Lawson v Chief Executive of the Ministry of Social Development
[2016] NZHC 910
•5 May 2016
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV-2015-485-423
CIV-2015-485-424
CIV-2015-485-425 [2016] NZHC 910
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 MARIE LAWSON Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 4 April 2016 Counsel:
S J Fraser for appellant
D Soper and R Garden for respondentJudgment:
5 May 2016
RESERVED JUDGMENT OF DOBSON J
LAWSON v CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 910 [5 May
2016]
Contents
Introduction and background .......................................................................................................... [1] The three appeals .............................................................................................................................. [5] Primary appeal – 424 .......................................................................................................................[11] Question 1 – definition of cash assets .......................................................................................... [16] Questions 2 and 3 – Special Benefits............................................................................................ [24] Question 4 – Training Incentive Allowance.................................................................................. [27] Question 5 – storage costs............................................................................................................ [53] Question 6 – calculation of invalid’s benefit ................................................................................ [65] Question 7 – Special Needs Grants .............................................................................................. [71] Appeal 423 ....................................................................................................................................... [77] Question 1 – interpretation of “emergency” ................................................................................ [80] Question 2 –does AA membership constitute an emergency situation? ........................................ [85] Questions on alternative arguments regarding AA membership ................................................ [102] Appeal 425 ..................................................................................................................................... [107] Question 1 – interpretation of “emergency” ...............................................................................[112] Question 2 – does the health of appellant’s father constitute an emergency situation? ..............[114] Question 3 – two Special Needs Grant applications for same purpose? .....................................[117]
A concern over the questions posed ............................................................................................. [121] Summary ........................................................................................................................................ [126] Costs ............................................................................................................................................... [127]
Introduction and background
[1] This judgment determines three appeals brought by way of case stated against determinations of the Social Security Appeal Authority (the Authority).
[2] The appellant, who is 41 years of age, suffers from chronic fatigue syndrome, irritable bowel syndrome, chemical sensitivity, skin disorders and related issues. She became unwell shortly after her 21st birthday. The appellant was granted a sickness benefit in 1998, at which point she ceased employment. Subsequently her benefit was transformed into an invalid’s benefit.
[3] The appellant’s dealings with the Ministry of Social Development (MSD) have included numerous applications for allowances, additional benefits and grants. She has been a serial challenger of decisions made in the name of the Chief Executive of MSD when various applications have not been granted in the terms
sought by her. The process is to apply for a review by the Benefits Review Committee operated within MSD pursuant to s 10A of the Social Security Act 1964 (the Act), and thereafter appeal to the Authority pursuant to s 125 of the Act.
[4] Any further appeal from the Authority is limited to questions of law,1 with the Authority operating as a gatekeeper in identifying tenable and genuine questions of law and defining them for reference to the Court. I return at the end of this judgment to make observations as to the relative rigour that should be applied by the Authority in recognising questions of law that are appropriate for what usually constitutes a third appeal.
The three appeals
[5] The principal appeal, CIV-2015-485-424 (424), raises purported questions of law arising out of a decision of the Authority issued on 20 October 2014.2 In that decision the Authority:
· assessed the appellant’s disability costs;
·upheld the Chief Executive’s decision to decline the appellant’s application for a Training Incentive Allowance;
· accepted the Chief Executive’s recalculation of an abatement of benefit;
· calculated the scope of accommodation costs recognised for the appellant’s
accommodation supplement; and
· quantified overpayments of Special Benefit and Special Needs Grants.
[6] On 29 May 2015, the Authority stated a case for the appeal. The case stated poses seven questions of law for the opinion of the Court.
[7] The second appeal, CIV-2015-485-423 (423), relates to an earlier decision of the Authority, issued on 1 July 2014.3 The Authority dismissed an appeal from a decision of the Chief Executive to decline the appellant’s request for financial assistance to pay for her membership of the Automobile Association (AA). The case stated by the Authority, also dated 29 May 2015, posed three principal questions characterised as ones of law. The questions addressed what constituted an
emergency under the Special Needs Grant programme, and the grounds for refusing to make an advance payment of benefit for the purposes of the appellant maintaining her AA membership. The relevant request for assistance had been made in August
2013, although the appellant had sought the cost of AA membership in earlier years, but had consistently been declined.
