:

(a)Accommodation supplement: a discretionary grant that may be paid for the period that the Ministry determines a person: has accommodation costs; meets the asset requirements set out in the Social Security Regulations 2018; and is not excluded by the social housing or other funding exclusions.20 The supplement is asset tested and does not require the person to be receiving a main benefit. However, the way in which the rate of the accommodation supplement is calculated is affected by whether the person is or is not a main beneficiary.21

(b)Disability allowance: a discretionary grant of support to a person with ongoing reduced independent function. The eligibility criteria for a disability allowance are set out in s 85(2) of the SSA as follows:

85     Disability allowance: discretionary grant

…

(2)The criteria for eligibility are that—

(a)     the person has a disability that has resulted in a reduction of the person’s independent function to the extent that the person requires—

(i)ongoing support to undertake the everyday functions of life; or

(ii)ongoing supervision or treatment by a health practitioner; and

(b)     the disability is likely to continue for at least 6 months; and

20     SSA, s 65(1).

21     Social Security Regulations 2018, reg 18.

(c)     either—

(i)the person is receiving a main benefit under this Act; or

(ii)the person’s income (including the income of the person’s spouse or partner and any New Zealand superannuation or veteran’s pension payable to the person or the person’s spouse or partner) is less than the appropriate amount in Part 3 of Schedule 5; and

(d)     the person has additional expenses of an ongoing kind arising from the person’s disability  (subject  to clause 19 of Schedule 3) and the assistance towards those expenses available under this Act or any other enactment is insufficient to meet them.

(c)Temporary GST assistance: a time limited financial assistance programme put in place from 1 October 2010 to 31 March 2011 to compensate for the effect of the increase in the rate of GST tax on the purchasing power of specified payments.22 Eligibility for temporary GST assistance was contingent on a person being in receipt of an open “specified payment”, which included various Ministry benefits.

(d)Winter energy payment: an entitlement to a payment if a person is receiving a qualifying benefit (being a main benefit, superannuation, or a veteran’s pension).23

Question one: Interpretation of s 252

Submissions

[18]   The Ministry says that the Authority made an error in its interpretation of s 252. It says that s 252 means that the main benefit payments made by the Ministry are “for all purposes” deemed to have been ACC compensation payments. Therefore, during the relevant period, Ms B could not be regarded as a recipient of a main benefit. Consequently, she was either not entitled to the supplementary assistance payments

22 Social Security (Temporary Additional Support) Amendment Regulations (No 2) 2010. See also “Temporary GST Assistance Programme” (9 September 2010) 115 New Zealand Gazette 3055 at 3098.

23 SSA, s 71.

she had received, or the amount payable would have been affected. The Ministry points out that due to her income, Ms B would have still been entitled to receive an accommodation supplement for most weeks even if she was not in receipt of a main benefit. However, that would be calculated on a non-beneficiary basis rather than a main beneficiary basis, so the level of the supplement would be affected. The Ministry also notes Ms B would have retained eligibility to receive a disability allowance, as her income was below the qualified threshold.

[19]   However, the Ministry says that, given Ms  B  was  not  in  receipt  of  a  main benefit, she would not have been eligible for a winter energy payment nor temporary GST assistance, as she did not meet any other qualifying criteria at the time.

[20]   The Ministry submits that s 252 has long been recognised to be a deeming provision, referring to Cullen v Accident Compensation Corporation.24 It says this was accepted by the Authority, pointing to the following excerpts from the decision under appeal:

(a)“… the recipient of the benefit… within the scope of s 252 is regarded as having received those benefits in respect of ACC entitlements”.25

(b)“… in law the Ministry did not make any main benefit payments to Ms B to the extent they are covered by ACC arrears”.26

(c)“By law what were formerly main benefit payments are deemed to be for all purposes weekly ACC payments.”27

(d)“… s 252 provides that those payments of benefit are to be ‘regarded as having been paid in respect’ of ACC weekly payments. It follows in law pursuant to s 252(2) and (6) the Ministry did not pay benefits”.28

24     Cullen v Accident Compensation Corporation [2013] NZHC 941 [Cullen HC] at [33].

25     Authority decision, above 2, at [31].

26 At [46].

27     At [57.1].

28 At [71].

(e)“As we have said, s 252 of the ACC Act deems there were no main benefit payments”.29

(f)“Section 252 of the ACC Act operates equitably. It deems her main benefits were not paid to the extent of equivalent ACC arrears. She is deemed to have always received ACC weekly payments”.30

