Hill v Chief Executive of the Ministry of Social Development
[2020] NZHC 962
•12 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-0137
[2020] NZHC 962
UNDER the Social Security Act 2018 BETWEEN
PERCY HILL
Appellant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 25 March 2020 (by telephone) Appearances:
The Appellant in person
K Hutchinson and G Niven for the Respondent
Judgment:
12 May 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 12 May 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HILL v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2020] NZHC 962 [12 May 2020]
[1] The appellant, Percy Hill, has purported to file an appeal in respect of a decision by the chairperson of the Social Security Appeal Authority (“the Authority”), declining to action an appeal brought by Mr Hill.1 The question for determination in this judgment is whether Mr Hill has filed a valid appeal and/or whether his notice of appeal should be treated as an application to extend time for bringing an appeal.
Background
[2] The decision Mr Hill had sought to appeal to the Authority involved a decision of the Benefits Review Committee dated 26 August 2019 in which he had been wholly successful, in that the Committee had reversed a debt of $1,332.80 owing from Mr Hill to the Ministry of Social Development. Despite the result, Mr Hill filed a notice of appeal with the Authority purporting to challenge the decision, but the chairperson of the Authority ruled that as there was nothing for Mr Hill to appeal against “there [was] nothing that lies within the jurisdiction of [the] Authority arising from Mr Hill’s appeal”, and advised no further action would be taken on his appeal.2
[3] The directions issued by the chairperson of the Authority make it clear that the chairperson understood that what Mr Hill was seeking through his attempt to appeal the Benefits Review Committee decision was in fact to re-open an earlier, 2010, decision of the Benefits Review Committee (“the 2010 decision”). The Chairperson however rejected Mr Hills submission that the decision Mr Hill had appealed constituted some kind of “new evidence” that would allow the Authority to re-open the 2010 decision.3
[4] The 2010 decision has in fact already been the subject of a challenge in this Court. Between 2017 and 2018 Mr Hill attempted to obtain an extension of time to appeal a decision of the Authority dated 10 July 2017 which had dismissed Mr Hill’s belated appeal against the 2010 decision.4 Mr Hill’s application came before Downs J who concluded that there were no viable questions of law arising out of the 2010 decision, and also noted Mr Hill had failed to explain the “six-year hiatus” between
1 Directions in the matter of an appeal by Percy Hill (SSAA 109/19, 7 January 2020).
2 At [15].
3 At [11]-[12].
4 The 2010 decision was made on 29 June 2010 and Mr Hill filed an appeal on 7 November 2016.
the 2010 decision being made and attempting to lodge an appeal. As a result, Mr Hill’s application was dismissed.5
The position of the parties
[5] Against this background, Ms Hutchinson for the respondent, filed a memorandum raising a number of fundamental issues with Mr Hill’s present appeal. In particular Ms Hutchinson submitted that Mr Hill had not complied with the Social Security Act 2018 in attempting to file his appeal directly in the High Court and that in doing so had also failed to serve the notice of appeal upon the respondent. Ms Hutchinson noted the Social Security Act and Social Security Regulations 2018 provide that:
(a)an appeal is commenced by written notice of appeal with the secretary of the Authority within ten working days of the determination,6 and the notice of appeal must then be served “promptly”;7
(b)the appellant must then file and serve a case stated for the High Court’s opinion on a question of law;8
(c)the Chair of the Authority must then settle and sign the case stated which is then sent to the Registrar of the High Court at Wellington.9
[6] As a result, Ms Hutchinson submitted that Mr Hill’s process was so fundamentally flawed that it could not be considered an appeal and at best could be treated as an application to extend time pursuant to s 406(4) of the Social Security Act 2018. Such an extension can however only be granted if the High Court considers “there is good and sufficient reason for the delay”,10 and Ms Hutchinson submitted there is in fact no basis for doing so, noting that:
(a)Mr Hill has not provided any reason for the delay in filing an appeal using the proper procedure; and
5 Hill v Chief Executive Ministry of Social Development [2019] NZHC 1661 at [4]-[12].
6 Social Security Act 2018 ss 405 and 406, Social Security Regulations 2018, reg 257(1).
7 Social Security Regulations 2018, reg 257(2).
8 Social Security Act 2018, s 406(2) and Social Security Regulations 2018, reg 258.
9 Social Security Regulations 2018, reg 259.
10 Social Security Act 2018, s 406(4).
(b)there is in any event no prospect of the appeal succeeding and it is in fact an abuse of process.
[7] In response to the matters raised by Ms Hutchinson, Mr Hill did attempt to argue that he should have been given more time to bring his appeal to the High Court, and that the Authority had not advised him of the proper process for challenging the chairperson’s decision. Mr Hill did not however address the failure to follow the process set out in the Social Security Act, nor did he explain why it was not served upon the respondent. He likewise was unable to identify on what basis he could have appealed the Benefits Review Committee decision that found in his favour, nor how that decision could have been said to have opened up the 2010 decision for further scrutiny.
Discussion
[8] Mr Hill has provided no explanation for not following the proper process in circumstances where he was able to otherwise prepare and file his Notice of Appeal within the statutory time limit for appealing. The Authority had no statutory obligation to personally advise him of the procedure to appeal, although the procedure to be followed is in fact set out on the Authority’s website.11
[9] More broadly, even if there was an issue with the way in which the Authority dealt with Mr Hill’s appeal there would be no point in granting an extension of time because as the chairperson of the Authority noted there was in fact nothing for Mr Hill to appeal. The Benefits Review Committee decision of 26 August 2019 that Mr Hill sought to appeal to the Authority provided nothing for Mr Hill to appeal against, and in particular did not open up the 2010 decision. Finally, the judgment of Downs J makes it clear that whether there were any questions of law with regard to the 2010 decision has in fact already been considered and rejected by this Court.
11 Notes on Appeals to the High Court from a Decision of the Social Security Appeal Authority
located on Ministry of Justice Tribunals website: the circumstances, having heard from Mr Hill and Ms Hutchinson, having considered the relevant legal framework, the background set out above and, in particular, having read the judgment of Downs J, I am satisfied that:
(a)no valid appeal has been filed by Mr Hill and to the extent it purports to be an appeal must be dismissed;
(b)Mr Hill’s notice of appeal must instead be treated as an application to extend time for filing an appeal pursuant to s 406(4) of the Social Security Act; but
(c)there is no conceivable basis for extending time for filing the appeal; and
(d)the application for extension of time is dismissed accordingly.
[11] Should the respondent seek costs a memorandum is to be filed within one month of the date of this judgment. Mr Hill will then have one month to respond following which I will determine the issue on the papers.
Powell J
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