Lawson v Chief Executive of the Ministry of Social Development
[2017] NZHC 967
•12 May 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-000062
CIV-2016-485-000101
CIV-2016-485-000670 [2017] NZHC 967
IN THE MATTER OF an appeal by way of case stated from the
determination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security Act 1964
BETWEEN
SONJA LAWSON Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 26-27 April 2017 (at New Plymouth) Counsel:
Appellant in person (assisted by S J Fraser as Amicus Curiae) M Conway and J Perrott for Respondent
Judgment:
12 May 2017
JUDGMENT OF COLLINS J
Introduction
[1] This judgment addresses seven questions of law posed by the Social Security Appeal Authority (the Authority) from three decisions it made in assessing Ms Lawson’s disability costs to calculate her entitlement to Temporary Additional Support under s 61G of the Social Security Act 1964 (the Act).
[2] I am declining to answer most of the second and all of the fifth questions posed by the Authority because they are hypothetical. I am also declining to answer the fourth and sixth questions asked by the Authority because they do not raise any
genuine questions of law.
LAWSON v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 967 [12 May 2017]
[3] I explain the questions posed by the Authority at paragraphs [37], [56] and [77] below. Before addressing those questions I shall, in Part I of this judgment, set out the background that is common to all three decisions of the Authority and explain the relevant legislation. Part II of this judgment briefly outlines the Authority’s functions and the High Court’s role on appeal. Part III addresses the question of law that has been posed following the first decision of the Authority. Part IV addresses four questions posed in relation to the second decision of the Authority and Part V addresses two questions that arise from the third decision of the Authority.
PART I: BACKGROUND
[4] Ms Lawson has been engaged in protracted litigation with the Chief Executive of the Ministry of Social Development (the Chief Executive). She has taken 28 appeals to the Authority between 2009 and 2017 and the hearing before me was the second that the High Court has conducted in the past 12 months concerning Ms Lawson’s disputes with the Chief Executive. Last year Dobson J observed that Ms Lawson is a “serial challenger of decisions made in the name of the
Chief Executive”.1
[5] Ms Lawson has suffered ongoing serious and debilitating health issues. In the first of the Authority’s decisions which is covered by this judgment,2 the Authority explained that Ms Lawson “suffers from chronic fatigue syndrome, ME, Irritable Bowel Syndrome, chemical sensitivities, skin disorders and related issues”.3
[6] An insight into Ms Lawson’s difficulties can be gleaned from Mr Fraser’s submissions, counsel appointed to assist the Court. He observed that in the 1990s Ms Lawson:4
… was gainfully employed at the Taranaki Council as a laboratory assistant and was active in the Taranaki horse racing industry. This all came to an end when she started to have severe health problems. [Ms Lawson] was detained in a mental health ward and subjected to a community treatment order. She strongly believes this is all caused by certain individuals acting in bad faith.
1 Lawson v Chief Executive of the Ministry of Social Development [2016] NZHC 910 at [3].
2 Re SSA46/13 [2013] NZSSAA 96.
3 At [4].
4 Submissions of counsel assisting the Court, 12 April 2017 at [4].
She believes an incorrect diagnosis and the subsequent compulsory medication, has further ruined her health. …
[7] Ms Lawson filed written submissions and represented herself in the hearing before me. She also had the benefit of Mr Fraser’s submissions. These were presented on the basis that he would advance every tenable argument in support of Ms Lawson’s case. When she addressed me in person Ms Lawson emphasised that while she suffers a number of serious physical medical conditions, she has never had a psychiatric condition.
[8] A further insight into the Ms Lawson’s challenges with the Chief Executive is revealed by the fact that her case is managed by a “remote client unit” within the Ministry of Social Development (the Ministry). This means Ms Lawson never gets to meet with and talk directly to the Ministry employees who are managing her case. The Ministry suppresses the identity of the decision makers from Ms Lawson by anonymising the names of the officials who make decisions in her case, including
those on the Benefits Review Committee.5
[9] Greater appreciation of the issues associated with Ms Lawson’s case can be deduced from the volume of materials that have been generated. Information before me suggests there are a large number of Eastlight folders within the Ministry relating to Ms Lawson. The evidential material before me comprised nine “bundles of relevant documents” and seven “supplementary bundles of documents”.
[10] Ms Lawson’s difficulties with the Ministry came to a head in 2010 when she
was prosecuted for fraud for not fully disclosing assets as required, in order to lawfully receive the benefits that were paid to her.6
5 A benefits review committee is created by s 10A of the Social Security Act 1964. There is a right of appeal against their decisions to the Social Security Appeal Authority: s 10A(9)(b).