[21]   However, the Ministry suggests that the Authority’s ultimate findings regarding the consequential effect of s 252 are incongruous with its above comments. In particular, the Ministry challenges the finding that s 252 did not deem that Ms B did not hold a main benefit during the relevant period,31 and that s 252 did not dismantle the main benefit that was properly established at the time.32

[22]   The Ministry points to the plain and ordinary meaning of the words of s 252, which states that a main benefit payment “is regarded as” having been paid in respect of a person’s ACC compensation entitlement. Furthermore, the Ministry notes that one of the purposes of the SSA is to ensure that the financial support provided to people by the Ministry takes into account “any financial support that they are eligible for or already receive, otherwise then under this Act, from publicly funded sources”.33

[23]   In addition, the Ministry says that where an overpayment has been found, the Ministry is under a mandatory statutory duty to recover the debt, as in this case.34

[24]   Mr Wass  supports the Authority’s decision.  He submits that the purpose of   s 252 is to prevent dual recovery by way of a main benefit and an ACC entitlement. It achieves its purpose by requiring ACC to reimburse the Ministry for the main benefit in excess of the sum of the ACC entitlement. However, s 252 does not say that the main benefit was never  received, as that is not necessary to achieve its purpose.    Mr Wass further submits that the Ministry’s interpretation of s 252 would impose unexpected and potentially significant debts on persons who were least able to repay

29 At [95].

30     At [108.1].

31     At [108.4].

32 At [47].

33     SSA, s 3(c)(ii).

34     Section 362.

them.    This would be contrary to the ACC Act and the SSA, as well as general principles of law, including estoppel.

Analysis

[25]   Section 10(1) of the Legislation Act 2019 provides that the “meaning of legislation must be ascertained from its text and in light of its purpose and its context”. The text of legislation includes the indications provided in the legislation, for example, headings and the organisation and format of the legislation.35

[26]   Section 252 of the ACC Act focusses on past payments of a main benefit. Section 198 of the SSA governs current and future treatment of loss of earnings compensation (through ACC) and its relationship to a specified benefit. Where that section applies, the Ministry must reduce the rate of the specified benefit by the amount of the weekly loss of earnings compensation received by the beneficiary.

[27]   Section 252 of the ACC Act is titled “[r]elationship with social security benefits: reimbursement by Corporation”. It refers to “an excess benefit payment” as being “regarded as having been paid in respect of that entitlement”.36 It further says that “[a]ny amount that is treated under this section as having been paid in respect of any… compensation… is deemed for all purposes to have been so paid”.37

[28]   In Cullen v Accident Compensation Corporation, the Court of Appeal noted that “the purpose of s 252 is to prevent a beneficiary from retaining the benefit of payments made under the Social Security Act in claiming, in arrears, payments from the Corporation in respective of his or her entitlement under the [ACC Act]”.38

[29]   This Court in Hill v Chief Executive of Ministry of Social Development considered an argument that s 252(6) affected the appellant’s entitlement to a benefit and so whether he owed money to the Ministry.39 The Court referred to observations

35     Legislation Act 2019, s 10(3) and s 10(4).

36     Section 252(2).

37     Section 252(6).

38     Cullen v Accident Compensation Corporation [2014] NZCA 94 [Cullen (CA)] at [12(d)] and [13], citing Cullen (HC), above n 24, at [33].

39     Hill v Chief Executive of Ministry of Social Development [2019] NZHC 1661. This was decided under the Social Security Act 1964.

of the authors of Personal Injury in New Zealand, noting that s 252(6) was intended to reduce a claimant’s tax liability by removing the amount of reimbursement from the total weekly compensation reported as paid in the current tax year.40 The authors went on to note that:41

Subsection (6) is best interpreted in accordance with this intention — ie that the amount of an ACC reimbursement to Work and Income is not included in the weekly compensation the ACC claimant would otherwise currently have to pay tax on.

[30]   The Court in Hill considered the purpose of s 252(6) in this context and found that the section could not be read with the meaning advanced by the appellant, “for the simple reason it is not directed at benefit eligibility”.42

[31]Burrows and Carter Statute Law in New Zealand notes that:43

… there can be considerable difficulty in being required to treat a thing as something that it patently is not.44 Sometimes the only sensible conclusion is that the legislation requires that X be treated as Y not for all purposes, but only for some:45

When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to …

[32]   The Adoption Act 1955 is cited as example of a legal fiction by the Ministry and is noted in Burrows and Carter as being the closest example in New Zealand to an absolute deeming provision — but even then, there are exceptions.46 Section 16 of the Adoption Act provides that the effect of an adoption order is that the child is deemed to become the child of the adoptive parent “as if the child had been born to that parent”.