[8] The third appeal, CIV-2015-485-425 (425), relates to the appellant’s application for an advance of benefit to pay for petrol to travel to see her ill father. The Authority’s decision on that appeal was also issued on 1 July 2014,4 with the case stated also being issued on 29 May 2015. The questions of law posed addressed whether the Authority erred in its interpretation of the concept of an emergency for the purposes of the Special Needs Grant programme, and in particular the concept of
an emergency situation as addressed in cl 12 of the Special Needs Grant programme.
[9] The appellant initially pursued the appeals to this Court acting on her own behalf and with the assistance of a beneficiary advocate, Mr Graham Howell. Mr Fraser accepted instructions to appear on the appeals at relatively short notice, and a truncated timetable for exchange of submissions was agreed to accommodate him.
[10] One consequence of Mr Fraser’s recent instructions was a request, conveyed in his submissions that were filed the working week before the hearing, to amend some of the questions of law as defined by the Authority in the cases stated. Amendment was opposed by the respondent. I explain the extent of amendment requested on behalf of the appellant in the context of each of the appeals as they are considered.
Primary appeal – 424
[11] The relevant factual narrative is adequately summarised at the outset of the
Authority’s decision under appeal:
[5] Despite being granted a Sickness Benefit the appellant says that it was not until 2003 that she became aware of the availability of Disability Allowance. Even then she was not made aware of all of the costs which could be considered to be disability costs to be included in the assessment of Disability Allowance and Special Benefit.
[6] The appellant says she became aware of all of the items which could be regarded as disability costs arising from a disability in 2008 when she was given a list from the Ministry’s manuals. This led to a claim for backdated Disability Allowance and Special Benefit. Originally this claim was for backdating to 10 December 2001. The Benefits Review Committee decision records that she sought $150 a week for Special Benefit from 10 December
2001 to 10 January 2006 and $156 a week thereafter.
[7] The Benefits Review Committee endeavoured to take a pragmatic approach to the appellant’s situation and directed that Disability Allowance be reviewed using a figure of $53.75 per week which the Committee believed was the total of the appellant’s accepted disability costs at that time, from 10 December 1998 to the date of its decision. The figure of $53.75 was the maximum rate of Disability Allowance that could be paid from 1 April
2008 to 1 April 2009. In effect the appellant has now been paid the maximum amount of Disability Allowance from 10 December 1998. The
Committee also directed that the appellant’s eligibility for Special Benefit be
assessed from 10 December 1998 using disability costs of $53.75 and directed that she be paid at the deficiency rate. The only other allowable cost to be included in the assessment of Special Benefit apart from her disability costs were rent and car loan payments.
[8] As a result of the Benefits Review Committee decision the appellant was paid arrears of Disability Allowance of $16,022.49 and Special Benefit of $1,363.58. Payment of the arrears was made in December 2008 and
12 June 2009.
[9] The appellant appealed against the Benefits Review Committee decision on the basis that she did not consider the assessment of her disability costs to be correct. She alleged that her disability costs were greater than the amount of $53.75 per week and this impacted on the assessment of her entitlement to Special Benefit.
[10] It is also relevant to note that as part of the appellant’s claims against the Ministry in 2008 and 2009 it was accepted that the appellant ought to have received Invalid’s Benefit when she was first granted Sickness Benefit. She received a back payment of some $6,750.30 in respect of Invalid’s Benefit from December 1998 until the grant of Invalid’s Benefit to her in
2003.
[12] The appellant appealed against these determinations in 2009. However, at that time the Authority was informed that the appellant was facing charges of benefit fraud and adjourned the appeal until the criminal proceedings were resolved. In finding those charges proven, the District Court found that the appellant had owned Bonus Bonds in the period from July 1998 to April 2010. She unsuccessfully pursued an appeal from those convictions to the Court of Appeal and also unsuccessfully sought leave to further appeal to the Supreme Court.
[13] The Authority resumed consideration of her appeals in hearings on 27 and
28 May 2014.
[14] The Authority found that the appellant had held Bonus Bonds from 1998 onwards, starting with $1,000. By October 2009, she had Bonds valued at $21,150. The Authority accepted that many of the Bonds purchased in 2008 and 2009 would have been funded from back payments of benefits paid to her. It rejected her claim that earlier Bonds had also been purchased with back payments. The cash asset limit throughout the period gradually increased from $739.40 in 1999 to $921.08 in 2008 and the Authority found that the amount of the appellant’s Bonds exceeded the cash asset limit throughout the entire period.