6 R v Lawson DC New Plymouth CRI-2010-021-1078, 26 August 2011. Ms Lawson was found guilty of 15 charges of using a document with intent to obtain a pecuniary advantage,
dishonestly and without claim of right between 10 January 2006 and 27 August 2009 by Judge A C Roberts. She received a suspended sentence of nine months’ imprisonment (R v Lawson DC New Plymouth CRI-2010-021-1078, 29 August 2011). Her appeal against conviction was dismissed by the Court of Appeal (Lawson v R [2012] NZCA 426). Her application for leave to appeal to the Supreme Court was dismissed (Lawson v R [2013] NZSC 16).
[11] When Ms Lawson was charged with benefit fraud the Ministry cancelled the special benefit she had previously received. As a consequence Ms Lawson applied for more limited and short term Temporary Additional Support. Since the cancellation of Ms Lawson’s special benefit, there has been an almost continuous dispute between Ms Lawson and the Chief Executive over the quantum of the disability costs she is entitled to receive as Temporary Additional Support and whether the prosecution was taken in good faith. In the hearing before me, Ms Lawson stressed that her ultimate goal was to seek vindication in relation to the criminal proceedings brought against her.
[12] Currently Ms Lawson receives from the Ministry:
(1) A Supported Living payment (previously called Invalids Benefit). (2) An Accommodation Supplement.
(3) A Disability Allowance.
(4) Temporary Additional Support.
[13] The current litigation relates primarily to the dates Ms Lawson should have received Temporary Additional Support and the level of the Temporary Additional Support she has received.
Temporary Additional Support
[14] The purpose of Temporary Additional Support is explained in the following way in s 61G(1) of the Act:
The purpose of Temporary Additional Support is to provide temporary financial assistance within the prescribed limits as a last resort to alleviate the financial hardship of people whose essential costs cannot be met from their chargeable income and other resources, while ensuring that people seeking or granted that assistance take reasonable steps to reduce their costs or increase their chargeable incomes.
[15] The assessment of an applicant’s eligibility for Temporary Additional Support
is calculated by reference to a formula in s 61G of the Act and the Social Security
(Temporary Additional Support) Regulations 2005 (the Regulations). Ministerial directions which I refer to in paragraph [22] to [24] are also relevant.
[16] Section 61G(2) of the Act states that an applicant is eligible for Temporary
Additional Support if:
(a) his or her chargeable income is less than his or her essential costs;
and
(b) he or she has cash assets of not more than the prescribed amount;
and
(c) he or she meets any prescribed criteria and any other requirements set out in [the Regulations] …
[17] The first step of the formula requires a calculation of an applicant’s “chargeable income”, which is comprehensively defined in sch 1 of the Regulations. It is not necessary to set out the full definition in this judgment. Suffice for present purposes to record that chargeable income means the net rate of any benefit payable to Ms Lawson under the Act, together with any other income and specific payments she may receive.
[18] The second step requires a calculation of an applicant’s “essential costs” which are defined in s 61G(7) of the Act to mean “the sum of a person’s allowable costs and standard costs”.
[19] “Allowable costs” are comprehensively defined in sch 2 of the Regulations. Again, it is not necessary to set out the full definition. For present purposes it is sufficient to note that to qualify for an “allowable cost” (included as part of an “essential cost”), the expense must:
(1)be included in the exhaustively defined list of “essential expenses” in cl 3 of sch 2 of the Regulations. That list includes “disability costs”; and
(2)be one that could not be readily avoided or varied at the time it was incurred.
[20] “Disability costs” are defined in cl 4 of the Regulations to mean:
(a) … disability-related expenses, being expenses of a kind for which a disability allowance under section 69C of the Act would be payable; but
(b) despite paragraph (a) does not include any costs for counselling … in excess of the amount paid for that purpose by way of a disability allowance under section 69C of the Act.
[21] Section 69C of the Act contains three requirements for a disability allowance
that are relevant to Ms Lawson’s case. Those requirements are:
(1)The Chief Executive must be satisfied that the disability “is likely to continue for not less than six months” and has resulted in a reduction of the person’s independent function to the extent that the person requires ongoing support to undertake the normal functions of life or ongoing supervision or treatment by a health practitioner.7
(2) The applicant must have “additional expenses of an ongoing kind
arising from [his or her] disability”.8
(3)The assistance available under the Act for the additional expenses must not be sufficient to meet the additional expenses.9
[22] In addition to the requirements of the Act and Regulations, the Ministry has published a Ministerial direction pursuant to s 5 of the Act relating to granting and reviewing a disability allowance.10
[23] Under cl 2 of the Ministerial direction, the Chief Executive must, subject to cl 3, require the applicant to provide written verification that he or she incurred the expenses claimed, that the expenses are of an ongoing kind and that the expense
arises from the person’s disability. The verification is to be by way of:
