Crequer v Chief Executive of the Ministry of Social Development
[2016] NZHC 943
•11 May 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-485-000156 [2016] NZHC 943
BETWEEN DAVID CREQUER
Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 20 April 2016 Appearances:
Appellant in person
N E Bailey and O Upperton for RespondentJudgment:
11 May 2016
JUDGMENT OF DUNNINGHAM J
Introduction
[1] In March 2013, Mr Crequer was made redundant. He applied for the domestic purposes benefit (DPB), as he had a dependent child in his care. Shortly afterwards he made a separate application for a sickness benefit because he was hospitalised and underwent an operation. However, the Ministry of Social Development (the Ministry) proceeded to process his application for DPB, and he has been in receipt of that benefit since 9 May 2013.1
[2] Mr Crequer was unhappy with that decision. He disputed the commencement date calculated for the payment of DPB (which took account of payments he had received at the end of his employment). He also claimed that only his application for
a sickness benefit should have been processed, because he was “ineligible” for the
1 Although WINZ have since calculated that his entitlement did not arise until 3 June 2017.
CREQUER v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 943 [11 May 2016]
DPB, and he believed that his entitlement to the sickness benefit would have commenced at an earlier date.
[3] Mr Crequer sought reviews of both the decision to pay him the DPB and not the sickness benefit, and the determination of the commencement date of his benefit. The disputed matters were the subject of an internal review and then referred to the Benefits Review Committee. He was not satisfied with the outcome of either review so appealed to the Social Security Appeal Authority (the Authority).
[4] The Authority’s decision dated 20 May 2014 upheld the Chief Executive’s decision to grant the appellant the DPB rather than the sickness benefit, and rejected Mr Crequer’s submission that he should have been paid the sickness benefit from the date of his medical certificate. It is Mr Crequer’s appeal of that decision which has lead to this hearing.
Appeal by way of case stated
[5] The present appeal arises by way of case stated under s 12Q of the
Social Security Act 1964 (the Act).
[6] Under s 12Q(1) of the Act, any party dissatisfied with a determination of the Authority, as being erroneous in point of law, may appeal to the High Court by way of case stated for the opinion of the Court on a question of law only. An appeal on a question of law alone is not a general right of appeal, but a more limited right.2
[7] Under r 21.14 of the High Court Rules, after hearing and determining the questions of law, the Court must do one or more of the following things:
(a) in the case of an appeal, reverse, confirm, or amend the decision in respect of which the case was stated;
2 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [50].
(b)in the case of an appeal, remit the matter to the tribunal for reconsideration and decision in accordance with the opinion of the court on the question of law or fact (or both);
(c) in every other case remit the matter to the tribunal with the opinion of the court;
(d) in any case, make any other order that is just.
[8] As the Supreme Court explained in Bryson v Three Foot Six Ltd,3 appealable questions of law include where the lower Court has misinterpreted legislative provisions, but it does not arise:4
… where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
[9] The two questions of law stated for the opinion of the Court are:
(a) Did the Authority err in finding that it was open to the Chief Executive to grant the appellant DPB rather than sickness benefit?
(b)Did the Authority err in law in its interpretation or application of s 80BA of the Social Security Act 1964, in finding that the correct commencement date of the appellant’s DPB was 3 June 2013?
[10] The respondent’s position is that the answer to the first question is no:
(a) The Authority was correct to find that it was open to the
Chief Executive to grant the appellant DPB rather than sickness benefit.
3 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
4 At [25].
(b)Further, granting the appellant DBP rather than the sickness benefit did not disadvantage him.
[11] The respondent’s position is that the answer to the second question is also no:
(a) The Authority did not err in finding the correct commencement date
of the appellant’s DPB was 3 June 2013;
(b)While the respondent acknowledges that the commencement date of the appellant’s benefit has been miscalculated several times, the appellant has not been prejudiced by the miscalculations.
Preliminary issue – framing of the questions of law
[12] Mr Crequer submitted a draft case stated to the Authority after that body issued its decision on 20 May 2014. He framed the issues as five questions of law, with multiple sub-questions. However, the chair of the Authority settled the case, identifying the two questions of law set out in [9] above and sent it to the High Court.
