Hayward v Chief Executive of the Ministry of Social Development
[2018] NZHC 1667
•9 July 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-485-679
[2018] NZHC 1667
BETWEEN NEVILLE HAYWARD
Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 8 May 2018 Counsel:
M D W King for Appellant
C M Hutchinson and T Burgess for Respondent
Judgment:
9 July 2018
JUDGMENT OF WHATA J
This judgment was delivered by me on 9 July 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors:Weston Ward & Lascelles, Christchurch Crown Law, Wellington
HAYWARD v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 1667 [9 July 2018]
[1] Mr Hayward’s home was severely damaged by the February earthquake. He and his 19-year-old daughter had to move out. He stayed with his mother until 8 May 2011 before moving in with his daughter and her boyfriend for two to three weeks. He then returned to his property to stay in a shed for about nine months until the Council insisted he could not stay there. He then returned to stay with his daughter and her boyfriend. He stayed with them from March 2012 until June 2013. During these periods, he also had part time responsibility for the care of his two young, dependent children.
[2] Mr Hayward was not insured and sought financial assistance pursuant to the Temporary Accommodation Assistance (Canterbury Earthquake) Programme (TAA) from the Ministry of Social Development. He was granted assistance at a two-person rate for the first period he was with his daughter and at a single rate for the second period. His appeal to the Social Security Appeal Authority (the Authority) seeking a two-person rate for the entire temporary accommodation period (May 2011 to June 2013) was declined. This is an appeal against that decision. In this regard, three questions have been referred to this Court for resolution:
(a)Did the Authority err in determining that the assessment of household size for the purposes of the TAA must be made at the time a person applies for that assistance?
(b)Did the Authority err in law in its interpretation of how household size should be assessed?
(c)Was there any evidence on which the Authority could base its finding that the appellant’s household was a one-person household for the period from 11 May 2011 onwards?
Background
[3]The Authority’s description of the background is not disputed. I adopt it.1
1 Mr King submits, however, that the Kerrs Road property was owned by Mr Hayward’s sister and that he was not only responsible for the sleepout rental, but for the entire rent.
[4] Mr Hayward’s home, a converted historic brewery tower, suffered significant damage in the February 2011 earthquake in Christchurch.
[5] At the time of the earthquake, the house was uninsured as a result of a mix-up with payments which occurred in July 2010. Mr Hayward was then unable to obtain insurance in the period after the September 2010 earthquake.
[6] At the time of the February 2011 earthquake, Mr Hayward’s daughter was living with him. She had been raised by Mr Hayward and lived with him until the February earthquake. Immediately prior to the time of the earthquakes his daughter’s boyfriend was also living with them. A third person occupied a flat attached to the main building. In the period immediately following the earthquake, Mr Hayward and his daughter moved to his mother’s home. For the period 22 February 2011 to 8 May 2011, accommodation assistance for board payments was paid to Mr Hayward’s mother for his board.
[7] Following the February earthquake, Mr Hayward’s daughter and her boyfriend found a house to rent at Kerrs Road. The house had an outside room which doubled as a laundry, available for him to occupy. Mr Hayward moved into this room in May 2011, two to three weeks after his daughter moved to the Kerrs Road property. He then made an application for temporary accommodation assistance. His application was declined over the phone. Mr Hayward understood that the reason he was declined assistance was because he had no insurance. Because his only income was a single rate of benefit at the time, and he had continuing mortgage payments in relation to his home, he was simply not able to afford to pay his share of the rent for the property at Kerrs Road. As a result, he moved back to a shed behind his home. However, from time-to-time he spent weekends in a campground and was obliged to meet that cost so that he could provide reasonable accommodation for his two youngest children, both of whom were under five years of age.
[8] Mr Hayward said that he lived in poor conditions in the shed for nine months before he was forced out as a result of a Council requirement in March 2012. He then moved back to his daughter’s flat and applied for temporary accommodation assistance for a second time on 13 March 2012. This application was also declined on
8 May 2012. He sought a review of the decision in relation to this application on 21 June 2012 which was declined on 27 August 2014. This ultimately resulted in an appeal to the Authority on 24 November 2014. Meanwhile, he remained living in the room at Kerrs Road until his own property was sufficiently repaired for him to move back in, in June 2013.
The Authority’s decision
[9] The Authority identified that temporary assistance for Mr Hayward commenced when his completed application form was received by the Ministry.2 This is not disputed. The Authority then assumed that the application should be assessed at the date of the application, and that the central issue was “how a homeowner’s household size should be assessed at the time of the application”.