[15] The Authority accepted that the appellant generally had debts that were greater in total than the value of her Bonus Bonds, at least in the years 2002 to 2006. However, it determined that “cash assets” did not mean “net cash assets”. The Authority was not satisfied that the Chief Executive should have granted the Special Benefit at a rate greater than the rate actually paid, nor should the Benefit Review Committee have directed the payment of arrears. The outcome was that the Chief Executive was correct to have established an overpayment for the period from
4 January 2001 to 5 November 2009. However, the Authority directed that no steps should be taken to recover that debt.
Question 1 – definition of cash assets
[16] The first question posed was:
Did the Authority err in law in finding the definition of “cash assets” in the Ministerial direction relating to Special Benefit did not require the deduction of the appellant’s debts from her cash assets to ascertain her “cash assets”?
[17] The first argument advanced was that the assessment of assets ought to be approached consistently with a Ministerial Directive on the definition of cash assets that recognised, in relation to property or land held by a claimant, that it was the net equity that was to be relevantly quantified. Mr Fraser argued that all forms of cash assets ought also to be netted off against current liabilities.
[18] There are compelling reasons to distinguish between cash assets and the net extent of any equity in property owned. The component of the value of a property to which a secured creditor could lay claim in priority to a claimant for a Special Benefit would never be available to the claimant, so it would be unrealistic to disentitle a person from consideration for a Special Benefit by reference to assets that are, in the practical sense, not owned by the claimant.
[19] In contrast, cash assets such as Bonus Bonds represent the unencumbered property of the claimant to be applied as they please. Cash assets such as Bonus Bonds were available to the appellant and, in the absence of some pledge enforceable by a creditor over the asset, could reasonably be expected to be applied before she was considered for a Special Benefit.
[20] A consistent approach was adopted in the context of determining cash assets of an applicant for an accommodation supplement, in Schoonderwoerd v Chief Executive of the Department of Work and Income New Zealand. O’Regan J held that the definition of cash assets in s 61E of the Act did not allow for the deduction of debts owed by a claimant.5 I agree with the Authority’s adoption of that reasoning from the somewhat different context of s 61E to the assessment required for considering qualification for a Special Benefit.
[21] A second argument advanced by Mr Fraser was that the Bonus Bonds held by the appellant ought not to have been treated as cash assets because they came within
5 Schoonderwoerd v Chief Executive of the Department of Work and Income New Zealand
HC Auckland CIV-2002-404-117, 16 June 2003.
an exception to categories of cash assets as recognised in reg 15 of the Social
Security (Income and Cash Assets Exemptions) Regulations 2011. That specifies:
15 Payments declared not to be cash assets
(1) This subclause applies to any compensation or ex gratia payment made—
(a) by the Crown to a person; and
(b) in recognition of harm or in respect of a claim of harm.
(2) Any payment to which subclause (1) applies is not cash assets for the purposes of the Act.
[22] Mr Fraser’s argument was that the Bonus Bonds had been purchased out of compensation paid to the appellant in respect of a claim of harm for grossly underpaying her benefits for almost a decade.
[23] However, that characterisation does not take the Bonus Bonds owned throughout the relevant period outside of the assets to be considered as cash assets for assessment purposes. The requirements in reg 15(1)(a) and (b) are cumulative and a top-up payment for benefit entitlements perceived to have been underpaid in prior periods cannot be characterised as payments in recognition of harm or in respect of a claim of harm. That regulation contemplates ex gratia payments such as have been made to beneficiaries to settle claims of sexual and physical abuse whilst in the care of government or other agencies.
Questions 2 and 3 – Special Benefits
[24] The second and third questions posed were dependent on the appellant being successful in the challenge raised by the first question. They were:
As a matter of law did the Authority err in concluding that discretion should not have been exercised to grant the appellant a Special Benefit in the period from December 1998 to 5 November 2008?
As a matter of law did the Authority err in concluding that the Chief Executive was entitled to cancel the grant of Special Benefit made to the appellant in respect of the period 4 January 2001 to 5 November 2009?
[25] The arguments for the appellant on these questions depended on a finding that the Bonus Bonds held throughout the relevant period should not have been
included in her cash assets. I have rejected that proposition. The consequence is that the answer to questions 2 and 3 is that the Authority did not err in the respects contended.
[26] I note further that because the Authority directed that no steps were to be taken to recover the overpayment, there is very little prospect of these issues having a material impact on the appellant’s position. It was suggested for the appellant that reversal of the findings about her disentitlement to a Special Benefit would have consequential impacts on assessments for other benefits, but such differences were not demonstrated to be material. In any event, the Authority was correct on the primary proposition that the Bonus Bonds were to be included in assessing the appellant’s cash assets.