7 Social Security Act 1964, s 69C(2).
8 Section 69C(2A)(a).
9 Section 69C(2A)(b).
10 Ministerial Direction “Disability Allowance”, 28 March 1999.
(d) a certificate from a registered health professional as to the need for the goods or services to which the expenses relate, how that need relates to the person’s disability, the expected duration of that need and the therapeutic value to the person in receiving the goods or services; and
(e) invoices or receipts for payment of the expenses; and
(f) any other verification that [the Chief Executive] considers necessary or satisfactory.
[24] Under cl 3 of the Ministerial direction, the Chief Executive has a discretion, when reviewing entitlement to any disability allowance, not to require the applicant to provide verification for a particular expense if he is satisfied the criteria in cl 2 of the Ministerial direction are satisfied and the amount of the expense has not changed or decreased.
[25] If granted, Temporary Additional Support is for a prescribed period.11
Ordinarily that period is 13 weeks.12
[26] On 16 August 2012, Ms Lawson was granted Temporary Additional Support until 20 November 2012. On 17 November 2012, the Chief Executive decided not to re-grant Ms Lawson’s Temporary Additional Support because he determined she had not provided the necessary verification of her expenses. On 25 November 2012, Ms Lawson applied for a review of the Chief Executive’s decision. That review was conducted by the Benefits Review Committee on 15 February 2013. The Committee’s decision led to the first appeal to the Authority. In its decision on
9 December 2013, the Authority upheld the majority of the Chief Executive’s assessment of Ms Lawson’s disability costs but directed the Chief Executive to include the costs incurred by Ms Lawson of attending a swimming pool in Hawera twice a week, travel to the swimming pool, a gymnasium, doctor and pharmacist.13
[27] On 23 January 2013, the Chief Executive assessed Ms Lawson’s disability costs on the basis of the verified expenses she provided. On 28 January 2013, Ms Lawson applied for a review of the Chief Executive’s decision not to include
certain items that she claimed as disability costs. The Chief Executive increased
11 Social Security Act 1964, s 61G(3)
12 Social Security (Temporary Additional Support) Regulations 2005, cl 14(1)(b).
Ms Lawson’s disability costs on 5 February 2013 but determined that she was still not entitled to Temporary Additional Support. Ms Lawson applied to review that decision on 8 February 2013. The decision of the Benefits Review Committee led to the second appeal to the Authority.
[28] The Authority heard Ms Lawson’s second appeal on 27-29 May 2014 and delivered its second decision on 13 November 2014.14 The Authority decided not to vary any of its findings from its first decision delivered on 9 December 2013.
[29] The Authority heard Ms Lawson’s third appeal on 5 September 2014 and delivered its decision on 11 December 2014.15 The third appeal challenged the Chief Executive’s decision declining to include costs associated with Ms Lawson swimming three times a week in her disability costs prior to 20 November 2013. The issues before the Authority in the third appeal were whether the allowance for swimming should be increased to three visits a week and be backdated to July 2013 instead of November 2013.
[30] I will traverse the relevant elements of the Authority’s decisions when dealing
with the questions posed by the Authority in Parts III, IV and V of this judgment.
PART II: AUTHORITY AND HIGH COURT’S ROLE ON APPEAL
[31] It is necessary to briefly outline the functions of the Authority as well as the
High Court’s role on appeal.
[32] When hearing appeals against decisions of the Chief Executive, the Authority has all the powers, duties, functions, and discretions that the Chief Executive had in respect of the same matter.16 The appeal is generally by way of rehearing and the Authority has full discretionary power to hear and receive evidence or further
evidence on questions of fact.17
14 Re SSA096/13 [2014] NZSSAA 96.
15 Re SSA038/14 [2014] NZSSAA 107.
16 Social Security Act 1964, s 12I(2).
17 Section 12M(1) and (3).
[33] The Supreme Court considered the Authority’s role in Arbuthnot v Chief
Executive of the Department of Work and Income and said:18
The duty of the Authority was to reach the legally correct conclusion on the question before it, applying the law to the facts as it found them upon the rehearing…
[34] The High Court’s role on appeal is limited to questions of law.19 It is well accepted that an appeal on a question of law alone is not a general right of appeal but a more limited right.20
[35] The Supreme Court has explained that a factual finding can amount to an error of law in limited circumstances and only when the fact-finder’s decision is:21
(a) not based on evidence;
(b)based on evidence that is inconsistent with and contradictory of, the findings of fact; or
(c) contradicts the only true and reasonable conclusion of fact that was available on the evidence.