[13] Mr Crequer disagreed with the amendments made to his draft by the Chair in the course of settling the case but, in a judgment dealing with Mr Crequer’s objections to the case stated, Gendall J dismissed those objections.5 The Judge
concluded that the case, as settled, “perfectly captures the issues in dispute”.6
[14] Mr Crequer then filed an appeal against that decision. Although his appeal was dealt with by declining an application for fee waiver, Wild J held that Mr Crequer’s challenge to the way the case stated should be formulated did not raise an issue of public importance. That application, too, was dismissed.7 An application
for leave to appeal that decision to the Supreme Court was also dismissed.8
5 Crequer v Chief Executive of the Ministry of Social Development [2015] NZHC 1602; [2015] NZAR 1395.
6 At [41].
7 Crequer v Chief Executive of the Ministry of Social Development [2015] NZCA 365.
8 Crequer v Chief Executive of the Ministry of Social Development [2015] NZSC 176.
[15] However, in the present hearing, Mr Crequer again sought to have the questions of law amended, relying on the observation by the Supreme Court that “the High Court has the power to amend the case at the hearing of the substantive appeal should the need arise”,9 and referring to earlier statements by the respondent saying that he would not oppose any reasonable amendments.
[16] The amended questions of law which Mr Crequer proposed should be addressed at this hearing are:
(a) Is it open to the Authority to dismiss an appeal, after it is (admitted
(wrongly) and then) proven to be a successful appeal?
(b)Is it open to the Authority to find that it is lawful for the Ministry to consider (and grant) an application for a benefit which the applicant is not entitled to (because circumstances have resulted in the application being invalid before the application has been fully considered and granted)?
(c) Is it open to the Authority to find that it is lawful to take an invalid, prior application into account when assessing an application for a sickness benefit – the application for sickness benefit having arisen in/for separate circumstances than the invalid prior application for DPB?
(d)Is it open to the Authority to assess an application for an (sic) SB with a “date of event” prior to the date of the medical event that gave rise to the application?
[17] The first question arises because Mr Crequer considers he had some success before the Authority, in that the date calculated by the Chief Executive for commencement of his benefit was revised. However, that is to overlook that virtually all Mr Crequer’s submissions as to calculation of the correct
commencement date for his benefit were rejected by the Authority. The only
9 Crequer v Chief Executive of the Ministry of Social Development, above n 8, at [59(b)].
alteration to date proposed by the Chief Executive was that the Authority agreed with Mr Crequer that the Act, properly applied, meant the benefit commenced “on the date the stand down ends”, being 3 June 2013, and not on the following day,
4 June 2013.10 Mr Crequer’s appeal could not be characterised as “successful”, and
no practical purpose would be achieved by adding the first question to the case stated.
[18] In my view, the balance of the questions are all adequately addressed in the questions of law in the current case stated. Furthermore, in the form proposed by Mr Crequer, the questions contain assumptions as to the relevant facts which are not agreed, and which would make it difficult to isolate the questions of law.
[19] I am satisfied that Mr Crequer’s proposed amendments to the questions of law for the case stated do not better define the legal issues in dispute than the current questions, and I decline Mr Crequer’s application to amend them.
Background
[20] Mr Crequer was made redundant from his employment on 28 March 2013. He received a final pay which consisted of holiday pay (both accrued and earned), one week’s salary and four weeks’ pay in lieu of notice.
[21] On 10 April 2013 he applied for the DPB as he had a dependent child aged
17 years in his care at the time. In his application form he noted that he had been made redundant and he was also unable to work because of a hernia operation he had on 4 April 2013.
[22] On 12 April 2013 he told the Ministry he would prefer to be granted the sickness benefit rather than the DPB. He provided a medical certificate on
12 April 2013 which indicated he should do no lifting or physical work for two
weeks and light work only for six weeks.
10 And for completeness, s 80BA(4) of the Act was subsequently amended by the Social Security (Commencement of Benefits) Amendment Act 2015, so that benefits commence on the day after the stand down period ends.