Question 4 – Training Incentive Allowance
[27] The fourth question posed by the Authority was in the following terms:
Was there any evidence on which the Authority could reach its finding that it was not satisfied that the courses for which the appellant sought a Training Incentive Allowance meet the requirement of being the most effective means of securing the appellant’s future employment and as a result were not courses for which the Chief Executive was able to provide an allowance under the Training Incentive Allowance programme in force at the time of the appellant’s applications?
[28] This was one of a number of the questions posed by the Authority that was expressed in terms of whether there was any evidence for the Authority to make a particular finding that it did. Subsequent to Mr Fraser being instructed in the matter, he raised a concern that questions on these terms created an unfairly difficult hurdle for an appellant to surmount. He submitted that it precluded an argument that, despite the existence of some evidence, the preponderance of evidence was contrary to the finding made by the Authority. Mr Fraser requested that the initial proposition should be replaced with a more balanced question as to whether the Authority erred in law in reaching its finding that it was not satisfied on the issue in question.
[29] The Supreme Court has recognised that making out an absence of any evidence to support a finding poses a very high hurdle.6 Mr Fraser argued that the Court has power to amend the questions in a case, citing r 21.12 of the High Court Rules. That provides:
21.12 Power to amend case
(1) The court may send a case back to the tribunal for amendment—
(a) to clarify the question of law or fact (or both) on which the opinion of the court is sought; or
(b) to provide any further information necessary to enable the court to dispose of the questions in the case stated.
(2) The court may amend the case at the hearing.
[30] I have real doubts that reliance on that rule can be justified where the amendment proposed is to recast the question of law from the formula drafted by the Authority to a formulation considered to be preferable by an appellant. I accept that the appellant was not represented at the stage of the proceedings when the questions were settled. However, to the extent the Authority accepted the prospect of error giving rise to a question of law in the terms it expressed, the Court should be reluctant to re-define the scope of the question in circumstances such as the present.
[31] In any event on this proposed amendment, a concession volunteered at the hearing by Mr Soper has overtaken Mr Fraser’s initiative to recast the question.
[32] Under s 124(1)(d) of the Act, a welfare programme for special assistance was created, known as the Training Incentive Allowance programme. The form of the programme promulgated in November 1998 had the objective of providing financial assistance to people receiving certain benefits to enable them to undertake employment-related training that would:
(a) enhance and improve their work skills; and
(b) thereby increase their prospects of obtaining full-time employment or part-time work, and gaining independence from the benefit system.
[33] The eligibility for the allowances was set out in paras 5.1 of the Gazette
Notice, in the following terms:7
5.1 Eligibility
5.1.1. For the purpose of assisting an applicant to become independent of a benefit for his or her financial support, the chief executive may grant a Training Incentive Allowance to any applicant who-
(a) Is in receipt, in his or her own right, of-
(i) A domestic purposes benefit, an invalid’s benefit, or
a widow’s benefit; or
(ii) The emergency benefit known as the emergency maintenance allowance; and
(b) Is enrolled (or is enrolled subject to the payment of tuition fees) in an employment related training course offered by a course provider-
(i) Accredited by the NZQA; or
(ii) That is a tertiary institution or a secondary school.
[34] There is a restriction on payment of this allowance that was presumed to be relevant:
5.2. Restrictions
5.2.1. If the applicant is a work-tested beneficiary, an allowance may be granted only if-
(a) The chief executive considers the course the applicant intends to undertake is the most effective means of securing the applicant’s future employment; or [other restrictions having no present relevance]. (emphasis added)
[35] It appears that the appellant had made application for a Training Incentive Allowance for sums of $3,135.20, or possibly $6,135.20, in 2000 and 2001. The courses involved were:
· a course offered by the New Zealand Pony Club as part of its equestrian coaches’ training programme;
· a course from Massey University as a component of a teacher aid course;
and
· an extra-mural paper from Massey University on equine nutrition and health.
[36] The Authority upheld the rejection of the various components of these applications. It reconsidered the appellant’s eligibility as if the restriction in para 5.2.1(a) applied, namely that the intended course had to be considered the most effective means of securing the applicant’s future employment. Mr Soper volunteered at the hearing that this approach involved an error of law because the appellant was not in receipt of a work-tested benefit. Consequently, the cited reason for upholding the Chief Executive was wrong.