PART III: FIRST DECISION
[36] In the first decision the issue before the Authority was whether the
Chief Executive’s assessment of Ms Lawson’s disability costs as at 20 November
2012 was correct.22
[37] The question the Authority has asked this Court to answer in relation to its first decision is:
18 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1
NZLR 13 at [26].
19 Social Security Act 1964, s 12Q.
20 D v Chief Executive of the Ministry of Social Development [2013] NZHC 1520 at [21]-[25].
21 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[26] referring to
Edwards v Bairstow [1956] AC 14 (HL).
Did the Authority err in law by failing to exercise its discretion under s 4C of the Commissions of Inquiry Act 1908 to require the Chief Executive to provide it with further information about the appellant’s claimed disability costs which the appellant alleged the Chief Executive held before reaching its decision?
[38] The question posed by the Authority in relation to its first decision invites an explanation of the scope of the Authority’s duty to require the Chief Executive to provide it with further information about an appellant’s disability costs.
[39] The question partially relates to the duty of the Chief Executive under s 12K(4) of the Act to provide relevant information and material to the Authority. That subsection states:
12K Procedure on appeal
...
(4) As soon as possible after the receipt of the copy of the notice of appeal by the chief executive, the Chief Executive shall send to the Secretary of the Appeal Authority—
(a) any application, documents, written submissions, statements, reports, and other papers lodged with, received by, or prepared for, the chief executive and relating to the decision or determination appealed against;
(b) a copy of any notes made by or by direction of the chief executive of the evidence given at the hearing (if any) before the chief executive;
(c) any exhibits in the custody of the chief executive;
(d) a copy of the decision or determination appealed against;
and
(e) a report setting out the considerations to which regard was had in making the decision or determination.
[40] The Authority also has the power to direct the Chief Executive to lodge any additional report with the Authority under s 12K(5) of the Act.
[41] Under s 12M(3) to (5) of the Act the Authority has full discretionary power to hear and receive evidence or further evidence on questions of fact either by oral evidence or affidavit, to have regard to any report lodged by the Chief Executive under s 12K of the Act and to receive as evidence any statement, document,
information which in the opinion of the Authority may assist it to deal with the matters before it.
[42] Under s 12M(6) of the Act, the Authority is deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, and therefore has the power under s 4C(1)(b) of that Act to require the Chief Executive to:
require any person to produce for examination any papers, documents, records or things in that person’s possession or under that person’s control, and to allow copies of or extracts from any such papers, documents or records to be made.
[43] The question posed by the Authority in relation to its first decision arises as Ms Lawson stated to the Authority in her notice of appeal that the Ministry had “destroyed, hid [or] tampered” with volumes of material relating to her case. At the first appeal hearing before the Authority, Ms Lawson’s advocate, Mr Howell, submitted that he and a colleague had sighted two file series, one numbered 1-12 and the other 1-30 held by the Ministry which did not form part of the Chief Executive’s s 12K(4) report.
[44] The Authority referred to Ms Lawson’s concerns about missing documents in
the following way in its decision:23
The appellant has on a number of occasions alleged that she has provided the Ministry with thousands of documents which they have lost or destroyed. We are aware that the Ministry does from time to time lose documents but we do not accept that they lose documents on the scale suggested by the appellant. Furthermore it appears to us that if the information provided to the Authority by the appellant is a reflection of the information she has provided to the Ministry then much of it is of limited or no value in determining the appellant’s claims …
[45] The Authority’s powers of inquiry were considered by MacKenzie J in Campbell v Chief Executive of the Ministry of Social Development, in which it was said that while the Authority has the powers of a Commission of Inquiry, appeals to the Authority are “conducted largely on an adversarial basis” and that “[t]he primary
responsibility for adducing relevant evidence rests with the parties”.24
23 Re SSA46/13, above n 2, at [53].
24 Campbell v Chief Executive of the Ministry of Social Development [2013] NZHC 3381 at [17].
[46] Ms Conway, senior counsel for the Chief Executive in this Court, submitted that the approach taken by MacKenzie J in Campbell was correct and reflected the Court of Appeal’s judgment in Director-General of Social Welfare v W, in which the Court said that the inquisitional powers conferred on the Authority are “facultative” and designed to enable the Authority to carry out its functions.25
[47] I agree in general terms with the approach taken by MacKenzie J in Campbell. That is to say, usually, appeals to the Authority are conducted on an adversarial basis and usually it is the responsibility of the parties to ensure the Authority is provided with the relevant evidence. There are, however, important qualifications to these observations that can be distilled to the following two points.