[10]The Authority’s answer was helpfully succinct. It stated:
[21] Adopting a purposive approach to the interpretation of the provision, it seems likely that a variety of information may need to be taken into account. We infer that the purpose of fixing the amount of assistance payable on the basis of household size, is that the size of the household will reflect the size of (and therefore the cost of) the accommodation required to house a displaced household.
[22] It is unlikely that it was intended to pay assistance based on the size of the household at the time of the event if members of the household decided to move to different locations following the event. It may also be necessary to consider why the size of the household may have increased since the earthquake event.
[23] It is significant that the assistance is provided primarily for homeowners. It is not generally granted to affected household members who are not homeowners. The object of the programme is to reduce the burden on homeowners who might be incurring the costs of both rent and mortgage/rates costs.
[24] We accept without reservation that at the time of the earthquake the appellant’s household was a two-person household and he had been the sole caregiver for his daughter since she was five years old. We understand she was 19 or 20 years of age at the time of the earthquake.
[25] We have been advised that the property at Kerrs Road was rented in the name of the appellant’s daughter and her boyfriend. That is perhaps not surprising, as the appellant appears not to have been in a financial position to
2 The Authority’s decision records he was paid at a one-person rate from 13 March 2012 to 28 June 2013.
take on the financial obligations of a tenancy agreement, but the decision to rent the property was apparently not a joint decision and the appellant did not move in at the same time as his daughter. We do not have a copy of the tenancy agreement. The appellant says he believes the rental was originally $300 per week and was split three ways.
[26] It is significant that the appellant was not the tenant and therefore had no legal obligation to pay the rent for the Kerrs Road house other than apparently as a subtenant, to pay for the cost of one room.
[27] Had the appellant been the tenant of the house at Kerrs Road it would have been a simple proposition to find that he had entered into a commitment to provide for his household of two people which he needed to meet and he should be classified as a two-person household. But that is not the case. His only obligation was as a subtenant to pay a share of the rent for one person. Therefore, we conclude that the appellant’s household size as at May 2011 should be assessed as a one-person household.
[28] In summary, we consider determination of household size must be made at the time of application, taking into account the household size at the time of the earthquake and the legal commitment made by the homeowner to provide for the members of his or her quake-affected household and any other relevant matters.
Statutory framework
[11] The power to grant of temporary assistance is sourced in the Social Security Act 1964 (SSA). It states, relevantly for present purposes:
1A Purpose
The purpose of this Act is— (a) ……..
(b)to enable in certain circumstances the provision of financial support to people to help alleviate hardship:
(c)to ensure that the financial support referred to in paragraphs (a) and
(b) 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; and
(ii)any financial support that they are eligible for or already receive, otherwise than under this Act, from publicly funded sources:
[12] The Minister for Social Development approved the TAA programme on 16 February 2011. It was first gazetted on 3 March 2011. The programme has been
reshaped on several occasions. The March 2011 and March 2013 iterations are germane to the present appeal.
The March 2011 instrument
[13]The March 2011 instrument stated the purpose of the TAA programme is:
4Purpose – The purpose of this programme is to provide special assistance to homeowners and certain other people:
…
(d) who require assistance to meet the costs of their temporary accommodation during the period they need to vacate their usual homes;
…
[14]Temporary accommodation costs were defined as follows:
Temporary accommodation costs, in relation to a person, means the costs of any temporary accommodation for the person and the members of his or her family who usually reside with the person being either:
(a)in relation to premises temporarily rented by the person, the amount paid for rent of the premises, excluding any service costs included in that rent and any arrears;
(b)in relation to premises in which the person is a temporary boarder or lodger, the amount paid for board or lodgings (excluding any arrears); or
(c)in relation to any other person, the costs of short-term accommodation in a holiday park, motel, hotel, or serviced apartment (excluding any arrears).
[15] Temporary accommodation assistance is then defined at cl 8, which relevantly states:
8Temporary accommodation assistance – (1) Subclause (2) applies to a person if the chief executive is satisfied that:
(a)either:
(i)the person has been required to vacate any affected premises because the premises are uninhabitable and the person cannot reoccupy the premises until remediation work is carried out;
…
(d)either:
(i)…
(ii)the person did not have insurance cover in respect of the affected premises or for temporary accommodation while the affected premises are uninhabitable or remediation work is being carried out, and has exceptional circumstances to justify the provision of financial assistance.