[23] On 18 April 2013, Mr Crequer applied for the sickness benefit as he was “concerned that his commencement date is too far out”. He was advised that he would be subject to a possible two week stand down and, on top of that, the holiday pay and the pay in lieu of notice that he had received would affect the commencement date of his benefit. He was told that the calculation for the commencement date of the DPB and sickness benefit would be the same.
[24] The Ministry then declined his application for a sickness benefit and granted his application for the DPB. It calculated that the DPB would commence on
9 May 2013.
[25] On 30 April, Mr Crequer sought review of the Ministry’s decision to grant him DPB commencing from 9 May 2013 and to decline his application for the sickness benefit. On 9 May 2013 he began receiving DPB, although an internal review subsequently determined that his benefit should have commenced on
18 June 2013.11
[26] When the matter went to the Benefits Review Committee, it found the DPB should have commenced on 11 June 2013 as the appellant was subject to a one week stand down, rather than a two week stand down. The Committee also found that the commencement date for the DPB and sickness benefit are calculated under the same legislative provisions and held that, in Mr Crequer’s circumstances, the commencement date for both benefits was 11 June 2013. The Committee also found that Mr Crequer qualified for either the DPB or a sickness benefit and it was “to the applicant’s advantage to be on a domestic purposes benefit due to a lower income abatement for employment of part-time workers gained”.
[27] Mr Crequer then appealed to the Authority. At the hearing the respondent’s
position was that 4 June 2013 was the correct commencement date, whichever benefit was paid.
11 The respondent has not sought to recover the payments he received between 9 May 2013 and
3 June 2013 on the basis that this debt was caused by the Ministry’s error and s 86(9A) of the
Act applies.
[28] On 20 June 2014 the Authority dismissed the appeal. However, it determined the correct commencement date for the appellant’s DPB was 3 June 2013.
[29] In respect of the question over whether DPB or sickness benefit should be paid, the Authority found it was open to the Ministry to pay Mr Crequer either benefit and, regardless of which benefit the appellant was granted, he would have received both at the same rate and from the same time.
[30] The Authority also found there were certain advantages to Mr Crequer in being granted DPB as opposed to sickness benefit. These were:
(a) Income for recipients of DPB is assessed annually compared with the sickness benefit which is assessed weekly. This would have given the appellant greater flexibility in re-entering the workforce and receiving income on a part-time basis than if he had been in receipt of a sickness benefit.
(b) The abatement rate in respect of DPB is more favourable.
(c) The appellant’s poor health would exempt him from the DPB work
test requirement under s 102A of the Act.
(d) The appellant’s medical certificate would have expired on
29 May 2013. If he were on a sickness benefit, he would have had to provide a new certificate or transfer to another benefit.
[31] The Authority was not persuaded that there were any advantages to the appellant in being granted a sickness benefit and found the respondent had not erred in granting the appellant the DPB.
[32] The Authority was, however, critical of the fact there had been four different calculations of the date for the commencement of the appellant’s benefit. It concluded that his stand down for either benefits ended on 3 June 2013 and this is when he should have been entitled to receive a benefit, whether the sickness benefit or the DPB.
[33] Mr Crequer was dissatisfied with that decision, and his appeal has led to the current appeal by way of case stated.
First question of law - Did the Authority err in finding that it was open to the Chief Executive to grant the appellant the domestic purposes benefit rather than the sickness benefit?
Mr Crequer’s position
[34] Mr Crequer argues that it was not open to the Chief Executive to grant him the DPB because there was, at no time, a valid application for DPB. He says that on
11 April 2013, his application for DPB was placed on hold pending supply of a letter from the bank stating his minimum mortgage payments and land rates, a letter from ACC about payments received for his son, and a medical certificate to exempt him from the full-time work test. He says when the application was subsequently approved on 18 April 2013 it was still incomplete, as the ACC issue was not clarified until 1 May 2013, and so it should not have been approved.
[35] Mr Crequer also argues that he was not eligible for the DPB because, at the time it was granted, he held a medical certificate saying he could not work and therefore he could not meet with the obligation in s 27B, which was to comply with the work test in s 102A(1) as a work-tested beneficiary.