[48] First, when discharging his duties under s 12K(4) of the Act, the Chief Executive should bear in mind the vulnerability of many applicants and that he, and the Ministry, should “proactively” assist applicants to receive the social welfare assistance to which they are entitled. 26 This requires the Chief Executive to take all necessary steps to ensure the Authority receives all information and material held by the Ministry that is relevant to the its decision.
[49] Second, consistent with New Zealand’s obligations under arts 12 and 13 of the Convention on the Rights of Persons with Disabilities (the Convention),27 the Chief Executive and the Authority should take the necessary steps to ensure that
appellants before the Authority are afforded effective access to justice.28 This
25 Director-General of Social Welfare v W [2005] NZAR 258 (CA) at [11] and [19].
26 Hall v Director-General of Social Welfare [1997] NZFLR 902 (HC) at 912; Taylor v Chief Executive of the Department of Work and Income [2005] NZAR 371 (HC) and Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418.
27 See Ye v Immigration New Zealand [2009] NZSC 76, [2010] 1 NZLR 104 at [24].
28 Convention on the Rights of Persons with Disabilities A/Res/61/106 (2008), arts 12 and 13:
Art 12 Equal recognition before the law
“1. States Parties reaffirm that persons with disabilities have the right to recognition
everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s
obligation compliments the general right to the observance of the principles of natural justice now affirmed by s 27(1) of the New Zealand Bill of Rights Act 1990 and requires the Chief Executive and the Authority to ensure persons in Ms Lawson’s circumstances have their appeals heard and determined by a fair procedure.29 This in turn also requires the Chief Executive and the Authority to ensure that the Authority receives and considers all information and material that is in the Chief Executive’s possession that is relevant to determining an appeal before the Authority. In rare cases this obligation may require the Authority to request
further information from the Chief Executive pursuant to s 12K(5) of the Act or s 4C
of the Commissions of Inquiry Act 1908.
[50] My assessment of the Authority’s powers to seek further information and material substantially reflects the submissions advanced by Mr Fraser. While I agree with most of Mr Fraser’s submissions in support of Ms Lawson’s case in relation to the first question on appeal, ultimately I do not accept the Authority erred in law when, in the circumstances of this case, it did not seek further information from the Chief Executive.
[51] In reaching this conclusion I am mindful that, in posing the first question, the Authority has assumed that its decision not to seek further information from the Chief Executive involved it exercising its discretion. That is not necessarily
correct.30 The decision not to seek further information from the Chief Executive in
circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property”.
Art 13 Access to justice
“1. States Parties shall ensure effective access to justice for persons with disabilities on an
equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
...”
29 R (Osborn) v Parole Board [2014] AC 1115 (SC) and Galo (Patrick) v Bombardier Aerospace
UK [2016] IRLR 703 (NICA).
30 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, Tipping J observed at [32]: “…the fact that [a] case involves factual evaluation and value judgment does not of itself mean the decision is discretionary” and in Re B (a Child) [2013] UKSC 33, [2013] 1 WLR 1911 the Court drew a
circumstances where the Authority had the legal powers to do so may be more accurately described as an exercise of ordinary judgement and therefore more amenable to appellate review than an exercise of discretion.31 It is not, however, necessary for me to decide whether the Authority exercised its discretion or exercised ordinary judgement when deciding not to seek further information from the Chief Executive, because, regardless of how the decision is characterised, it cannot be said to have been legally wrong.
[52] My reason for reaching this conclusion is that if Ms Lawson believed that the Ministry held documents that were relevant to the issues on appeal and which had not been disclosed by the Chief Executive then it was incumbent upon her to tell the Authority, albeit in general terms, what those documents were. That did not happen. Instead, the submissions before the Authority demonstrate that Ms Lawson proceeded on the basis that the Chief Executive should have provided the Authority with everything that the Ministry held on its files relating to her. That was not required. The obligation on the Chief Executive was to ensure that all relevant information and material was placed before the Authority. In turn, the Authority was required to ensure it had all relevant information and material. It could only do so if it was made aware of what information and material it should have that was relevant to the determination of Ms Lawson’s appeal and which had not been provided by the Chief Executive.
[53] In this Court, Ms Lawson spent considerable time explaining what documents should have been before the Authority but she has not been able to identify any document or class of documents which were genuinely relevant to the Authority’s
decision.
distinction between a discretionary determination and one involving compliance or otherwise with an obligation.
