Chief Executive of the Ministry of Social Development v Port

[2016] NZHC 1314

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV 2016-485-51

[2016] NZHC 1314

IN THE MATTER

of an appeal by way of case stated from the determination of the Social Security Appeal Authority at Wellington under

s 12Q of the Social Security Act 1964

BETWEEN

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Appellant

AND

DEBBIE PORT

Respondent

Hearing:	9 June 2016
Counsel:	I Clarke and A Allan for Appellant S Fraser for Respondent
Judgment:	16 June 2016

JUDGMENT OF SIMON FRANCE J

Introduction

[1]    The Chief Executive appeals by way of case stated against a decision of the Social Security Appeal Authority which directed the Chief Executive to contribute to payments Ms Port was incurring in relation to an item of gym equipment.1 The payments have been directed to be included as part of an assessment of Ms Port’s disability costs. The sum is $26.84 a week, being a part payment of the obligation Ms Port has incurred.

1      In Re Port [2015] NZSSAA 47.

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v PORT [2016] NZHC 1314 [16 June 2016]

[2]    Whilst three questions have been stated, I am satisfied that an issue wrapped up in the first stated question is determinative and so immediately address that.

[3]    Ms Port purchased an item of gym equipment having seen it advertised. The purchase price was $3,000, which Ms Port arranged to pay in 72 instalments. She applied to have this expense included within her disability allowance. The Chief Executive declined but Ms Port successfully appealed to the Social Security Appeal Authority.

[4]    Disability payments are provided for in s 69C of the Social Security Act 1964. There are various conditions that must be met before the Chief Executive’s discretion is engaged, but relevant here is s 69C(2A) which provides:

(2A)A disability allowance is not payable to or on account of any person except to the extent that—

(a)the person has additional expenses of an ongoing kind arising from the person's disability (subject to section 68A); and

(b)the assistance towards those expenses available under this Act or any other enactment is insufficient to meet them.

[5]    The Chief Executive submits, and I consider correctly, that the expense incurred by Ms Port is not an expense of an ongoing kind. It is the one-off acquisition of an item, albeit that Ms Port has arranged to make payment by instalments. The intent of the section is to prescribe for repeating costs that occur because of the disability. It cannot be said that the need to purchase a stair climber or other such piece of equipment is ongoing, or repeating.

[6]    The centrality of “ongoing” is further emphasised by s 69C(2) which identifies the necessary characteristics of a disability, which include that there be a need for “ongoing support” or “ongoing supervision”.

[7]    As is contemplated by the Act, the Minister has issued directions to the Chief Executive concerning how the provision is to be approached.2 These repeat the emphasis on an ongoing expense. Ms Clarke, on behalf of the Chief Executive, draws

2      Social Security Act 1964, s 5.

further support from the legislative process. Although I consider little can be read into it, I record that some submissions to the Select Committee queried this restriction of the disability allowance to ongoing expenses, noting that irregular or one-off costs can be equally legitimate. Departmental advice to the Committee was that the limitation was intended, and that one-off expenses could be addressed under other programmes. The draft bill remained unchanged.

[8]    It is important to note that the disability allowance can cover goods and consumables; it is just that the  need  for  the  particular  good  must  be recurring. Ms Clarke cites batteries for hearing aids as a recurring expense that is covered.

[9]    Mr Fraser submitted that whether something was ongoing was a question of fact and degree, and did not raise a point of law. He cited a gym membership, which everyone accepts is a permissible expense, but which can be paid for in a lump sum or by instalments. It is a fair point, but one which ultimately counts against his position. What it emphasises is that the true nature of the expense must be considered, rather than how it manifests. Gym membership is an ongoing recurring event; purchasing a significant piece of gym equipment for home use (which is the “expense” for the purposes of the section) is plainly a one-off event.

[10]   Mr Fraser’s submission highlights that where lines are drawn can lead to somewhat arbitrary results. For example, it would seem the rental costs of hiring this equipment could be provided for out of a disability allowance, but not its purchase. It is to be noted, however, that usually there will be a different programme or grant that could potentially cover the matter if the merits permit.

[11]   I am satisfied there is a question of law, which is whether a one-off expense can be converted into an expense of an ongoing kind by arranging for payment to be made in instalments. The answer is no.

[12]   The other questions concerned whether the Authority correctly approached the issue of causation, and whether the quantum of the payment was permissible. Concerning causation I would not have allowed the appeal. Although it was a

surprising conclusion to find that the expense arose from the disability, it was not a conclusion that could not be reached. Accordingly no point of law arises.

[13]   The third issue concerns the quantum of the contribution. It is plain the Authority erred. The amount of contribution, when added to the sums already being received, exceeds the maximum that Ms Port can receive by way of disability allowance. An adjustment would have been required. The Chief Executive notes that the extra could have been assessed under the Temporary Additional Support Programme but this was not considered by the Authority. If it had been necessary I would have reduced the quantum to the maximum available, namely $15.48, and remitted the adjustment back for consideration of the applicability of the Temporary Additional Support Programme.

Conclusion

[14]   The appeal must be allowed as the expense is not one that comes within the disability allowance. It is not of an ongoing kind. I cancel the directions of the Social Security Appeal Authority that the Chief Executive must contribute to Ms Port’s payments.

[15]   The question of whether it was an expense of an ongoing kind, and the issue of how much could be paid under Ms Port’s allowance, were not raised orally by the appellant in front of the Authority. In those circumstances I consider costs should lie where they fall.

[16]   Ms Port sought name suppression. It would be an exercise of the inherent jurisdiction to grant it. While I appreciate that publicity is distressing, the Appeal Authority decision was covered in the media without name suppression. It would not be appropriate at this stage to now suppress the further appeal. Anonymisation of the respondent’s name would be futile given the detail that is already in the public domain, and would cause undue complexity as regards past publication. The application is declined.

Simon France J