J v Medical Appeals Board
[2023] NZHC 571
•21 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1355
[2023] NZHC 571
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER OF
An application for judicial review
BETWEEN
J
Applicant
AND
THE MEDICAL APPEALS BOARD
First Respondent
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Second Respondent
Hearing: On the papers Counsel:
S Zindel for Applicant
The First Respondent abiding the decision of the Court V Howell for Second Respondent
Judgment:
21 March 2023
JUDGMENT OF WYLIE J
[Judicial Review]
This judgment was delivered by Justice Wylie On 21 March 2023 at 11.30 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Crown Law, Wellington
Zindels Barristers & Solicitors, Nelson
J v THE MEDICAL APPEALS BOARD [2023] NZHC 571 [21 March 2023]
Introduction
[1] The applicant, J,1 seeks to judicial review of a decision made by The Medical Appeals Board (the Board) dated 8 April 2022.
[2] J has limited vision which affects his ability to work. He appealed to the Board asking it to review a decision of the Ministry of Social Development (MSD) declining his application for a supported living payment under the Social Security Act 2018 (the Act). The Board dismissed the appeal. Its decision recorded that it had assessed the medical evidence provided to it, that possible treatments had not been exhausted and that “therefore the permanence of [J’s] blindness is not yet final”.
[3] J and the second respondent, the Chief Executive of MSD, agree that the Board made an error of law when it held that J was not entitled to the supported living payment because he is not yet permanently blind. They invite the Court to quash the Board’s decision and remit the matter to the Board for reconsideration.
[4] Notwithstanding the parties’ agreement, the Court is required to be satisfied that the Board erred and that judicial review should issue.
[5]The Board is abiding the Court’s decision.
[6]I have dealt with this matter on the papers with the consent of the parties.
Background
[7] As noted, J has limited vision. On 16 October 2020, he filed an application with MSD seeking the supported living payment and asserting that he is totally blind. He explained that he cannot work without prescription contact lenses. He has to remove the lenses after a few hours, because he is intolerant to them. They cause discomfort and pain in his eyes and this hinders his ability to work. J’s application included an assessment from Victor Chong, an optometrist. Mr Chong said that J has contact lens intolerance and that he cannot wear the lenses for more than three hours a day and as a result, has limited vision. He explained that J has poor vision without
1 J’s name is suppressed because this decision refers to medical issues in respect of which J has a reasonable expectation of privacy.
contact lenses and that his vision with glasses is not good, as the higher prescription required causes him headaches.
[8] On 5 November 2020, MSD declined J’s application, as his vision did not meet its criteria for receiving a supported living payment for total blindness. Those criteria are based on either an applicant’s best visual acuity with correcting lenses or the extent of contraction of the applicant’s visual field.
[9] On 1 February 2021, J appealed MSD’s decision. He provided a work capacity certificate completed by Dr Satya Subramaniam dated 3 February 2021. Dr Subramaniam stated that J has keratoconus, that this reduces his capacity to work but that he is not totally blind.
[10] Because the work capacity medical certificate had not been provided with J’s initial application, his case manager made an urgent referral to the Regional Disability Advisor. On 17 February 2021, the advisor reviewed J’s eligibility for a supported living payment based on the work certificate and advised that the supported living payment eligibility criteria were not met for the following reason:
It is acknowledged that the client would have some limitations to the type of work that he could do however the client does not meet the criteria for the blind exemption (due to his current visual acuity with corrective lenses) and the [Regional Disability Advisor] would consider that the severity criteria and impact on suitable work at least part-time has not been established therefore would not recommend [the Supported Living Payment].
[11] On 22 February 2021, the Board wrote to J advising that it had received his notice of appeal and outlining the process it would follow. The Board held a hearing on 8 April 2022. J attended with his lawyer and MSD was represented.
The Board’s decision
[12] In reaching its decision, the Board considered the medical certificates before it and Mr Chong’s report. It summarised the factual background noting that since 2019, J has had issues with contact lens intolerance. It observed that there had been no recent medical review of possible surgical options. It recited a clinical report which mentioned that further treatment options were intrastromal injection (which is currently not available in the public health system) and corneal transplant.
[13]The Board then stated as follows:
The Board has assessed the medical evidence provided from the optometrist and verbal report from the ophthalmologist and believes that [J] does not meet the criteria of being totally blind. We believe interventional treatments such as corneal transplant have not been exhausted therefore the permanence of his blindness is not yet final.
Analysis
The Medical Appeals Board
[14] The Board is a statutory body established under s 413 of the Act. An applicant or beneficiary has a right of appeal to the Board against certain types of decisions, including a decision by MSD to decline an application for a supported living payment on the ground of restricted work capacity or total blindness.2 The Board consists of three members who are either doctors, rehabilitation professionals or others with appropriate expertise.3 The appeal is by way of rehearing. The Board has before it the documents which were before MSD together with any further documentation provided by the appellant. An appellant can attend in person; if so, a representative from MSD will also attend. Representations can be made to the Board by the appellant and by MSD. The Board can confirm, modify or reverse the decision appealed against.4 Under s 415 of the Act, the Chief Executive of MSD is bound by the Board’s decision.