31 May v May (1982) 1 NZFLR 165 (CA) at 170: “in considering an appeal [against the exercise of
discretion] an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong”. In Kumar v R [2015] NZCA 460 at [80] the Court of Appeal however held that New Zealand law now takes a more “nuanced approach to appellate review than it once did” and “[e]valuation may require that the appellate court form an opinion based on its own conclusions of fact and degree”. See also Kacem v Bashir, above n 30, at [32].
[54] Accordingly, while I have reservations about the way the first question is framed, I am satisfied the Authority did not err in law when it decided not to seek further information about Ms Lawson’s claimed disability costs from the Chief Executive.
PART IV: SECOND DECISION
[55] There was very little difference between the Authority’s first and second decisions.32 Both decisions concerned the assessments made by the Chief Executive on 23 January 2013 relating to Ms Lawson’s disability costs, backdated to
20 November 2012. The only point of distinction between the first and second
appeals was that the second appeal also concerned the Ministry’s decision on
5 February 2013 to increase Ms Lawson’s disability costs from 20 November 2012
because she had, by that stage, provided verification of her medic alert bracelet costs.
[56] Four questions of law have been posed by the Authority arising from its second decision. For convenience I will refer to those questions as Questions two to five. Those questions are:
Question two:
Did the Authority err in law in determining that it could only consider information available to the Chief Executive at the date of his decisions in January 2013 and February 2013 in assessing the appellant’s disability costs and that changes to the appellant’s costs since that time were not relevant?
Question three:
Did the Authority err in law by failing to exercise its discretion under s 4C of the Commissions of Inquiry Act 1908 to require the appellant’s registered health practitioners to provide a detailed report about her alleged need for iridology, [biometry], osteopathy and massage treatment?
Question four:
Did the Authority err in law in relying on the findings in its early decision in [2013] NZSSAA 96 that the appellant’s costs in relation to AA membership, Diabetes New Zealand membership, ambulance subscription, rental fees and rubbish disposal were not additional costs arising from the appellant’s disability?
32 Re SSA096/13, above n 14.
Question five:
When determining that the allowance of $53.40 per month was sufficient to meet the appellant’s additional communication costs, did the Authority err in law by not considering the costs of communication between the appellant and her medical practitioners in relation to her entitlement under the Social Security Act 1964?
Question two
[57] The first part of this question is whether the Authority erred in law in determining that it could only consider information available to the Chief Executive at the date of his decisions in January 2013 and February 2013 relevant to the period under review. Ms Conway and Mr Fraser agreed this question was framed in an infelicitous manner (my description). That is because, as Ms Conway explained in her comprehensive submissions, the Authority clearly did not confine itself to information available to the Chief Executive at the time his decisions were made in January and February 2013.
[58] A reading of the Authority’s second decision shows that it included references to Ms Lawson’s membership of an ME support group because by the time of the Authority’s decision, Ms Lawson had provided verification that she was incurring those costs as at 20 November 2012.33 The Authority also considered other information that was not available to the Chief Executive at the time he made his decision. Although the information did not alter the Authority’s decision, the information in question was clearly referred to by the Authority in its decision. That information included references to:
(1) Ms Lawson attending her doctor more frequently during 2013;34
(2)prescription charges that were not available to the Chief Executive at the date of his decisions in January and February 2013;35 and
(3)power bill costs that were not available to the Chief Executive at the time he made his decisions.36
33 Re SSA096/13, above n 14, at [69].
[59] Ms Conway suggested that I redraft the second question so as to clearly focus upon whether or not the Authority made an error of law of the kind asked in the second question. Ms Conway suggested the amended question read:
(a) Did the Authority determine it could only consider information available to the Chief Executive at the date of his decisions in January 2013 and February 2013 in assessing the appellant’s disability costs?
(b) If the answer to question (a) is yes, did the Authority err in law?
(c) Did the Authority err in law in determining that changes to the
appellant’s costs since the Chief Executive’s decisions in January
2013 and February 2013 were not relevant?
[60] There is no doubt that the High Court has the power under r 21.12 to amend the Authority’s question.37 I should however, be cautious about doing so because it is for the Authority to state the questions it wishes the Court to answer.38 In the circumstances of this case I doubt whether much will be gained by amending the question, because no matter how the issue is approached, the Authority clearly did not confine itself to the information available to the Chief Executive as at the date of
his decisions in January and February 2013.
[61] Because the first part of the Authority’s question does not reflect its own decision, it is in effect hypothetical and should not be answered. I accordingly decline to answer the first part of the second question.