[36] He considers it is irrelevant which benefit he, or the Ministry, “wished” should be granted, and it was irrelevant that there were certain “advantages” to him in granting him DPB. He also says it is irrelevant to the question of his eligibility for DPB that the medical certificate he had would have permitted an exemption from the work-related obligations under the DPB, as an exemption was not applied for, nor granted.
The Chief Executive’s position
[37] The Chief Executive, on the other hand, says it was open to him to grant the benefit that was most appropriate in the circumstances. The Act does not require the Chief Executive to grant a particular benefit sought by an applicant. Rather, as the High Court has acknowledged, the Chief Executive should be proactive in
ascertaining the applicant’s needs when he or she applies for a benefit, although there is also an obligation on an applicant to identify with sufficient clarity, what his or her need for a benefit is.12 This will enable the Chief Executive to consider the need, including the way it can best be met, and in undertaking that function, the Chief Executive is intended to have “the choice of tools” and “be pro-active in seeing to welfare”.13
[38] In the present case, in considering how Mr Crequer’s needs could best be met, the Chief Executive through his delegates, assessed both the application for the DPB and for the sickness benefit. Both benefits were paid at the same rate (the rate was at that stage $295.37 net per week) and, because both benefits are subject to s 80BA and a stand down period under schedule 28, both would have commenced on the same date, 3 June 2013.
[39] However, it was considered that granting the sickness benefit would be less advantageous to the appellant than granting the DPB, for the reasons set out at [30] above.
[40] The Chief Executive also did not consider that the medical certificate precluded Mr Crequer from qualifying for DPB because, although he did not apply for an exemption from his work-testing obligations, he met the exemption criteria and, by implication, the medical condition of Mr Crequer at the time the DPB was
granted did not preclude him from receiving DPB.14
[41] In summary, therefore, the Chief Executive considers that he granted the benefit that best met Mr Crequer’s needs, and which was the most favourable to him. That was open to the Chief Executive given the information he had on Mr Crequer’s circumstances and there was no error on the part of the Authority in upholding his
decision in this respect.
12 Taylor v Chief Executive of the Department of Work and Income [2005] NZAR 371 (HC) at [15];
Chief Executive of the Department of Work and Income v Scoble [2001] NZAR 1011 (HC).
13 Hall v Director-General of Social Welfare [1997] NZFLR 902 (HC) at 912, cited in Taylor, above n 12, at [14].
14 Social Security (Exemptions Under section 105) Regulations 1998, reg 6(2)(e) (historic version as at 18 April 2013).
Discussion
[42] The key plank of Mr Crequer’s argument is that he was “ineligible” for DPB because he held a medical certificate at the time he was assessed for DPB and it was not open to the Chief Executive to grant a benefit for which he was not eligible.
[43] I do not accept that reasoning. The eligibility requirements for the DPB are set out at s 27B(2). That section provides:
(2) Subject to the provisions of this Act, an applicant shall be entitled to receive a domestic purposes benefit if the chief executive is satisfied that–
(aa) the applicant meets the residential requirements in s 74AA;
and
(a) the applicant is aged 19 years or over; and
(b) the applicant is caring for a dependent child or children; and
(c) the applicant is not living together with his or her spouse or partner or with the other parent of the child, as the case may be.
[44] There is no suggestion that Mr Crequer did not meet those four requirements, and so he was entitled to receive the DPB. The ability to work is not a statutory requirement which affects the entitlement to receive the DPB.
[45] However, if a person meets the entitlement criteria and receives the DPB, they are then, under s 27B(2A), required to comply with the work test if that person is a “work-tested domestic purposes beneficiary”.15 That is an obligation which arises as a consequence of the applicant being eligible for DPB, not as a pre-requisite for eligibility. Furthermore, the Act provides for exemptions from the work test obligations, including where the beneficiary met the criteria for a sickness benefit, as was the case here.
