EDM v Ministry of Social Development

[2024] NZHC 3149

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-511

[2024] NZHC 3149

BETWEEN

EDM

Applicant

AND

MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:

12 March 2024

Subsequent submissions by respondent 27 March & 16 August 2024
Subsequent submissions by applicant 31 May & 16 August 2024

Appearances:

Applicant, self-represented (via VMR audio)

A J Wicks, K K C Efondo for the Respondent (via VMR)

Judgment:

29 October 2024

JUDGMENT OF HARLAND J

Introduction

[1]        This judgment determines an application by EDM for leave to appeal a decision of the Social Security Appeal Authority (Appeal Authority) dated 30 March 2023. Leave is required because EDM filed her notice of appeal out of time.

[2]        The respondent, although initially opposing the application for leave to appeal out of time, no longer does so.

[3]        I have decided to grant EDM's application for leave to appeal out of time. In reaching this conclusion, there would normally be no need for any reasons to be given for that outcome. However, in this case, a further explanation is required, which I now outline.

EDM v MINISTRY OF SOCIAL DEVELOPMENT [2024] NZHC 3149 [29 October 2024]

Background

[4]        EDM's proposed appeal concerns the decision of the Appeal Authority to uphold the Ministry of Social Development’s decision of 8 July 2019 to decline her application for home help domestic emergency support for the period 1 August to 10 November 2019.

[5]        Most of the background listed below is taken from the Appeal Authority’s final decision dated 4 February 2022 which is the subject of the proposed appeal to the High Court.

[6]        The need for the application was precipitated by the premature birth of EDM's twins in July 2019, resulting in them suffering from various health conditions and EDM, at the time, receiving sole parent support with various supplementary payments. To care for the twins, EDM required some assistance and she was provided with domestic emergency support (DES) (referred to as home help), for the period outlined above. This was represented by a payment to her of a sum of money for a specified number of hours of home help per week. EDM was granted DES for three consecutive periods of three months, providing her with 45 hours per week of home help. When she applied for financial provision for a fourth period, the Ministry declined her application. But it continued to provide DES for various periods while alternative support was being explored.

[7]        By 8 July 2019, the Ministry decided that DES would only continue until 1 August 2019 and would be replaced with home help domestic support, providing financial support for 15 hours of home help per week. EDM sought to review the decision to stop the DES payment, which was first reviewed internally by the Ministry and then by a Benefits Review Committee who upheld that decision. EDM then appealed to the Appeal Authority which dismissed her appeal.

[8]        As I have outlined, because the appeal to the High Court was filed out of time, leave to appeal is required. This application came before me on 12 March 2024 but was adjourned part-heard by me because of an absence of certain information about matters that were relevant to it. The additional material required was to be provided by both the applicant EDM and the respondent. My minute of 13 March 2024 records the material I considered was required and provided a timetable for that material to be

provided. Essentially, both were to file the further information listed in my minute by 19 March 2024.

[9]        The respondent filed a memorandum on 18 March 2024 requesting an extension of time to provide the material sought but filed a further memorandum in the timeframe further allowed. The respondent’s further memorandum was dated 27 March 2024.

[10]      EDM indicated her wish to respond to the respondent’s memorandum. In my earlier minute, I had indicated I would consider the question of reply once the respondent had filed the material directed.

[11]      I was satisfied it was appropriate to allow EDM further time to respond to the respondent’s memorandum and I directed that she should file and serve any response by 5.00 pm on 31 May 2024. EDM filed her memorandum two weeks late, on 14 June 2024.

[12]      I had indicated in my minute of 15 May 2024 that I would deal with the matter on the papers. In my minute of 26 June 2024, I recorded that the hearing was concluded and my decision in respect of the application reserved.

[13]      During my consideration of the matter, it became apparent that there may be an issue about whether the parties had used the appropriate test to determine whether leave should be granted.