[62] The second part of the question is whether the Authority erred in law in failing to consider evidence that post-dated the Chief Executive’s decision. For example, the Authority considered the following information had no bearing on the decisions made in January and February 2013:
(a) a letter from a dietician from 8 July 2014;39
(b) a quote for lawn mowing dated 9 July 2014;40
36 Re SSA096/13, above n 14, at [66].
37 High Court Rules 2016, r 21.12.
38 Metin v Chief Executive of the Ministry of Social Development [2016] NZHC 1708 at [18]-[26].
39 Re SSA096/13, above n 14, at [40].
(c) a medical certificate from 2014;41 and
(d) power costs incurred in the second half of 2013.42
[63] Section 12I(2) of the Act provides in “hearing and determining any appeal, the [Authority] shall have the powers, duties, functions, and discretions that the chief executive had in respect of the same matter”. Evidence of a change in circumstances post-dating the time frames considered in the Chief Executive’s decision is not relevant to the matters on appeal. The Authority was right to disregard evidence that had no bearing on the period of review. Accordingly, there was no error of law.
Question three
[64] The third question relates to paragraph [47] of the Authority’s decision in
which the Authority said:43
We would require a detailed report from a registered health professional explaining how the need for these treatments arise from the appellant’s disability, precisely what the therapeutic value is to the appellant and how they could be regarded as essential and not reasonably avoidable before we would be prepared to direct that costs arising from these treatments are essential costs arising from the appellant’s disability and are not reasonably avoidable.
[65] At the Authority’s hearing Ms Lawson’s advocate and her mother accepted that a report from Dr Westraad, Ms Lawson’s general practitioner, would be appropriate. The transcript of the hearing suggests Ms Lawson’s advocate would try to obtain a report from Dr Westraad if Ms Lawson would allow him to do so.
[66] Ms Lawson, however, expressly forbade anyone from obtaining a further report from Dr Westraad. No report was therefore provided from Dr Westraad
between the hearing in May 2014 and the Authority’s decision in November 2014.
41 Re SSA096/13, above n 14, at [59]. A medical certificate from 2013 is also referred to but was insufficient to create a clear picture as to Ms Lawson’s condition and its likely duration as at January 2013.
[67] In relation to this issue, responsibility for ensuring that Dr Westraad could provide the report sought by the Authority rested with Ms Lawson. It was her decision to withhold her consent for Dr Westraad to supply the report sought by the Authority. In these circumstances, it can hardly be suggested that the Authority erred in law by failing to exercise its powers under s 4C of the Commissions of Inquiry Act to compel Dr Westraad to supply the report.
[68] For these reasons, I agree with Ms Conway that the answer to the third
question is “no”.
Question four
[69] The fourth question relates to paragraph [31] of the Authority’s decision in
which it stated:44
Turning to the assessment of her disability costs the appellant seeks assistance in relation to the cost of pet ownership, AA membership, Diabetes New Zealand membership, ambulance subscription, rental fees and rubbish disposal. As we noted in decision [2013] NZSSAA 96 we are not satisfied that these costs can be regarded as additional costs arising from the appellant’s disability and can therefore be treated as disability costs. We do not propose to canvass these matters in detail again.
[70] It is difficult to see how the fourth question actually raises a genuine question of law. It was for the Authority to decide whether or not it had sufficient information before it to depart from the findings it made in relation to these matters in its first decision. This was an issue of fact, not law.
[71] Because I am not satisfied that the fourth question genuinely raises a question of law, I decline to answer that question.
Question five
[72] This question relates to paragraph [41] of the Authority’s decision in which
the Authority found that an allowance of $53.40 per month was sufficient to meet
Ms Lawson’s additional telecommunication costs.
44 Re SSA096/13, above n 14, at [31].
[73] As Ms Conway correctly pointed out, the Authority did in fact consider the costs of Ms Lawson’s communicating with her medical practitioner in its first decision.
[74] Again, Ms Conway suggested that I amend this question in an attempt to clearly identify a question of law.
[75] For the reasons which I have provided in relation to the first part of Question two, I am not prepared to amend the question. The question does not reflect the Authority’s decision and is hypothetical.
[76] I decline to answer the fifth question.
PART V: THIRD DECISION
[77] Two questions have been posed by the Authority arising from its third decision.45 I will refer to those questions as the sixth and seventh questions:
Question six:
Did the Authority err in law in deciding it was not prepared to revisit its decision that the Chief Executive should include the costs associated with swimming twice a week from 20 November 2012 and the assessment of the appellant’s disability costs?
Question seven:
Was there any evidence on which the Authority could base its conclusion that the distance between the appellant’s residence and the Hawera swimming pool was 49.8 km?
