Chief Executive of the Ministry of Social Development v CV
[2019] NZHC 3135
•29 November 2019
ORDER PROHIBITING DISCLOSURE OF RESPONDENT’S NAME IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-485-216
[2019] NZHC 3135
IN THE MATTER of an appeal by way of case stated under section 12Q of the Social Security Act 1964 BETWEEN
CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Appellant
AND
CV
Respondent
Hearing: On the papers Appearances:
O Upperton for the Appellant Respondent in person
H Peart counsel appointed to assist the Court
Judgment:
29 November 2019
JUDGMENT OF MUIR J
This judgment was delivered by me on 29 November 2019 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Solicitors:
Crown Law, Wellington.
Schmidt & Peart Law Ltd, Onehunga
Copy to: Respondent
CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v CV [2019] NZHC 3135 [29
November 2019]
Introduction
[1] The Chief Executive of the Ministry of Social Development (the Chief Executive) appeals by way of case stated from a decision of the Social Security Appeal Authority (the Authority).1 The Chief Executive, the respondent and counsel appointed to assist the Court, Mr Peart, all agree that the appropriate outcome is an amendment of the case stated as filed, and orders quashing the Authority decision and remitting the matter to the Authority for reconsideration. I intend to order accordingly.
Background
The respondent’s complaint
[2] The respondent became eligible for New Zealand Superannuation (NZS) on 19 April 2012 when he turned 65. He was at that time in fulltime employment and did not consider himself eligible for NZS. He ultimately applied for superannuation on 7 October 2015 and NZS commenced from that date.
[3] Through various review and appeal processes, however, the respondent sought to have his NZS backdated to the date when he turned 65. He relied on s 80AA(2)(a)(i) of the Social Security Act 1964 (the Act) which allows the Minister of Social Welfare to consent to payment of a benefit from a time earlier than application if the benefit had not been applied for or granted due to “some erroneous action or inaction on the part of the Department”. Although that argument was rejected by the Department’s Deputy Chief Executive (acting under delegated authority of the Minister) and although this decision was upheld by the Benefits Review Committee, a further appeal by the respondent to the Authority was successful.
The Authority’s decision
[4] The Authority considered that the factual background relating to the appeal was not in dispute. Significantly, the Authority recorded that the respondent’s stated reason for not applying for NZS on the date he turned 65 was that, “he was not aware that he was entitled to NZS while he was in paid employment”.2
1 In the Matter of an Appeal by [the respondent][2018] NZSSAA 029.
2 At [4].
[5] The decision records acceptance by the respondent that he received a letter from Inland Revenue (IRD) “when he turned 65”,3 but he stated that the IRD letter contained nothing to indicate he would be eligible for NZS while working, nor did it require him to complete an application. He also said he did not expect the IRD to be sending him information “relating to some benefit” because “IRD take money from you”.4
[6] Although the letter from IRD was not produced to the Authority (and the Chief Executive said it was not within her power to request it), the evidence as to its contents (and in particular the absence of reference to his having an entitlement to NZS despite paid employment) was accepted by the Authority.
[7] The Authority’s reasons for allowing the appeal are contained in the following paragraphs:
[19] We asked Ms Ji whether the Ministry had considered whether s 80AA(2)(b) imposed any obligation on it to provide better information to a class of people such as immigrants, however she was not aware of any situation where the Ministry had done so. In our view, this is the purpose of s 80AA(2)(b) of the Act. It imposes on the Ministry a duty to provide people of a certain kind or description with more extensive, targeted information and/or services than it generally provides.
[20] The High Court decision in I A M can be distinguished from the case before us as the appellant in I A M had received various benefits for some 12 years before reaching the age of entitlement for NZS and there is no suggestion that he was unfamiliar with the social welfare system. The issue the High Court considered in that case was the extent of the Ministry's obligation to advise persons generally of their entitlement; the Court was not addressing the provision in s 80AA(3) of the Act.
[21] We consider that, at the time the appellant reached the age of 65, the information generally provided by the Ministry did not adequately explain the criteria for NZS entitlement to people who emigrated to New Zealand from countries which did not have similar provisions for social welfare. The question is whether the failure to do so constitutes an error as defined by s 80AA(3) of the Act.
