Foster v Chief Executive of the Ministry of Social Development

[2009] NZCA 602

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/2009
[2009] NZCA 602

BETWEENGRAHAM FOSTER

Applicant

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:2 December 2009

Court:Hammond, Arnold and Ellen France JJ

Counsel:Applicant in person

L M Fong for Respondent

Judgment:16 December 2009 at 3.30 pm 

JUDGMENT OF THE COURT

A            The application for special leave to appeal is declined.

B            No order as to costs.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]        In August 2007 Mr Foster, who is in receipt of social welfare benefits, applied to the Chief Executive of the Ministry of Social Development (the Chief Executive), for assistance to buy shoes and a pullover costing $189.90.  The assistance Mr Foster sought was a non-recoverable grant.  The Chief Executive, however, decided to grant him an advance of his benefit to be repaid at the rate of $3 per week.

[2]        Mr Foster was dissatisfied with this outcome.  He considers he should not have to repay anything because his benefit is so meagre. The Chief Executive’s decision was confirmed on an internal review and by a Benefits Review Committee.  It was upheld by the Social Security Appeal Authority (the Authority) and then on appeal to the High Court: HC AK CIV 2008-485-2395 19 March 2009 (Keane J).  On 6 July 2009, Keane J refused leave to appeal.  Mr Foster now seeks special leave to appeal to this Court under s 144 of the Summary Proceedings Act 1957.

Background

[3]        Mr Foster was granted a sickness benefit from July 2004 and an invalid’s benefit from May 2007.  In his August 2007 application for assistance by way of non-recoverable grant, he supplied a quote for shoes of $139.95 and for clothing of $49.95.  At interview he said his need for clothing was due to wear and tear and the cold weather.

[4]        Non-recoverable grants are made under the Special Needs Grant Programme (SNG programme) established and approved by Ministerial direction on 18 December 1998 under s 124(1)(d) of the Social Security Act 1964 (the Act).  The objectives of the SNG programme include providing non-recoverable financial assistance for the stated “essential and immediate needs” set out in Part 3 and to meet “immediate needs in the emergency situations” in Part 4: cl 2(a)(i) and (ii). 

[5]        Part 3 of the SNG programme sets out various categories of “Essential Needs” for which non-recoverable grants may be made.  These include food and medical needs.

[6]        Part 4 of the SNG programme provides for grants for “Emergency Needs”.  Clause 12.1 states that grants under this Part may be made “only if the chief executive is satisfied that an emergency situation exists, which has given rise to an immediate need”.  Relevant factors in assessing whether there is an emergency situation include whether the applicant “could reasonably have expected to have made provision in advance” to meet the need and the extent to which not making the grant would cause “serious hardship” to the applicant: cl 12.2(b) and (c)(iii).

[7]        Clause 13 sets out specific categories of emergency need such as emergency medical or dental treatment.  Any provision for clothing under the SNG programme would have to be made under cl 14 of Part 4 which deals with “Other Emergency Grants”.  Clause 14 makes provision for grants to be made if the Chief Executive considers that “special circumstances exist” and that without the relevant item (here, clothing and shoes) the applicant would suffer “serious hardship”.

[8]        The SNG programme is intended to be complementary to the regime covering advance payment of benefits (see cl 2(c) and, to the same effect, Dennis v Chief Executive of the Department of Work and Income CA103/03 17 July 2003 at [9]).  Section 82(6) of the Act allows the Chief Executive to make payments in advance of the benefit and to recover advances.

[9]        The original decision-maker concluded that the SNG programme did not apply to Mr Foster’s circumstances and so advanced the funds to Mr Foster on a recoverable basis.  The decision was confirmed on review and by the Authority on appeal.

[10]       In considering whether the Authority had erred in law in its approach, Keane J appears to have accepted Mr Foster’s amended evidence before the High Court that his weekly budget deficit was $35 not the $49.98 he had claimed before the Authority.  Keane J accepted also that there were problems with the Authority’s analysis of Mr Foster’s budget.  But, the Judge said, in terms of the SNG programme, the Chief Executive also had to be satisfied that not making a grant would have caused serious hardship and that the claim involved “special circumstances”.  Keane J considered at [32] that those aspects could not be met because:

Wear and tear is not a ‘special circumstance’, it is an ordinary fact of life.  An advance of benefit calling only for repayment at the rate of $3 per week, the usual form of assistance offered, which the officer adopted, had to answer any possibility of ‘serious hardship’.

The basis on which leave is sought

[11]       The question of law Mr Foster would like the Court to address is whether the High Court erred in law in determining that assistance should be granted by way of recoverable advance as opposed to a non-recoverable special needs grant.

[12]       In expanding on this question, Mr Foster made a number of submissions which we summarise as follows:

(a)The High Court did not consider all of the evidence.  Mr Foster refers, for example, to the way the University of Otago’s survey on estimated food costs, which was before both the Authority and Keane J, was dealt with;

(b)The High Court erred in treating Mr Foster’s reference to “wear and tear” as a causative factor;

(c)Repayment at $3 a week, given Mr Foster’s budget deficit, was such as to cause “serious hardship”;

(d)There is a public interest in considering these issues; and

(e)There is a private interest in considering these issues.

Applicable law

[13]       The requirements of s 144 of the Summary Proceedings Act under which this application is made were set out by this Court in R v Slater [1997] 1 NZLR 211 at 215 as follows:

It is sufficient to pose the statutory question: is there a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.

[14]       The confined nature of the appeal under s 144 was emphasised in a later observation of the Court in that case (also at 215):

Section 144 was not intended to provide a second tier of appeal … Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Discussion

[15]       We accept that Mr Foster is genuine in his desire to pursue the appeal and that he feels strongly that the SNG programme has been misapplied in his case.  Despite that, we do not consider Mr Foster’s application raises a question of law capable of bona fide and serious argument.  It is common ground that Mr Foster had to show his case came within cl 12 and cl 14 of the SNG programme.  This meant he had to bring himself within the “emergency” situation and in particular, to show both “special circumstances” and “serious hardship”.  The notion of “emergency” has to be given some meaning.  The Authority gave “emergency” its ordinary dictionary meaning.  No issue can be taken with that approach.    On that approach it was plainly open for the Authority and the High Court to conclude that Mr Foster’s situation, though difficult, did not meet that threshold.  Further, as the respondent submits, a budget deficit is not the only factor that has to be taken into account in an assessment of whether there is an “emergency” in terms of cl 12.2. 

[16]       Nor does the High Court’s approach to the evidence raise any seriously arguable error of law.  Keane J considered the evidence relating to the budget deficit and addressed the Authority’s approach to that issue.  In addition, the Judge’s findings about the reasons for the claim (wear and tear) reflected Mr Foster’s evidence.

[17]       In any event, the question is not one of the requisite importance.  The question is dependent on the particular circumstances arising in Mr Foster’s case.  This is not a test case or a case of that nature.  It is undoubtedly a matter of importance to Mr Foster but not one sufficient to meet the s 144 threshold.

Disposition

[18]       For these reasons, leave to appeal is declined.  The respondent did not seek costs and we make no order for costs.

Solicitors:

Crown Law Office, Wellington for Respondent