[16] Subclause 8(2) then relevantly empowers the chief executive to make a grant as follows:
(2)The chief executive may grant an applicant to whom this subclause applies, from a date and for a period the chief executive determines, temporary accommodation assistance to assist in meeting the applicant’s temporary accommodation costs if the chief executive is satisfied that the applicant:
(a)intends to resume occupation of the affected premises as his or her home as soon as remediation work is carried out; and
(b)is not receiving, and his or her spouse or partner is not receiving, an accommodation supplement or an accommodation benefit in respect of his or her temporary accommodation costs; and
(c)has taken all reasonable steps to minimise the person’s liability to pay temporary accommodation costs and the amount of those costs.
[17]Rates of temporary assistance were, under this version of the programme:
9Rates of temporary accommodation assistance – The amount of temporary accommodation assistance granted under clause 8(2) is:
(a)For a person who is married or in a civil union or in a de facto relationship and has 1 or more dependent children, or for a sole parent with 2 or more dependent children, $330.00 a week;
(b)for a person who is married or in a civil union or in a de facto relationship and has no dependent children and, or for a sole parent with 1 dependent child, $275.00 a week;
(c)for any other person, $180.00 a week.
[18]Assistance commenced on the latest of the following dates:
10Commencement of assistance – Temporary accommodation assistance must not be granted in respect of a period earlier than the latest of the following dates:
(a)The date on which the applicant ceased to occupy the affected premises as a home;
(b)the date on which the applicant’s insurance cover for temporary accommodation (if any) expired;
(c)the date on which the completed application form referred to in clause 7 was received by the department.
[19]Assistance ended on the close of the earliest of the following dates:
11Ending of assistance – Temporary accommodation assistance ends on the close of the earliest of the following dates:
(a)The end of the period set by the chief executive under clause 8(2);
(b)the date on which the applicant ceases to incur temporary accommodation costs;
(c)the date on which the applicant or his or her spouse or partner (if any) re-occupies the affected premises as a home;
(d)the later of the following dates:
(i)The date on which the affected premises becomes available for occupation as a home following the completion of remediation work;
(ii)the last day of a reasonable period allowed by the chief executive following that date for the applicant to reoccupy the affected premises as a home.
…
The March 2013 instrument
[20] The March 2013 instrument introduced the “household concept”. This involved three key changes for present purposes:
(a)Household means “the person and the members of the person’s family usually residing with him or her; and members of a person’s household has a corresponding meaning.
(b)In cl 5(1) the definition of temporary accommodation costs is amended to replace “his or her family who usually reside with the person” with “the person’s household”.
(c)Clause 9 rates are amended as follows:
7Clause 9 amended (Rates of temporary accommodation assistance) – In clause 9, replace paragraphs (a) to (c) with:
“(a)for a person whose household comprises 3 or more people, $330 a week;
(b)for a person whose household comprises 2 people,
$275 a week;
(c)for a person whose household comprises 1 person,
$180 a week.”
[21] Some general observations can be made about the purpose, policy and scheme of the TAA under both instruments:
(a)The TAA is directed to alleviating hardship by providing assistance to quake affected homeowners and their families with temporary accommodation costs;
(b)Temporary accommodation costs refer to rent or lodging “paid” or the “costs” of short term accommodation;
(c)The rates for assistance depend on the numbers of persons needing accommodation – that is:
(i)Under the 2011 instrument, the homeowner, his or her partner, and his or her dependent children; or
(ii)Under the 2013 instrument, the home owner and the members of the family usually resident with him or her.
[22] It is not disputed that Mr Hayward was a person who qualified for assistance as a “homeowner” of earthquake damaged land.
Jurisdiction on appeal
[23] Appeals to this Court are by way of case stated on issues of law pursuant to s 12Q of the SSA. The three issues are stated at [2].
[24] I make a preliminary observation that the appeal to the Authority and the issues stated on appeal to me, are premised on Mr Hayward’s claim to a two-person entitlement, that is, based on his and his eldest daughter’s accommodation needs. In argument before me, however, the accommodation needs of Mr Hayward’s two dependent children were brought into focus. I propose therefore to address the questions on the basis upon which they were posited by the Authority, namely, based on a two-person household claim. I will then separately address the significance of the two dependent children in the last part of my judgment.