[37] Acknowledging the existence of an error of law other than that raised by the appellant, Mr Soper submitted that it was open to the Court on the appeal on questions of law to find that the Authority would have made the same decision without relying on para 5.2.1(a). An alternative resolution would be to recognise the error of law and direct reconsideration by the Authority on relevant lawful grounds.
[38] I am reluctant to send the matter back. Mr Fraser did not resist the option of my considering the substantive outcome on this aspect of the appeal, independently of the irrelevant ground relied on by the Authority.
[39] The Authority considered that a decision-maker would not conclude that the appellant would be likely to obtain part-time or full-time employment as a result of completing the Pony Club course, given the extent of her disabilities. The Authority did note that this course was offered by an organisation that was neither accredited by the New Zealand Qualifications Authority, nor a tertiary institution or secondary school, which also took such courses outside those for which the allowance might be available.
[40] As to the teacher aid course, the Authority noted evidence from the appellant that ultimately her career as a teacher aid had been thwarted because of convictions
for assault in 1999 and trespass in 2000. The appellant has acknowledged that the principal of the school where she was working in 1999 dismissed her on the basis of the assault conviction.
[41] As to the claim for the costs of the equine nutrition extra-mural paper from Massey University, this was a course offered by a tertiary provider and therefore met that criterion. However, the Authority was also not satisfied that this course was one likely to result in the appellant obtaining part-time or full-time employment, therefore reducing her reliance on the benefit system. The Authority therefore determined it was not appropriate to grant her the Training Incentive Allowance for that course.
[42] With the exception of the Pony Club course, where the lack of approval of the course provider was a valid ground for exclusion, the remaining components of the Authority’s decision on this aspect of the appeal relied, at least in part, on the restriction in para 5.2.1(a), namely that the courses did not represent the most effective means of the appellant securing her future employment. As I have noted, Mr Soper accepted that reliance on that restriction represented an error of law by the Authority because the restriction only applied to applicants who were work-tested beneficiaries.
[43] Despite the concession on behalf of the respondent, Mr Fraser argued that I should still consider the separate ground of challenge he had raised to this part of the Authority’s finding. His argument was that the Authority’s reliance on the extent of the appellant’s disabilities amounted to unlawful discrimination, contrary to the appellant’s right to freedom from discrimination in s 19 of the New Zealand Bill of Rights Act 1990 (BORA). Disability is a prohibited ground of discrimination under s 21(1)(h) of the Human Rights Act 1993 and, so far as discrimination in employment is concerned, s 22 of that Act applies the prohibitions on discrimination to the conduct of employers. Section 29 acknowledges exceptions in relation to the prohibition on discrimination on the ground of disability in the employment context, including:
29 Further exceptions in relation to disability
(1) Nothing in section 22 shall prevent different treatment based on disability where—
…
(b) the environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform those duties only with a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take that risk.
…
[44] I am reluctant to determine this criticism of the Authority definitively, when it was not argued exhaustively and the criticism is no longer material to the outcome of this aspect of the appeal. The analysis of the alleged error of law is further complicated by Mr Fraser’s criticism that the Authority also made a relevant error of fact. This was in the assumption made by the Authority that working with horses would require the appellant to be able to ride a horse, or at least be sufficiently robust to handle horses.
[45] The Authority had evidence that the appellant had to give up riding horses in about early 2003, and that on the last occasion she had ridden she should not have done so. The appellant had also acknowledged that her chronic fatigue syndrome meant she was not able to manage with her own horse. The prospects of employment remain relevant to an assessment of the entitlement to a benefit or allowance because of the objective of the scheme in (b) cited in [32] above. Therefore the limitations on an applicant’s ability to perform relevant types of work must be relevant. Exceptions such as that in s 29(1)(b) of the Human Rights Act exemplify the practical recognition that the prohibition on discrimination by an employer on grounds of disability cannot prevail where the nature of a person’s disability is directly relevant to their capacity to perform the required range of tasks for the job in question.
[46] After exchanges during argument, I took Mr Fraser to be criticising the manner in which the Authority went straight to the existence of a disability as a disentitling feature, rather than asserting the broader proposition that it would be
unlawful for the Chief Executive to have regard to the impact of the disability in any circumstances pertaining to possible employment in the field to which the training programme related.