Total blindness—The statutory requirements
[15] The requirements for a supported living payment are set out in s 34 of the Act. It provides as follows:
34Supported living payment: on ground of restricted work capacity or total blindness: requirements
A person is entitled to the supported living payment if the person—
(a)has restricted work capacity or is totally blind; and
(b)meets the residential requirement; and
2 Social Security Act, s 411.
3 Schedule 9, cl 1.
4 Social Security Regulations 2018/202, regulation 248–256.
(c)is aged 16 years or over.
[16] Section 35 sets out when a person has restricted work capacity. It provides as follows:
35 When person has restricted work capacity
(1)A person (P) has restricted work capacity if P is permanently and severely restricted in P’s capacity for work because of a health condition, or because of injury or disability arising (in either case) from an accident or existing from birth.
(2) P is permanently restricted in P’s capacity for work if MSD is satisfied that—
(a)the restricting health condition, injury, or disability is expected to continue for at least the period set out in regulations made under section 418(1)(b); or
(b)P is not expected to live for that period because P’s condition is terminal.
(3)P is severely restricted in P’s capacity for work if MSD is satisfied that P is incapable of regularly working at least 15 hours a week in open employment
(Emphasis added)
[17] As can be seen, the Act requires that restricted work capacity be permanent. Under the Social Security Regulations 2018, to meet the permanent restriction threshold set out in s 35(2)(a), the minimum period of time for which a person’s restricting health condition, injury or disability must be expected to continue is two years.5
[18] There is no definition of the words “totally blind” in the Act and there are no eligibility criteria in either the Act or in the Regulations.
[19] In my judgment, the ordinary meaning of the words “totally blind” used in s 34(a) does not require permanent blindness. This interpretation is consistent with the various provisions in the Act which allow MSD to review or cancel a supported
5 Social Security Regulations 2018, r 10.
living payment for total blindness in certain circumstances.6 It is also consistent with the legislative history.
The legislative history
[20] I was advised by counsel that a benefit for the totally blind was first introduced by s 14 of the Pensions Amendment Act 1924. That section did not require that blindness be permanent. Rather, it created an entitlement for a person while his or her blindness continued. The section read as follows:
Subject to the provisions of this section … every person of the full age of twenty years or upwards who is totally blind shall, while such condition continues, be entitled to a pension as hereafter provided.
(Emphasis added)
[21] Benefits for the totally blind were continued in the Social Security Act 1938. Again, there was no requirement for permanence. At the same time the benefit was extended to those who are “permanently incapacitated”.7 That a requirement of permanence was not added for those who are totally blind is telling.
[22] The distinction between a person who is totally blind and a person who is permanently incapacitated or permanently and severely restricted in his or her work capacity was continued in the Social Security Act 1964.8 This provision was amended as from 1 September 1998 by the Social Security Amendment Act 1998. Relevantly, s 40 of the 1964 Act was amended to provide that a person who was not both permanently and severely restricted in his or her capacity for work, was not to be granted an invalid’s benefit (as it was then known) unless he or she was totally blind. The distinction between a person who is totally blind and a person who is permanently and severely restricted in his or her capacity for work remained in place. This provision was renumbered and amended pursuant to the Social Security (Benefit Categories and Work Focus) Amendment Act 2013, but was substantially in place through until the Act came into force.
6 Social Security Act, ss 116, 304 and 330.
7 Social Security Act 1938, s 33(1).
8 Social Security Act 1964, s 40.
Did the Board err?
[23] I have set out above the detail of the Board’s decision. As can be seen, the Board concluded that because interventional treatments had not been exhausted, the permanence of J’s blindness was not final and that therefore MSD did not err in declining to grant J a supported living payment on the grounds of total blindness.
[24] For the reasons I have set out, s 34(a) does not require an applicant to be permanently blind. The words “totally blind” used in the section do not suggest that an applicant must be totally blind on a permanent basis. Rather, an assessment of whether or not an applicant is totally blind requires a consideration of his or her current eyesight at the time of the hearing and not how his or her eyesight may present in the future.
[25] It follows that the Board erred in law when it concluded that J’s blindness had to be permanent before he could receive a supported living payment for total blindness. It misconstrued the legislation and took into account an irrelevant consideration— namely whether J’s eyesight could be cured by interventional treatments. This had no bearing on whether or not J was totally blind at the time of the decision.
[26] As a result, I have concluded that J’s application for judicial review should succeed. The Board’s decision is quashed and the matter is remitted to the Board for reconsideration in accordance with this judgment.
Costs
[27] MSD submitted that costs should lie where they fall. Mr Zindel, in the memorandum he filed on behalf of J, did not comment on the issue of costs. The Board, in the memorandum it filed, indicated that it would abide the decision of the Court but that it might wish to be heard on the issue of costs should any person seek costs against it. As a result, I do not have sufficient information to make a costs award at this stage.
[28] I note that J is the successful party and that normally he would be entitled to his costs and reasonable disbursements. It may be that, with this indication, the parties can reach agreement between themselves. If not, I direct as follows:
(a)any application for costs is to be filed and served by way of memorandum within five working days of the date of this judgment;
(b)any memorandum (or memoranda) in response is to be filed and served within a further five working days; and
(c)memoranda are not to exceed three pages.
I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel.
Wylie J
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