[46] In the present case, I accept that no exemption was granted (whether formally applied for or not).16 However, none of those factors affect Mr Crequer’s eligibility
15 Primarily because his dependent child was 17 years old.
16 Exemptions can be granted, under s 105(7) whether or not a formal application is made by the beneficiary.
for a DPB. He was entitled to, and did receive the DPB. The fact that the Chief Executive did not require Mr Crequer to comply with the work test (on the obvious basis that he already had information which would satisfy the grant of an exemption), does not alter that fact.
[47] Given I have found there was no practical impediment to granting Mr Crequer the DPB, and he qualified for both that and the sickness benefit, Mr Crequer’s main argument falls away. However, Mr Crequer still asserts that the fact there was an “advantage” to him in receiving the DPB was irrelevant to the Chief Executive’s consideration. Again I do not agree.
[48] The role of the Chief Executive in performing his functions and powers under the Act has been considered in previous decisions. They have emphasised that, under s 12, it is for the Chief Executive and those acting with his authority, to determine what benefits should be granted to a claimant.17 In doing that, there is a requirement for the Chief Executive, or his delegate, to ensure that the correct benefit or benefits are paid and in making that determination, to be “pro-active in seeing to welfare, and not defensive or bureaucratic”.18
[49] In the present case, for the reasons already discussed, I accept Mr Crequer was entitled to either benefit. The Chief Executive had to select one. Given the general obligation to be pro-active in identifying the applicant’s appropriate benefit entitlement, I accept that the Chief Executive’s conclusions as to which was the most advantageous benefit for the applicant, was a relevant consideration. I therefore consider the Chief Executive was entitled to take the advantages of granting the DPB to the appellant into account, and to grant the appellant that benefit rather than the sickness benefit.
[50] I do not accept Mr Crequer’s position which, in essence, says he must get what he applied for (and he says his only valid application was for the sickness benefit). To do so would conflict with express provisions in the Act, including the
ability under s 11D(4) to grant a benefit of another kind from that the applicant
17 Chief Executive of the Department of Work and Income v Scoble, above n 12, at [29].
18 Hall v Director-General Social Welfare, above n 13, at 912.
applied for. As was said in Scoble, it may that the applicant is a person “lacking the requisite skills to identify or specify the benefits to which they might be entitled” and the Chief Executive has a role in ensuring that such people should not be “further disadvantaged if their application is misnamed or failed to name the precise monetary benefits to which they are entitled under the Act”.19 In other words, the Chief Executive is necessarily acting within his powers if, where there is a choice of benefits to which the applicant might be eligible for, he selects that which is most advantageous to the applicant.
[51] In summary, the Authority did not err in finding it was open to the Chief Executive to grant the appellant the DPB rather than the sickness benefit. The appellant was entitled to either benefit and it was within the Chief Executive’s power to have regard to the relative advantages of the two types of benefit and to grant the benefit assessed as having the most advantages for the applicant in question.
Second question of law - Did the Authority err in law in its interpretation or application of s 80BA of the Social Security Act 1964 in finding that the correct commencement date of the appellant’s domestic purposes benefit was
3 June 2013?
Mr Crequer’s submissions
[52] From Mr Crequer’s perspective, this question is theoretical, because of his view that he was not entitled to DPB, but to the sickness benefit. I have already found that that belief was in error. The fact he held a medical certificate confirming he was temporarily unable to work did not affect his eligibility for DPB.
[53] However, in support of his argument that a different commencement date applied to the sickness benefit, Mr Crequer submits that:
(a) because the sickness benefit is not dependent on whether an applicant is working, the fact that the applicant has received some income for a temporary period (such as the payment for leave and in lieu of notice)
should not affect his eligibility for sickness benefit and the sickness
19 Chief Executive of the Department of Work and Income v Scoble, above n 12, at [30].
benefit should be paid from the date of incapacity with the normal stand down;
(b)given the date of his incapacity was 4 April 2013 then, with a one week stand down, the date of entitlement for the sickness benefit should be 11 April 2013;
(c) in response to the plain wording of s 80(2)(b) which says that both a domestic purposes benefit and a sickness benefit is subject to a stand down which starts the day after the date the person’s employment “ceased”, he says this can be overcome by viewing the sickness benefit as coming within s 80BA(3)(a) because it is a benefit that is unrelated to employment status, whereas subsection (2)(b) applies to work tested benefits;
(d)he considers it is consistent with the purpose of the Act to commence the entitlement to the sickness benefit at the point he became medically unfit to work, and not to allow the Ministry to “benefit from a windfall due to the timing of when I previously finished work”.