Did the Authority err in determining that the assessment of household size for the purposes of the TAA must be made at the time a person applies for that assistance?
[25]Mr King for Mr Hayward submits:
(a)The purpose of the TAA programme is to enable households affected by the earthquakes to secure rental accommodation.
(b)It does not make sense to define “household” at the time of the application, when, due to the earthquakes, families may have been forced to separate.
(c)Nor should the accommodation assistance be fixed by the cost of an applicant’s accommodation at the time of the application, because that simply benchmarks his assistance by reference to his ability to pay for the accommodation.
(d)Rather, consistent with the purpose of the SSA to alleviate hardship, any temporary accommodation assistance is directed to enabling a “household” at the time of the earthquake to continue to live together.
(e)Any accommodation assistance should, therefore, should be fixed by reference to a two-pronged enquiry:
(i)the household as at the date of the earthquake event unless:
(ii)that household has been reduced; and
(iii)the intention of that household is to remain reduced regardless of the availability of the TAA at the household size as at the date of the earthquake event.
[26] Ms Hutchinson, for the Chief Executive, submits the usual date for assessment is the date of application and there is nothing in the scheme of the TAA to suggest that any other approach should be taken to the date of the assessment. This is supported by the fact the Programme was made before the February 2011 earthquake.
Assessment
[27] The answer to the first question is no. I am satisfied that assessment of “household” at the date of application is correct. As noted, the basic purpose of temporary accommodation assistance under both applicable instruments is to help homeowners to obtain rent relief in accordance with their temporary housing needs. This accords with an overarching purpose of the SSA, recorded at s 1A(b), to enable in certain circumstances the provision of financial support to people to help alleviate hardship. But the scheme of both instruments is clearly designed to provide that assistance according to the needs of the homeowner at the time of the application. The express purpose of the instruments is to provide assistance to meet the “temporary accommodation costs” during the period “they need to vacate their usual home” and temporary accommodation costs relate to the amount of rent or lodgings “paid” or costs of short term accommodation. The assistance then ceases on the date the applicant ceases to incur the costs. These basic requirements make it clear that housing needs are not to be considered in the abstract. Rather, they are to be assessed by reference to the actual accommodation needs and costs of the applicant homeowner at
a particular time. Logically, that is at the time of the application when those needs and costs are known or ascertainable.
[28] This does not mean that an applicant homeowner could not obtain accommodation assistance for his or her family members if at the specific time of the application those members may be living elsewhere. A scheme designed to provide post-earthquake relief must be implemented realistically; members of a family may have initially dispersed because there was nowhere to accommodate them together at that time. In this regard, the Authority noted:
It is unlikely that [the scheme] was intended to pay assistance based on the size of the household at the time of the event if members of the household decided to move to different locations following the event.
[29] If by this observation the Authority foreclosed the possibility of a family obtaining accommodation assistance which enables them to repatriate, the Authority would have erred. Provided the assistance sought is needed at the time of the application to house the homeowner’s household, then there is nothing in the scheme precluding that prospect. However, I apprehend the Authority was simply observing that the accommodation grant relates to actual accommodation needs and costs of the homeowner applicant, rather than stipulating a rule that dispersed families cannot obtain accommodation relief that enables them to repatriate. This is evident from [28] of the decision, repeated here for convenience:
[28] In summary, we consider determination of household size must be made at the time of application, taking into account the household size at the time of the earthquake and the legal commitment made by the homeowner to provide for the members of his or her quake-affected household and any other relevant matters.
[30] For reasons I will explain below, however, the “time of the application” must include the Benefit Review and Appeal stages.
Did the Authority err in its interpretation of how “household” size should be assessed?
[31]Mr King submits that:
(a)The Authority’s determination that Mr Hayward’s household size was that of a single-person household erroneously turns on what Mr Hayward could afford to pay at the time of the application, rather than what his household if fact was, namely him, his teenage daughter and his two younger children.
(b)The Authority’s approach lacked reference to the reality that many people faced post-22 February 2011 and runs contrary to the purpose of the TAA programme.
(c)Thus, the test ought to be:
The determination of household size must be made at the time of the event, taking into account the household at the time of the event and the homeowner’s intention to provide for members of his or her affected household, and any other relevant matters.
The TAA is to become payable as at the date of the application if a legal commitment has been entered into by the homeowner to provide for members of the household or upon such time as a commitment is entered into.