[78] Ms Conway’s submissions helpfully set out the context in which the
Authority has asked these questions:46
105.1On 23 January 2013 the Chief Executive assessed Ms Lawson’s disability costs. Swimming costs were not included because Ms Lawson had not provided verification that these costs were regular and ongoing.
45 Re SSA038/14 above n 15.
46 Ms Conway’s submissions, 6 April 2017, at [105] – [106].
105.2Ms Lawson appealed the Chief Executive’s assessment of her disability costs, which the Authority considered in the first and second decisions.
105.3On 30 September 2013, on receipt of appropriate verification, the Chief Executive included the costs of swimming 72 times a year at the Stratford pool (the pool closest to Ms Lawson’s address) in Ms Lawson’s disability costs.
105.4On 22 October 2013, the Chief Executive increased the frequency allowed for swimming to three times weekly.
105.5On 9 December 2013, the Authority issued its first decision, directing that the Chief Executive include costs associated with swimming twice a week at the Hawera pool in Ms Lawson’s disability costs from 20 November 2012. In a direction following the first decision, the Authority confirmed swimming twice a week at the Hawera pool should be included “from 20
November 2012 until the date of [Ms Lawson’s] next annual review”.
105.6 On 13 January 2014, the Chief Executive reviewed Ms
Lawson’s disability costs:
105.6.1Costs of travelling and swimming at the Hawera pool twice weekly were included from 20 November
2012 to 19 November 2013 in accordance with the
Authority’s first decision.
105.6.2Costs of travelling and swimming at the Stratford pool three times weekly were included from 20
November 2013.
105.7On 22 January 2014, Ms Lawson provided the Ministry with a letter from her doctor explaining she needed to use the Hawera pool not the Stratford pool. The Ministry amended Ms Lawson’s swimming allowance from 20 November 2013 accordingly on or around 24 January 2014.
106 Ms Lawson appealed the Ministry’s 13 January 2014 decision.
She argued the costs of swimming three times a week should be included from 1 July 2013, instead of from 20 November 2013
and disputed the Chief Executive’s calculation of the distance
between her home and the Hawera pool. The Authority upheldthe Chief Executive’s decision.
Question six
[79] Ms Conway submitted that the Authority could not be said to have erred in
declining to increase Ms Lawson’s swimming costs to three times a week from
1 July 2013 because there was no evidence to suggest that the allowance should be increased in the way argued for by Ms Lawson.
[80] In my assessment, this is purely a question of fact. It was entirely a matter of fact for the Authority to decide whether or not there was an evidential foundation to support Ms Lawson’s claim. There is no question of law raised in the sixth question that requires determination of this Court.
Question seven
[81] The seventh question raises an issue as to whether or not the Authority erred by relying upon Google Maps in calculating the distance between Ms Lawson’s home and the Hawera pool.
[82] Ms Lawson submits that her claim was based upon the odometer readings in her car when she drove from her home to the pool. Ms Lawson’s argument is that the odometer reading on her car shows the distance involved was slightly over
52 km. The Authority relied upon the analysis of the Chief Executive in its s 12K(4)
report which cited Google Maps as saying the distance was 49.8 km.
[83] While the differences may seem miniscule, the cumulative effect of the
Authority’s decision is important to Ms Lawson.
[84] In his helpful submissions, Mr Fraser pointed to Britton v Police which cautions against relying upon Google Maps.47 He submitted the Authority should not have favoured any “official” assessment of the distance over Ms Lawson’s own experience.48
[85] It is very difficult for me to conclude that the Authority erred as a matter of law in relying on Google Maps. My reason for reaching this conclusion is that the Authority has very broad powers to receive information which may assist it in dealing with matters before the Authority, whether or not the same information
would be strictly admissible as evidence in a Court of law.49
47 Britton v Police HC Auckland CRI-2009-004-16786, 26 February 2010.
48 Citing R (Osborn) v Parole Board, above n 29, at [90].
49 Social Security Act 1964, s 12M(5).
[86] In these circumstances, the Authority appears to have acted in accordance with its statutory authority and cannot be said to have erred in law.
[87] For these reasons I answer the seventh question “no”.
Conclusion
[88] The answer to the first question is that the Authority did not err when it declined to seek further information and material from the Chief Executive. The powers of the Authority to seek further information and material from the Chief Executive are set out in paragraphs [38] to [52] of this decision.
[89] I decline to answer the first part of the second question. I also decline to answer the fourth, fifth and sixth questions.
[90] The answers to the second part of the second question, third and seventh questions are that the Authority did not err in law when taking the steps set out in those questions.
[91] There will be no order for costs.
D B Collins J
Solicitors:
Crown Law Office, Wellington
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