[14]      I issued a minute dated 29 July 2024 asking the parties to address that issue. The issue I was concerned about related to the matters that could be considered by the Court on an application under s 406(4) of the Social Security Act 2018 (the Act) and specifically whether an assessment of the merits of the proposed appeal was required. As I outlined in my minute:

[2]        This argument relies on whether r 20.4 of the High Court Rules 2016 (HCR) applies, a position accepted by Powell J in Cook v Chief Executive, Ministry of Social Development. Cook appears to be the only case where the inter-relationship between s 406(4) of the Act and r 20.4 of the HCR has been substantively considered. But the decision by Powell J, that r 20.4 also applies, appears to have simply accepted the test suggested by Crown counsel without further analysing the scheme of ss 405 and 406 of the Act, specifically with reference to the Social Security Regulations 2018.

[3]        The process to bring an appeal by way of case stated is set out in ss 405 and 406 of the Act. An appellant must begin an appeal within 10 working days after the date of the determination or a further period that a High Court Judge, under subs (4), has allowed. After the appeal has begun, the case stated must be lodged and timeframes are outlined for this to occur, with the ability for a further extended period to be permitted in certain circumstances.

(footnotes omitted)

[15]      I then outlined the provisions in the Social Security Regulations 2018 concerning the procedure for appeals to the High Court by way of case stated. At para [7]-[10] I noted the following:

[7]        Both parties have approached the dispute with the view that the approach taken to s 406(4) in Cook is the correct way of dealing with this application for leave to begin an appeal out of time. This means that, should I grant [EDM's] application, she would then need to file an appeal and case stated with the Authority, whereupon the Authority would then state a case for the determination of the High Court.

[8]        In this case, the Ministry “does not claim any prejudice if time for [EDM's] appeal is extended, nor does it challenge [EDM's] reason for the delay in filing her appeal”. That suggests the test under s 406(4) is satisfied. Regulation 260 suggests that while the High Court Rules should be taken into account, that should only be so to the extent that they are not inconsistent with the Act. A strict application of r 20.4 and the applicable case law may apply a more stringent test than s 406(4) of the Act appears to contemplate.

[9]        It is arguable that the approach taken in Cook may lead to over- consideration of the matter when all that is being applied for here is the Court’s permission to extend the period allowed for the appellant to begin their case. An over-analysis of the merits of the appeal could be seen to defeat the purpose of settling the case stated. Furthermore, had the appeal been in time, all that is required under s 405 of the Act is that there be a question of law to determine stated by the Authority. Adopting the test used in Cook imposes a more onerous test on applicants who appeal out of time, importing considerations of public good and merit, before the Authority has had the chance to consider and settle the case stated.

[10]      The statutory test under s 406(4) is unique in the language it uses. The phrase “good and sufficient reason for the delay” appears to have no usage outside of social welfare law. This may suggest that the words should be taken at face value. A strict application of r 20.4 and the applicable case law may apply a more stringent test than s 406(4) of the Act appears to contemplate.

[16]      I directed that further submissions on the points I had raised should be provided before issuing my judgment and directed that there be a sequential filing and serving of submissions with the respondent to commence that process. The final submissions were due to be filed and served by 5.00 pm on 30 August 2024.

[17]      Both EDM and counsel for the respondent filed submissions as directed. Counsel for the respondent notes their preliminary view that the criteria in s 406(4)(a)-(c) are not determinative of a leave application as there is a residual discretion in s 406(4), arising from the opening words of the section, which states that the Judge “may” allow further time if the criteria in subs (a)-(c) are satisfied. Counsel for the respondent submitted that this residual discretion could be applied to take into account matters beyond those in subss (a)-(c), but, taking into account the particular circumstances of this case, counsel indicated that the respondent no longer opposed the appellant’s application for leave to appeal out of time.

Result

[18]      I grant leave for EDM to appeal the decision of the Appeal Authority dated 4 February 2022 out of time.

[19]      The next step, as required in regs 257–260 of the Social Security Regulations, is for EDM to lodge her appeal and case stated with the Secretary of the Authority.1 EDM has ten working days to begin her appeal in the manner proscribed by the Act and Social Security Regulations.

[20]There were two remaining issues, both of which have been resolved as follows:

(a)  payment of disbursements for incidentals has been agreed between the parties and therefore does not require further consideration by the Court; and

(b)  the applicant's name has been anonymised in this judgment in accordance with the direction made by the Social Security Appeal Authority.

Harland J

Solicitors:

Crown Law, Wellington.

Copy to:
EDM, Applicant.

1      Social Security Regulations 2018, regs 257–258.