Cook v Chief Executive Ministry of Social Development

[2019] NZHC 1604

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-641

[2019] NZHC 1604

UNDER

Section 405 of the Social Security Act 1964

IN THE MATTER OF

An appeal by way of Case Stated from the determination of the Social Security Appeal Authority

BETWEEN

DESMOND WILLIAM COOK

Appellant

AND

THE CHIEF EXECUTIVE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:

30 May 2019

Appearances:

Appellant in person

K Hutchinson for the Respondent

Judgment:

12 July 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 12 July 2019 at 2 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COOK v THE CHIEF EXECUTIVE MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC 1604 [12 July 2019]

[1]    The appellant, Desmond Cook, seeks an extension of time in order to appeal a decision of the Social Security Appeal Authority (“the Authority”).1 Mr Cook acknowledges that his appeal was filed late but has explained that this was because he did not receive a  copy of the Authority’s  decision  (dated  13  March  2019) until  11 April 2019.

[2]    The respondent, the Chief Executive of the Ministry of Social Development (“MSD”), opposes the application for an extension of time. Although it does not dispute Mr Cook’s explanation, MSD points out that in determining whether to extend time this Court does not just look at the reason for the delay in filing but also at the extent of prejudice caused by the delay, the merits of the proposed appeal and whether the appeal raises any issue of public importance in order to ascertain whether extending time would meet the interests of justice.2

[3]    Mr Cook’s application is brought pursuant to s 406(4) of the Social Security Act 2018 which allows this Court to extend time for filing an appeal. As MSD has noted, Mr Cook does not have a direct right of appeal to the High Court but rather an appeal is limited to questions of law by way of the case stated process via the Authority.3 This means that, in the event Mr Cook’s application to extend time was successful, Mr Cook would then have to file both an appeal and a case stated with the Authority whereupon the Authority would then have to decide whether to state a case for the determination of the High Court.

The case for Mr Cook

[4]    Mr Cook’s submissions in support of the extension can be summarised as follows:

(a)The only reason he was late filing the appeal was, as noted, because he did not receive it from the appellant until 11 April 2019.

1      Re Cook [2019] NZSSAA 14.

2      My Noodle Limited v Queensland Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 (CA) at [19]. See also Havanco Ltd v Stewart (2005) 17 PRNZ 622 at [5].

3      Social Security Act 2018, s 405.

(b)With regard to the merits of his case Mr Cook submitted that neither MSD, nor the Authority, fully considered the evidence that he had presented with regard to his significant health issues and his resultant need,  confirmed  by   his   general   practitioner   Dr   Jayavant   on  14 March 2012, to eat a healthy diet.

[5]    I also note that in his submissions to the Authority Mr Cook had sought to argue a special benefit to which he had received up until 2012 should also be reinstated because of his “special and unusual” circumstances.

The Authority’s decision

[6]    The Authority’s decision commenced by concluding that it had no jurisdiction to consider Mr Cook’s entitlement to a special benefit as that issue had previously been determined.4 The Authority then turned to whether Mr Cook was entitled to temporary additional support, and accepted the argument presented by MSD that Mr Cook was not so entitled. In particular, the Authority concluded:5

While we accept that the appellant is a person who has high medical needs and living costs, we are satisfied he is receiving the maximum possible entitlement under the Disability Allowance and that, at the date of his application, he was not entitled to Temporary Additional Support because he had no deficiency of income when the appropriate formula was applied to his chargeable income and allowable costs.

Discussion

[7]    At the outset, I note that there is no suggestion of any prejudice to MSD if time for Mr Cook’s appeal is extended, nor is there any suggestion that the appeal raises any issue of public importance. As a result, the decisive consideration in this case is the merits of Mr Cook’s proposed appeal.

[8]    Unfortunately for Mr Cook, after reviewing all of the documents that have been provided, including the documents filed by Mr Cook and the report provided by MSD to the Authority, together with the relevant legislation and submissions, I can identify no question of law upon which Mr Cook’s appeal could possibly proceed.

4      Re Cook, above n 1, at [3].

5 At [7].

[9]    First, it is clear that the Authority was correct in not allowing Mr Cook to attempt to relitigate his entitlement to a special benefit. As the Authority recorded, this had previously been the subject  of  an  appeal  to  the  High  Court  in  2015.6 Mr Cook’s appeal was successful in part and the Authority’s decision with regard to the cancellation of the special benefit was remitted back on one issue for further consideration, namely Mr Cook’s dietary requirements. The Authority undertook a reconsideration but confirmed its earlier decision.7 Mr Cook sought to appeal again but the Authority declined to state a case.8 Mr Cook’s attempt to appeal directly to this Court was also unsuccessful.9 I am therefore satisfied that any issues arising from the cancellation of Mr Cook’s special benefit have now been conclusively determined and cannot be raised again in the present appeal.

[10]   In any event, it is  clear  that  the  central  issue  before  the  Authority  was Mr Cook’s entitlement to temporary additional support. On this issue, it is likewise clear that Mr Cook was not entitled to temporary additional support and no arguable issue of law arises with the Authority’s decision to uphold MSD’s decision. In particular, whether someone is eligible for temporary additional support is a matter strictly prescribed (restricted) by the legislation then applying, namely s 61G of the Social Security Act 1964 and the Social Security (Temporary Additional Support) Regulations 2005. In particular, temporary additional support was only payable if an “applicant’s standard costs exceed his or her disposable income”,10 and in particular there is a shortfall more than $1. In Mr Cook’s case, after deducting allowable costs11 of $109.85 from Mr Cook’s chargeable income12 of $332.37 (made up of his benefit and disability allowance) he was left with a surplus of $34.11. Even after allowing a further adjustment of $1.10 per week for additional power costs to be taken into account, Mr Cook continued to have a surplus of $33.01 and therefore remained ineligible to receive temporary additional support.

6      Cook v Chief Executive of the Ministry of Social Development [2015] NZHC 850.

7      Re Cook [2015] NZSSAA 78.

8      Re Cook [2016] NZSSAA 77.

9      Cook v Chief Executive of the Ministry of Social Development [2016] NZHC 1892.

10     Social Security (Temporary Additional Support) Regulations 2005, r 10(2).

11     See Social Security (Temporary Additional Support) Regulations Schedule 2.

12     See Social Security (Temporary Additional Support) Regulations Schedule 1.

[11]   As a result, and notwithstanding the undisputed serious and complex health issues Mr Cook faces, and the consequential need for him to eat in a healthy manner (as confirmed by Dr Jayavant’s 2012 letter), the relevant legislation simply did not permit MSD to provide temporary additional support to Mr Cook. In those circumstances Mr Cook’s appeal has absolutely no prospect of success and there is therefore no basis or reason for extending the time for filing his appeal.

Decision

[12]   The application to extend time for Mr Cook’s appeal is dismissed. Mr Cook is therefore not able to appeal the decision of the Authority dated 13 March 2019.

[13]Costs are to lie where they fall.

Powell J