[47] I incline to the view that, had the prospects of finding work been relevant, the limitations on the appellant’s ability to perform the type of work for which the teacher aid and/or equine nutrition courses would help qualify her would indeed be a relevant consideration. I do not accept that it would be rendered unlawful to have regard to it, by the provisions in BORA or the Human Rights Act.
[48] Putting to one side the Authority’s reliance on the courses not constituting the most effective means of the appellant securing future employment, the analysis would be whether the Chief Executive could reasonably come to the view that payment of the Training Incentive Allowance would assist the appellant to become independent of her benefit, on the primary ground for eligibility in para 5.1.1. On the appellant’s own evidence before the Authority, the prospect of becoming financially independent as a teacher aid had been blocked by her convictions for assault and trespass. Given that situation, it is difficult to acknowledge any reasonable basis on which the Chief Executive could come to the view that assisting the appellant with courses to better qualify her as a teacher aid would indeed enable her to become independent of her benefit.
[49] I note that the Authority also had concerns that the appellant had not completed the courses for which she claimed the fees. That would indicate some lack of resolve to pursue any employment opportunities that completion of the courses might create. I am therefore satisfied that, despite the error, the outcome was one that the Authority was entitled to come to.
[50] As to the claim for the course costs of $462 for the extra-mural Massey University paper on equine nutrition, there was scope for the Authority’s view that horse-related employment would be physically demanding and that it was questionable that the appellant would be suitable for it, given her physical state of health. Putting aside the restriction that required the appellant to establish it was the most effective means of gaining employment, the lower threshold of whether
completion of such a course was likely to assist her to become independent remains. The appellant may well be right in criticising the Authority’s factual finding that equine related employment necessarily involved riding horses. However, in the absence of clear evidence to the contrary, it is a matter of common sense that being employed around horses would inevitably involve a greater or lesser degree of handling the animals.
[51] The appellant acknowledged, in evidence before the Authority, that she was unable to care for a horse, and it is inevitable that a sufficiently robust state of physical health of a prospective employee would be an important consideration for an employer. Accordingly, the Chief Executive could not reasonably come to the view that paying for such a course would indeed assist in helping the appellant become financially independent.
[52] Accordingly, all components of the challenge to the refusal to pay a Training
Incentive Allowance are dismissed.
Question 5 – storage costs
[53] The fifth question in this appeal was:
As a matter of law did the Authority err in finding the appellant’s alleged storage costs did not constitute accommodation costs pursuant to s 61E and s 61EA of the Social Security Act 1964?
[54] The appellant has claimed an accommodation supplement from time to time. In the period between June and September 2002, she claims that accommodation costs were actually $125 per week, when her accommodation supplement was calculated on the basis of $100 per week. The Authority observed that the appellant had provided inconsistent explanations over time as to what the extent of her accommodation costs had been. By the time of the hearing in May 2014, she claimed that the additional rent (between $100 and $125 per week) related to storage costs for furniture at a property that she had previously rented.
[55] The Authority excluded storage costs on the basis that it did not reflect the costs of a place that the appellant had occupied as a home. The Authority also
expressed doubt about the quality of evidence that the appellant had in fact incurred an additional $25 per week for storage.
[56] On appeal, it was argued that the Authority had adopted an unduly narrow interpretation of what constituted accommodation costs, and that an additional charge for storage of personal items ought to be treated as a component of accommodation costs.
[57] Mr Fraser cited the definition of “premises” from the Residential Tenancies
Act 1986 in the following terms:
2 Interpretation
(1) In this Act, unless the context otherwise requires,—
premises includes (other than in relation to a boarding house tenancy, in which case the definition in section 66B applies)—
(a) any part of any premises; and
(b) any land and appurtenances, other than facilities; and
(c) any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land
[58] Mr Fraser argued that storage costs are an appurtenance to accommodation so that such costs ought to be covered.
[59] The Authority adopted what I consider to be the correct approach to the scope of accommodation costs. The definition in s 61E of the Act of “premises” to which the accommodation supplement can apply is “the place that he or she occupies as a home”.
[60] Storage facilities cannot be brought within the concept of a home occupied by a claimant.
[61] The respondent cited the observation of Gendall J in B v The Chief Executive of the Ministry of Social Development to the effect that:8
8 B v The Chief Executive of the Ministry of Social Development HC Wellington CIV-2009-485-
1297, 22 February 2010 at [32].