[32] Ms Hutchinson submits that ‘household’ only became relevant after the February 2013 amendment. Before the amendment, the rate was set by reference to the number of dependent children. In any event, household refers to the number of persons usually residing with the applicant and the level of assistance needed for temporary accommodation. The Authority correctly assessed these needs.
Assessment
[33] The answer to question 2 is no. The 2011 instrument enabled accommodation assistance at rates based on the number of dependent children. Mr Hayward’s application for assistance stated that he had no dependent children. Furthermore, Mr Hayward’s eldest daughter is not a dependent child in terms of the SSA (that is, she was older than 18 at the time of the applications).3 Accordingly, Mr Hayward was
3 In correspondence to the Benefit Review Committee Mr Hayward says she was 19 at the time of the February earthquake.
not eligible for a two-person rate until at least the introduction of the 2013 instrument in respect of his eldest daughter.
[34] In terms of the 2013 instrument, as recorded at [28] of the decision, the Authority in fact expressly addressed Mr Hayward’s actual household’s needs and costs: including by reference to his household size at the time of earthquake and any legal commitments made to house the household. Save in one (potential) respect I will come to below at [40], in doing so it properly framed its assessment of Mr Hayward’s then “household” requirements for housing and therefore temporary accommodation assistance.
[35] I also reject the contention that accommodation assistance should be based on Mr Hayward’s theoretical household needs. In this regard, it is important to differentiate between potential eligibility for assistance and whether any assistance, and in what amount, should in fact be granted. Eligibility attaches to usually resident members of the person’s family. However, the quantum of any assistance is clearly linked to actual accommodation costs to be incurred or already incurred by the homeowner to accommodate those members. On all the available evidence, Mr Hayward’s daughter was plainly supporting herself at the time of the application and Mr Hayward was only paying, and legally liable to pay, as a subtenant for a single room. I am therefore satisfied that the Authority did not err in law insofar as it assessed household size based on Mr Hayward’s claimed two-person household.
[36] For completeness, nothing I say here should be taken to suggest that the Chief Executive was empowered to reject applications simply because the homeowner was not legally committed to a rental at the time of the application. Whether the homeowner had demonstrated eligibility had to be assessed on the facts at the time of the application, which may or may not include a binding rental commitment. But, the limited basis upon which Mr Hayward was bound to pay rent for a single room was a relevant factor in this case.
Was there evidence on which the Authority could base its finding that the appellant’s household was a one-person household?
[37]Yes, as that finding relates to Mr Hayward’s oldest daughter.
[38] As the Authority correctly noted, Mr Hayward’s daughter held the tenancy at the Kerrs Road address. By contrast, Mr Hayward held a sub-tenancy or boarding arrangement at the same address. Mr King’s submission that she should, nevertheless, be treated as a member of Mr Hayward’s household ignores that the object of the instrument is to provide assistance to homeowners:
(b)who require assistance to meet the costs of their temporary accommodation during the period they need to vacate their usual homes
[39] It is no answer to this basic point that Mr Hayward would or could have assumed the tenancy if he had been granted temporary accommodation assistance. At no stage did Mr Hayward assume, or purport to assume responsibility for his older daughter or the Kerrs Road tenancy, other than as a subtenant (or boarder). I therefore see no error in the conclusions reached by the Authority as it relates to Mr Hayward and his older daughter.
The two dependent children
[40] This dispenses with the case as formally stated. But, as noted the appeal before me was advanced by reference to the needs of Mr Hayward’s two youngest children. In this regard, the Authority noted, when identifying the effect of the Chief Executive’s decision in May 2011:
[30] There were significant consequences flowing from that decision [forcing Mr Hayward out of Kerrs Road] for the appellant. He was forced to live in very difficult conditions and to pay temporary accommodation at weekends so that he could adequately care for his younger children.
[41] There was therefore evidence before the Authority contradicting the primary finding of fact, namely that Mr Hayward had a one-person household only. There was also material before the Authority that Mr Hayward made the Benefit Review Committee aware that he had the care of his dependent son and daughter. In a letter addressed to the Benefit Review Committee, supplied as supplementary materials to the Authority, he stated:
They were both under five at the time of the earthquake. The boy stays with me now three days and nights per fortnight, plus two afternoons and evenings, and the girl stays with me five days and nights per fortnight.
Each is a separate shared parenting order by the Family Court, and so it means I have the smaller children in my care for eight days and nights a fortnight, over half the week really.