40 At [8].

41     John Blincoe and others Personal Injury in New Zealand (online looseleaf ed, Thomson Reuters) at [AC252.06].

42     Hill, above n 39, at [9].

43     Ross Carter Burrows and Carter on Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 592.

44     See the discussion in Scott v Commissioner of Stamp Duties [1939] NZLR 293 (CA).

45 Re Levy, ex parte Walton (1881) 17 Ch D 746. See also Searle v Purnell [1952] NZLR 95 (SC); Picton Borough v Marlin Motels (1971) Ltd [1975] 1 NZLR 65 (SC); and Rhodes v Allied Dunbar Pension Services Ltd [1987] 1 WLR 1703 (Ch), reversed [1989] 1 WLR 800 (CA).

46 Carter, above n 43, at 593.

[33]   In my view, the wording of s 252(6) suggests the deeming provision only applies to payment of the ACC entitlement “for all purposes” and cannot be interpreted more expansively. Consequently, no one can argue that the ACC entitlement has not been paid. The purpose of s 252 is  to  ensure  there is  no double recovery of  a  main benefit, by providing for a mechanism for payment direct between the two relevant agencies. The appropriate interpretation is that the deeming effect of s 252 only relates to payment and does not extend to deem the beneficiary never to have received the specified benefit for which they were eligible at the time of receipt.

[34]   The excerpts from the Authority’s decision pointed to as supporting the Ministry’s argument that the deeming changes the nature of the main benefit at the time of receipt take that matter no further. They are isolated comments which are taken out of context. The material finding of the Authority is consistent with the interpretation of s 252(6) as deeming only the ACC payment to have been paid, not with a retrospective deeming provision changing the nature of the main benefit. It says:

[110]          Accordingly, the point we have made that s 252 does not dismantle the main benefit is important. Section 252 deems the main benefit payments to have been ACC weekly compensation. The approach of establishing an overpayment by removing the benefit is inconsistent with s 252. Furthermore, s 252 provides for the Ministry to be reimbursed for the main benefit payments, that too is inconsistent with establishing an overpayment.

[111]          We are satisfied that the main benefit was properly constituted at the time, and exercising a discretion to retrospectively change that position where it is inconsistent with a statutory deeming provision is wrong.

[35]   The Ministry submits that this interpretation could be unfair because beneficiaries receiving weekly ACC compensation (which is offset dollar for dollar against their benefit) would be in a worse position than those who received a retrospective payment. This is because those receiving weekly ACC compensation do not in fact receive any main benefit and therefore would not qualify for supplementary assistance, whereas those who received a retrospective payment would have only the main benefit deducted from the ACC arrears, not any supplementary assistance they had received. However, as Mr Wass points out, the recipient of the supplementary assistance needed and was eligible for the assistance at the time. Furthermore, the Ministry’s interpretation could result in the state retrospectively imposing potentially

significant debts on persons of limited means, through no fault of their own. This would be contrary to both the purposes of the ACC Act and the SSA, which provides, among other things, for the provision of financial support to people to help alleviate hardship.47

[36]   Mr Wass did not suggest that there was a defence of estoppel available, but that an analogy to estoppel could be made. This is because the supplements had been received in good faith, the recipient reasonably relied on the representation by the Ministry that they were entitled to it, and the recipient changed their position in reliance on the representation by  spending  the  money  on  essentials.  Therefore, Mr Wass submits it would be unconscionable for the Ministry to depart from that understanding.

[37]   There are statutory provisions preventing the recovery of benefits paid in specific circumstances. I acknowledge the Ministry’s submission that, on one view, it could be seen as unfair and inequitable as present recipients of ACC whose benefits are being offset will have their supplements affected, while those receiving retrospective payments triggering the s 252 process will not. However, in my view a greater inequity will arise, as Mr Hoffman for Ms B points out, if a recipient  of  ACC arrears, having had to wait for those payments (and likely having taken the matter through dispute resolution processes to obtain them), was then required to repay the supplementary assistance.

[38]   Accordingly, in relation to question one, the Authority did not err in law in determining that s 252 of the ACC Act is a retrospective deeming provision but that it does not dismantle a main benefit that was properly constituted.