To occupy or live in a home involves some physical possession or degree of permanence at some time with an intention to continue with that physical possession …
[62] Although in a somewhat different context, that approach sensibly confines the concept of accommodation to premises occupied as a home, namely where the person resides.
[63] The definition of “premises” from the Residential Tenancies Act is not helpful as that arises where the statutory purpose is to regulate the terms on which dealings between landlords and tenants are to occur. In that statutory context, an extensive approach to the nature of rented properties that would be brought under the statutory regime is appropriate.
[64] Accordingly, there was no error by the Authority in relation to storage costs.
Question 6 – calculation of invalid’s benefit
[65] The sixth question was posed by the Authority in the following terms:
Did the Authority err in law in accepting that the Ministry’s revised calculation of the abatement of the appellant’s invalid’s benefit for the period
2004–2005 amounting to an underpayment to the appellant of $18 was correct?
[66] At an earlier stage of the appeal before the Authority, the appellant had complained that the abatement of benefit between 2004 and 2005 was incorrect. The appellant had claimed a $338 error.
[67] During the 2014 hearing, MSD conceded there may have been an incorrect abatement at the end of 2004 and that it would review the matter. It then reported back to the Authority that the appellant had been short-paid $6 per week for three weeks in late 2004 and accordingly paid a further $18 to the appellant. The Authority reported in its decision that it had received no comment from or on behalf of the appellant to the extent of error acknowledged by MSD. The Authority therefore accepted MSD’s new assessment.
[68] The appellant now criticises the Authority for not checking how MSD came to the revised calculation. She also complains that she was not given an opportunity to review the revised calculation. Mr Fraser submitted that this matter ought to be sent back to the Authority.
[69] The appellant’s criticism on this point is not sufficient to dent the reasonableness of the Authority’s approach recorded in its decision, namely that MSD’s revised assessment had not drawn any comment on behalf of the appellant. Proportionality must apply in revisiting matters of detail such as this. I find that the process before the Authority would have included an opportunity for the appellant to challenge any inadequacy in the $18 re-assessment acknowledged by MSD, there being a reasonable onus on her to articulate why that re-assessment was wrong. There can be no basis for attributing an obligation to the Authority to initiate its own audit on the point.
[70] Accordingly, no error of law can be made out on this question.
Question 7 – Special Needs Grants
[71] The seventh question in the main appeal is:
Did the Authority err in law in determining that the Chief Executive was entitled to make Special Needs Grants recoverable?
[72] This challenge relates back to the finding on the first question that Bonus Bonds were correctly characterised as cash assets. The Chief Executive has no discretion to make any Special Needs Grant if the applicant has cash assets in excess of the specified limit. The appellant was paid a Special Needs Grant between May
2003 and November 2009. At all times, she had assets (specifically Bonus Bonds)
that were in excess of the cash asset limit.
[73] The position is abundantly clear on the terms of the legislation and appropriate rules, and leaves no scope for tenable argument.9
9 Compare Little v Chief Executive of the Ministry of Social Development [2015] NZHC 1744 at
[4] and [5].
[74] The appellant raises two arguments, both of which are untenable. First she relies on her arguments on the first question that the Bonus Bonds she held ought to have been excluded from the calculation of cash assets. That is wrong.
[75] Secondly, she argues that the Authority acted inconsistently in directing MSD not to recover the Special Benefit to which it found she was not entitled, but directing recovery of the payments for Special Needs Grants where the appellant was not entitled to them. That is not an inconsistency that can constitute an error of law. The circumstances of over-claiming were distinguishable and it was within the reasonable exercise of the Authority’s discretion to make directions to the opposite effect when dealing with the appellant’s predicament on each of them.
[76] The conclusion on the primary appeal 424 is therefore all questions except for question 4 are answered no. The error of law acknowledged on behalf of the respondent in relation to question 4 does not entitle the appellant to relief. I am satisfied that the same outcome would have occurred if the Authority had not had regard to the irrelevant consideration that it did.
Appeal 423
[77] The issue in this appeal was the Chief Executive’s refusal to fund the appellant’s renewal of her membership of the AA. The Chief Executive’s decision to decline the appellant’s request for financial assistance had been upheld by a Benefits Review Committee.
[78] The Authority recognised two possible grounds on which the appellant might receive financial assistance: first, by means of a Special Needs Grant, or secondly by an advance payment of her benefit.