[42] Based on this information, Mr Hayward was prima facie eligible for assistance at least from time to time as a three-person household, provided he was incurring temporary accommodation costs in respect of his two dependent children.
[43] I acknowledge the Ministry’s point that Mr Hayward cannot be entitled to assistance unless he provides the information to support it. Although the Ministry of Social Development has a general obligation to assess applicants’ needs and point them towards entitlements, unless they are put on notice that they might have incomplete or incorrect information, they are under no duty to second guess or investigate further.4 Here, because Mr Hayward advised in his application he did not have dependent children, he could not have legitimately expected to receive a supplementary benefit to provide for them without correcting that advice. This position was outlined in the Privacy Statement at the end of his application:
You are not required to give us information, but if you do not give us all the information we ask for, your application for assistance may be declined.
[44] Any application based on this information that is finally determined is effectively binding on Mr Hayward.5 But, if on a review of a live application the applicant makes the Ministry aware of his legitimate household needs, the Ministry cannot simply ignore it. It could not have been contemplated by Parliament that the Ministry is hand tied by the literal terms of an application document at the review or appeal stages when dealing with a legislative policy directed to relieving hardship.6 In my view, therefore, the assessment of the merits of the application must include information supplied during the review and appellate process.
[45] Accordingly, there was an evidential basis for the Authority to find that Mr Hayward had responsibility, from time to time, for a three-person household. This
4 Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418 at [43]-[44].
5 Section 80AA of the Social Security Act makes it clear that back-dating of benefits can only take place when there has been erroneous action or inaction on the part of the department; failure of an applicant to disclose relevant information is not sufficient.
6 See Koroua v Chief Executive of the Ministry of Social Development, above n 4, at [16]-[19].
could be framed as an error of law insofar as the Authority’s decision contradicts the evidence.7
Relief?
[46] Even so, I am not prepared to grant relief. First, Mr Hayward made his application on the basis he had no dependents, and then pursued his review application and appeal on a two-person household basis. It therefore was never his case that he was entitled to a three-person rate. Second, Mr Hayward only incurred $110 in sub- tenancy costs for a single room during the relevant period. There is no evidence to suggest that Mr Hayward paid any additional accommodation cost specifically for his two dependent children throughout the relevant application period (that is, from March 2012). The corollary of this is that the Authority’s error (to the extent there was one) has no material effect on Mr Hayward’s actual entitlement for accommodation assistance. The Chief Executive could not pay, pursuant to s 8(2) of the TAA scheme, an accommodation grant at a three-person rate of $330 when costs to accommodate three people were never, in fact, incurred.
[47] Third, I also apprehend that Mr Hayward is effectively seeking damages in respect of a lost opportunity to obtain a larger accommodation grant. He said as much to the adjudicator. But that reveals the underlying flaw in Mr Hayward’s appeal. It is not the function of the present appeal process to compensate him for hypothetical accommodation costs.
[48] Having said that, Mr Hayward has not been well served by the Ministry. He is partially to blame for this. His applications led the Ministry astray. But once the Ministry had information that Mr Hayward had the care of two dependent children, it should have acted proactively to assist him so that he could provide appropriate accommodation for them according to their needs. By the time the review was completed, the need for accommodation assistance had long expired. It is also
7 As noted in Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418 at [9] and Bryson v Three Foot Six Ltd [2005] NZSC, [2005] 3 NZLR 721 at [26], error of law on sufficiency of evidence grounds includes: (a) there is no evidence to support the determination,
(b) the evidence is inconsistent with, and contradictory of, the findings of fact; or, (c) it contradicts the only true and reasonable conclusion of fact based on the evidence.
inferable from the available evidence that Mr Hayward and his two dependent children endured periods of substandard accommodation which could and should have been avoided. For this reason, it is hardly surprising the Authority recommended an ex gratia payment. It might be thought, however, that the $2,000 ex gratia payment later made by the Chief Executive was parsimonious in this context.
Outcome
[49] The answer to the first two questions is no. The answer to the third question is yes. The case on appeal is therefore dismissed. Finally, I have considered whether evidence about Mr Hayward’s dependent children should have produced a different result. I am satisfied it does not. He did not seek payment for or incur additional costs for them. Any referral back would be pointless.
Costs
[50] If costs cannot be agreed, submissions may be filed, no longer than three pages, within five working days. The Ministry was successful. However, given that Mr Hayward is legally aided and his appeal was not without some merit, my current thinking is costs should lie where they fall.
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