[54] The balance of Mr Crequer’s submissions on the calculation of the start date:
(a) criticise the Chief Executive for the numerous reassessments of the commencement date, which is advanced to support his argument that there was no justification for the Authority to have dismissed that aspect of his appeal;
(b)Mr Crequer also raises some concerns about how his final pay was broken down as between holiday pay, salary and payment in lieu of notice.
The Chief Executive’s submissions
[55] The Chief Executive submits that he correctly applied ss 80(2)(b) and 80BA of the Act to Mr Crequer’s circumstances and that was the case regardless of whether he received the DPB or the sickness benefit.
[56] Section 80(2) provides:
(2) A benefit is subject to a stand down, and commences on a date calculated in accordance with section 80BA, if—
(a) the benefit is a work-tested benefit or a youth payment or a young parent payment (other than a youth payment or a young parent payment granted to a person undertaking employment-related training or who is enrolled in a course of secondary instruction) and the applicant is not subject to a non-entitlement period; or
(b) the benefit is sole parent support, jobseeker support on the ground of sickness, injury, or disability, or a supported living payment.
[57] Section 80BA of the Act provides:
80BA Calculation of stand down
(1) This section applies to a benefit if section 80 requires the benefit to commence on a date calculated in accordance with this section.
(1A) A person who is entitled to a benefit to which this section applies may elect to have his or her average income calculated by reference to a period of 52 weeks instead of 26 weeks.
(2) Every benefit to which this section applies shall be subject to a stand down period calculated in accordance with Schedule 28.
(3) A stand down period under this section commences on the later of—
(a) the date the person became entitled to the benefit; or
(b) if the person’s employment terminated or the person is given notice of termination of employment before he or she applied for the benefit, the day after the date the person’s employment ceased.
(4) If a stand down period applies under this section, benefits commence as follows:
(a) benefits except those described in paragraph (b) commence on the later of—
(i) the day after the stand down period ends; or
(ii) the day on which the application for the benefit is received:
(b) a benefit commences on the day after the stand down period ends if the application for the benefit is received within 28 days after the date on which the person becomes entitled to the benefit, and the benefit is—
(i) sole parent support; or
(ii) a supported living payment; or
(iii) jobseeker support granted on the ground of sickness, injury, or disability; or
(iv) jobseeker support granted to a sole parent; or
(v) jobseeker support granted to a person who has recently lost the financial support of his or her spouse or partner by reason of death, the spouses or partners commencing to live apart, or the ending of a de facto relationship; or
(vi) a youth payment; or
(vii) a young parent payment.
…
[58] These provisions apply whether Mr Crequer was granted DPB or the sickness benefit. This is because:
(a) Section 80(2)(b) provides that both the DPB and sickness benefit are subject to a stand down period which commences on a date calculated in accordance with s 80BA.
(b)Section 80BA(2) provides that the stand down period is calculated in accordance with schedule 28 of the Act.
(c) Section 80BA(3) provides that the stand down commences on the later of the date a person became entitled to the benefit, or the date a person’s employment ceased.
[59] In Mr Crequer’s case the Chief Executive says the later date for the purpose of s 80BA(3) is the date his employment ceased. This is so whether the benefit claimed is the DPB or the sickness benefit, because of the provisions of s 80(2)(b).
[60] The term “ceased” is defined in s 3 of the Act when used in relation to employment ceasing. To calculate when the appellant’s employment ceased, that definition requires the following steps to be taken:
(a) the Chief Executive must take into account any payment in lieu of notice, holiday pay and payment in lieu of accumulated leave the applicant received on the termination of his employment;
(b)the Chief Executive must then ascertain the applicant’s normal daily wage before termination of his employment and divide the total of the payments received by the amount of his daily wage;
(c) this produces the number of days income covered by these payments
after the date on which the applicant’s employment terminated;
(d) the last day covered by these payments is the date the applicant’s
employment ceased.