[22] Providing information only through the IRD, which did not state that people in paid employment were eligible for NZS, and failing to make the universal application of NZS clear to immigrants who had not engaged with the social welfare system was an omission to provide the information
3 The evidence now establishes that it was sent approximately seven weeks prior to his birthday.
4 The evidence now establishes that the letter, although on IRD letterhead was signed jointly by the manager of IRD and the National Manager, Senior Services of the Ministry of Social Development.
necessary for an application for NZS by a person in the appellant's situation. We are satisfied that this omission by the Ministry meets the definition of an erroneous action under s 80AA(3)(b) and that, as a result of the error by the Ministry, the appellant failed to apply for NZS when he turned 65.
[8]I note the following in respect of this analysis:
(a)Paragraph [22] confirms the Authority’s acceptance of the respondent’s evidence about the content of the IRD letter.
(b)The Authority does not identify that, although the letter was on IRD letterhead, it was co-signed by both the Manager of IRD and the National Manager, Senior Services of the Ministry of Social Development.5
(c)Although the respondent had advanced his case on the basis that he was a “particular applicant” who could not reasonably have been expected to apply at an earlier time because of erroneous Departmental action or inaction (s 80AA(2)(a) of the Act), paragraph [19] of the decision suggests an analysis based on s 80AA(2)(b). This section relates to applicants of a “kind or description who could not reasonably have been expected to apply earlier because of erroneous action or inaction”.
(d)The summary of reasons provided in paragraph [22] of the decision does not identify whether the decision proceeds on the basis of the respondent’s status as a “particular applicant” or as an applicant of a “kind or description”.
Case stated appeal
[9] The Chief Executive appealed from this decision by way of case stated under Part 21 of the High Court Rules 2016. The case stated is that of the Chairperson of the Authority.
5 Its omission in this respect had its evident origins in the submission made by the Chief Executive’s agent and recorded at [12] of the decision.
[10] Paragraph [3] of the case stated records the facts of the case as determined by the Authority to be:
(a)The respondent received a letter from the IRD sometime before he turned 65 which did not state that people in paid employment were eligible for NZS.
(b)The respondent turned 65 on 19 April 2012.
(c)The respondent submitted his superannuation application on 7 October 2015 and was granted superannuation from that date.
(d)The respondent states the reason he did not apply for superannuation on the date he turned 65 was that he was not aware that he was entitled to superannuation while in paid employment.
[11] The questions of law submitted for the opinion of the High Court were as follows:
(a)Did the Authority err in law in finding the Chief Executive has a duty to provide people of a certain kind or description with more extensive, targeted information and/or services than it generally provides?
(b)Did the Authority err in law in finding the Chief Executive has a duty to make it clear to immigrants who had not engaged with the social welfare system that NZS is universal and available to people in paid employment.
[12] It will be observed that, in the form filed, the case had as one of its essential factual premises that the respondent had not been told he was entitled to NZS despite paid employment. This reflected the Authority’s acceptance of the respondent’s evidence that the letter received by him on IRD letterhead had not alerted him to that fact – a conclusion which it reached without sighting the actual correspondence.
[13] Subsequently, however, the respondent has obtained a copy of the relevant letter from the IRD. It is now clear that his assumptions about its content were incorrect. Under the heading “Applying for New Zealand Superannuation (NZ Super)” the letter, among other things, stated:
As you are about to turn 65 you may be able to get NZ Super.
To get NZ Super you must be 65 years old or over and have lived in New Zealand for at least 10 years since you turned 20 – five of these years must be since you turned 50. There are some exceptions to these residency requirements and you will find details about them on our website can still receive NZ Super if you are working.
…
[14] The letter then went on to emphasise the importance of a prompt application because “if you apply after you turn 65 your payments will only start from the date you applied”. Details of how to apply were included.
[15] On 26 November 2019 (the day before the scheduled hearing of the appeal) I received a joint application by the Chief Executive and the respondent (endorsed by Mr Peart), seeking leave to adduce new evidence on the appeal. The proposed evidence included a copy of the letter dated 27 February 2012 explaining the respondent’s potential entitlements (subject to residency requirements).