Question two: Entitlement to disability allowance and temporary GST assistance

[39]   The Ministry did not address the second question of law in oral submissions, but relied on its written submissions. The Ministry says the Authority made an error of law in its comments at [109] of its decision:48

47     SSA, s 3(b).

48     Authority decision, above 2, at [109].

[109] We need to consider the disability allowance, GST rate change and Winter energy assistance in relation to another criterion. Each of them requires that a person is receiving a main benefit. That is except for the winter energy payments, where it may be either a main benefit (which is income tested), or New Zealand Superannuation or a Veteran’s Pension (neither of which are income tested). However, in this case we are only concerned about a main benefit.

[40]   It is common ground that a person who is not in receipt of a main benefit may nevertheless be eligible for a disability allowance and temporary GST assistance. A disability allowance may also be granted based on income level, while temporary GST assistance is contingent on a person being in receipt of a “specified payment” (which includes a variety of benefits, pensions, and grants beyond a main benefit).

[41]   Mr Wass agrees with the Ministry that the impugned comment of the Authority at [109] is wrong. However, he submits that it is a slip and does not point to an underlying mistake in the Authority’s interpretation of s 252.

[42]   I agree. It is apparent that the comments at [109] are merely a slip and should not be read in isolation. Three paragraphs later, the Authority’s comments make it clear that it was mindful that the Ministry’s argument relied on the main benefit not being received (or deemed so) at the time of the payment of the supplementary assistance, as follows:

[112] To the extent it was a requirement to have a main benefit, for a disability allowance, assistance with the GST rate increase assistance, and the Winter energy payments, we are satisfied there is no justification for purporting to alter that position as doing so is inconsistent with s 252.

[43]   While the decision contains an error at [109], it is not material and does not give rise to any error of law relating to the Authority’s determination. Question two is framed to suggest that the Authority has made a determination which gives rise to an error of law. That is not the case. The impugned comment is more in the nature of a slip and is not a determination which gives rise to any material issue affecting the Authority’s decision.

Conclusion

[44]For the reasons set out above:

(a)The Authority made no error of law in relation to question one:

Did the Authority err in law in determining that s 252 of the Accident Compensation Act 2001 is a retrospective deeming provision that does not dismantle a main benefit that was properly constituted?

(b)The Authority made no error of law in relation to question two:

Did the Authority err in law in determining that entitlement to disability allowance and temporary GST assistance requires that a person be receiving a main benefit?

[45]The appeal is dismissed.

Costs

[46]   The usual position is that costs follow the event. While the respondent abided and did not make submissions opposing the appeal, Mr Hoffman nevertheless provided helpful submissions on the relevant legal provisions. He attended the appeal primarily to keep a watching brief, as he remains instructed to represent Ms B before the Social Security Appeal Authority in the event this Court decided to remit the matter back to it. In these circumstances, clearly Ms B is not entitled to full scale costs. Nevertheless, I grant leave for Ms B to file an application for costs and supporting submissions on or before four days from the date of this judgment. The Ministry then has a further five days to file submissions in response.

[47]   In relation to the intervener, in granting leave to intervene La Hood J noted there would be no order for costs between the intervener and the parties, but without prejudice to any application under s 178(2)(b) of the Senior Courts Act 2016. I note the intervener acted as the primary contradictor and was of assistance to the Court in that regard. Accordingly I set the same timetable for any application by the intervener in relation to costs as I have set for Ms B above.

Suppression

[48]   I  note  that  the  Authority’s  decision  is  stamped   with   the   words   “Order prohibiting the disclosure of [Ms B’s] name” without any further reference to this order in the decision itself.

[49]   The provisions of sch 8, cl 10(1) of the SSA require that the Authority’s sittings be in private unless it orders otherwise. I presume it is on this basis that the Authority prohibits publication of the name of the beneficiary.

[50]   The parties agree an order should be made suppressing Ms B’s name. I note the sensitive nature of some of the evidence and the details of Ms B’s circumstances (which are relevant to the decision), as well as the fact that the SSA protects the identity of recipients of benefits by requiring hearings to be in private. Therefore, I make an order suppressing Ms B’s name. The public version of this decision will be anonymised.

Grice J

Solicitors:

Crown Law Office, Wellington for Appellant Exeo Legal, Auckland for Respondent

Gilbert Walker, Auckland for Intervener