[61] Because Mr Crequer’s employment terminated on 28 March 2013, the
Authority calculated the date his employment ceased as follows:
Amount of holiday pay, pay in lieu of notice and in lieu
of accumulated leave $8,128.75
Average daily earnings based on $961.54 per week $192.30
Divide $8,128.75 by $192.30 42 days
[62] The Authority observed that the 42 day period commences the day after Mr Crequer’s employment terminated.20 Saturdays and Sundays are excluded from the period covered. Thus Mr Crequer became entitled to receive a benefit on
28 May 2013. Based on his average weekly wage, a one week, rather than two week
stand down applied.21 The stand down ended on 3 June 2013, being the day that the one week stand down period ended. His benefit, whether the sickness benefit or the DPB, was payable from this date.
[63] Given the Authority correctly applied every aspect of the calculation to the appellant’s situation, the respondent submits it is appropriate to find that the Authority has interpreted and applied the relevant provisions of the Act to the appellant’s situation correctly, finding his benefit should have commenced on
3 June 2013.
Discussion
[64] Despite Mr Crequer’s arguments, I am satisfied that, on the plain wording of s 80(2)(b), the calculation of the commencement date for both the DPB and the sickness benefit is reached applying the same provisions. I do not accept that the sickness benefit can start on a different date by seeing it as coming within s 80BA(3)(b). What that overlooks is that s 80BA(3) applies to all benefits listed in s 80(2)(b) and requires the Chief Executive to calculate the commencement date of the stand down period on the later of either 80BA(3)(a) or 80BA(3)(b). It is clear that the calculation of the commencement date for the stand down period, and the stand down period itself, are the same for either benefit and Mr Crequer’s argument cannot be sustained.
[65] I also cannot ignore the plain wording of these sections to achieve what Mr Crequer considers is an outcome that is consistent with the purpose of the Act. In his submission the sickness benefit should run from when he became medically unfit for work and should not take into account any payments he received as a consequence of the earlier termination of his employment.
[66] However, one of the express purposes of the Act is:
To ensure that the financial support … [provided under the Act] … is
provided to people taking into account–
(i) that where appropriate they should use the resources available to them before seeking financial support under this Act;
[67] This purpose is met by deferring the payment of the relevant benefit until payments received from the applicant’s employer are exhausted, as the provisions of s 80(2)(b) and s 80BA(3) require. Those sections do not distinguish between the sickness benefit and the DPB, requiring applicants to rely on any payments received at the date they ceased employment before the stand down period applies and the benefit then becomes payable. In my view, having the same rules applying to both the DPB and the sickness benefit, is consistent with the purpose of the Act and there is no need to look behind the clear wording of the statutory provisions.
[68] In relation to the balance of Mr Crequer’s submissions on the calculation of the start date, I accept he has a genuine grievance about the numerous reassessments that were made of the commencement date. However, what is at issue in this case is whether the Authority correctly applied s 80AB to calculate the start date for his benefit. I am satisfied that the Authority has correctly applied the relevant statutory provisions to Mr Crequer’s circumstances and Mr Crequer has failed to identify any error in the Authority’s reasoning.
[69] In response to the concerns Mr Crequer raises about how his final pay was broken down as between holiday pay, salary and payment in lieu of notice, I simply observe that that is irrelevant to the calculation of when Mr Crequer’s employment was considered to have ceased, as it is the total of all such payments which is used for the calculation under s 80AB.
Decision
[70] For the above reasons I answer the questions in the case stated as follows: (1) No
(2) No
[71] As a consequence of my conclusions, which confirm the decision of the Authority, there is no need to consider amending the decision, nor to remit the matter back to the Authority.
[72] I reserve the issue of costs. If costs are sought by the respondent, a cost memorandum should be submitted within 15 working days of the date of this judgment, with any memorandum in response to be filed within a further 10 working days of receipt of that memorandum. Costs will be determined on the papers.
Solicitors:
Crown Law Office, Wellington
Copy to: Appellant
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