[16] As a result, I convened a short notice telephone conference with the parties and Mr Peart. At the commencement of the conference I granted the application to adduce further evidence. I then raised with counsel and the respondent what I saw as the implications of such an order in terms of the case stated. I suggested that, in light of the new evidence, the Authority’s decision appeared to have proceeded on the basis of a factual finding which was demonstrably incorrect and that the error of fact was of such magnitude as to probably qualify as an error of law under the well recognised test in Edwards v Bairstow.6 I requested counsel and the respondent to reflect on how this might impact on the intended process and whether the appropriate course might
6 Edwards v Bairstow [1956] AC 14 (HL) at [36].
not be to reformulate the case stated, allow the appeal on the basis of this newly identified error of law and to remit the matter to the Authority for reconsideration.
[17] I subsequently received a joint memorandum (supported by Mr Peart), seeking a consent judgment in the following terms:
6.1The case stated is amended7 by removing the two questions of law stated to the Court and substituting the following question:
6.1.1Did the Authority err in law in finding that the letter sent to [the respondent] on 27 February 2012 did not state that people in paid employment were eligible for New Zealand Superannuation?
6.2The new question of law is answered “yes” on the basis of the new evidence admitted by direction of the Court on s6 November 2019.
6.3The Authority decision under appeal is quashed.
6.4The matter is remitted to the Authority for reconsideration in light of the judgment and newly admitted evidence.
6.5The hearing scheduled for 27 November is vacated and appearances excused.
6.6No order is made as to costs.
[18]I vacated the hearing accordingly.
Discussion
[19] I accept the proposed consent orders as appropriate. The Court cannot assume that, if the facts were correctly before the Authority, the same result would follow. Moreover, even if it were to do so, the Authority’s reasoning would necessarily be different. The existing decision is not, therefore, a satisfactory basis on which the High Court should give guidance on matters of principle – in particular as to the extent of any duty to communicate with those not ordinarily in contact with the Department or immigrant groups.
[20] I do not at this stage consider it appropriate to give detailed guidance on these underlying principles. As indicated, their relevance cannot be assumed in the context
7 High Court Rules 2016, r 21.12(2).
of a new decision premised on accurate factual findings. I say no more than to emphasise that:
(a)On the established authorities, before the Chief Executive is under any obligation to provide “active assistance” to any individual, his/her needs must be broadly communicated, typically by way of a claim.8 Moreover, the Chief Executive is under no obligation to correct a misapprehension of which the Ministry is unaware.9
(b)This background necessarily informs the proper ambit of ss 80AA(2)(a) and (b), to the extent that a failure to communicate at all with the respondent prior to his 65th birthday about his potential NZS entitlements would not, on the existing authorities, appear to constitute an “erroneous inaction”.
(c)The question for the Authority on remission will therefore be whether the letter received by the respondent on 27 February 2012 – a letter sent voluntarily rather than in fulfillment of any statutory duty – could qualify as an erroneous action or inaction on account of some identified deficiency in its terms, taking into account the fact that the principal criticism the respondent made of that letter (that it did not identify his entitlement to NZS despite continued paid employment) has now been identified as inaccurate.
Result
[21] I amend the case stated on appeal by deleting the two questions of law referred to in the case stated, dated 16 April 2019, and substituting the following new question:
(a) Did the Authority err in law in finding that the letter sent to the respondent on 27 February 2012 did not state that people in paid employment were eligible for NZS?
Taylor v Chief Executive of Department of Work and Income [2005] NZAR 371 (HC) at [16],
Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418 at [44].
9 I A M v Chief Executive of the Ministry of Social Development [2013] NZHC 762 at [26].
[22]I answer the new question in the affirmative.
[23]I quash the decision of the Authority dated 16 May 2018.
[24] I remit the matter to the Authority for reconsideration, in light of this judgment and the newly admitted evidence.
Timing of remitted hearing
[25] I am advised that, despite the terms of the Authority’s decision, the respondent has not yet received NZS for the period between his 65th birthday and the date of the subsequent application. It will be apparent from this judgment that the road to resolution of his claims has been prolonged and difficult. It is unfortunate that as a result of the factual error made by the Authority, the matter must again be remitted to it for reconsideration. In these circumstances this Court respectfully requests that priority be given to the remitted hearing.
Costs
[26]By agreement of the parties, no order as to costs is made.
Muir J
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