[79] The Special Needs Grant programme provides for both recoverable and non- recoverable assistance to be paid to beneficiaries to meet immediate needs in emergency situations. The extent of such situations is set out in Part 4 of the programme, and does not include any specific provision for assistance with AA membership costs. Under cl 14 of the programme, the Chief Executive may make a grant towards the cost of any item or service if the Chief Executive considers that
without that item or service the applicant would suffer serious hardship. To qualify, the Chief Executive must be satisfied that an emergency situation existed.
Question 1 – interpretation of “emergency”
[80] The first question of law posed on the case stated was:
Did the Authority err in its interpretation of the concept of “emergency”
under the Special Needs Grant programme?
[81] The criticism in this regard was of the Authority resorting to a dictionary definition of “emergency” rather than confining itself to an analysis in terms of cl 12.2 of the Ministerial Directive for Special Needs Grants. That clause specified:
12.2In deciding if an emergency situation exists, the chief executive must have regard to the following matters-
(a) whether the situation was unforeseen;
(b) if the situation could have been foreseen or predicted, whether the Applicant could have reasonably been expected to have made provision in advance in order to meet the need:
(c) the extent to which not making a Grant would- (i) worsen the Applicant’s position; or
(ii) increase or create any risk to the life or welfare of the Applicant or the Applicant’s spouse or partner or dependent children; or
(iii) cause serious hardship to the Applicant, or the
Applicant’s spouse or partner or dependent children.
[82] In assessing whether the request qualified, the Authority approved the Chief Executive’s submission that the definition of the word from the Concise Oxford Dictionary, 10th edition should apply, namely:
A serious, unexpected and potentially dangerous situation requiring immediate action.
[83] The appellant argued that given the comprehensive list of criteria that might be recognised as an emergency in cl 12.2, it was unnecessary and an error of law for the Authority to place reliance on a dictionary definition. The Court of Appeal has approved resort to a dictionary definition in this context. In Foster v Chief Executive
of the Ministry of Social Development, no error was found to arise in giving the word
“emergency” an ordinary dictionary meaning. The Court of Appeal observed:10
It is common ground that Mr Foster had to show his case came within cl 12 and cl 14 of the SNG programme. This meant he had to bring himself within the “emergency” situation and in particular, to show both “special circumstances” and “serious hardship”. The notion of “emergency” has to be given some meaning. The Authority gave “emergency” its ordinary dictionary meaning. No issue can be taken with that approach. On that approach it was plainly open for the Authority and the High Court to conclude that Mr Foster’s situation, though difficult, did not meet that threshold.
[84] The list of circumstances in cl 12.2 is not a definition of “emergency”, but rather a range of circumstances in which an emergency might arise. Nor is there any inconsistency between adopting the approach suggested by cl 12.2 and applying it to a dictionary definition of what constitutes an emergency. The answer to the first question is no.
Question 2 –does AA membership constitute an emergency situation?
[85] The second question posed by the Authority was:
Was there any evidence on which the Authority could base its conclusion that in the circumstances of the appellant’s case there was no emergency situation for the purpose of clause 12 of the Special Needs Grant programme?
[86] This is another of the questions on which Mr Fraser sought leave to alter the terms of the question, to ask whether the Authority erred in law in reaching that conclusion.
[87] On whichever formulation the question is considered, the answer is inevitably against the appellant.
[88] The Authority acknowledged that the appellant lives in a rural area and is dependent on her motor vehicle for transport. At the time of the hearing in 2014, she was using a 1999 Hyundai Lantra that she had purchased in 2006. It is reasonable to
assume that a vehicle of that age may well have mechanical problems from time to
10 Foster v Chief Executive of the Ministry of Social Development [2009] NZCA 602 at [15].
time. In the event of a breakdown, without AA membership, the appellant would have to engage the services of a local garage and might be vulnerable to whatever limits there were on the availability of mechanical assistance. If she was an AA member, it would provide assurance to her that mechanical repair services would be procured, and in some circumstances would reduce the cost of effecting repairs to her car. In that sense, membership of the AA is a form of insurance against the prospect of not being able to obtain prompt assistance with mechanical repairs, at a reasonable cost.
[89] MSD’s report to the Authority under s 12K(4)(e) of the Act advising on matters including the background to the appeal noted that in 2012 the appellant had sought the cost of AA membership to be included under her disability allowance. Then in 2013 she had applied again. The amount sought was the standard AA membership of $59.25, together with a further $49 subscription fee to an AA publication.
[90] Membership of the AA for an applicant who is medically dependent on transport by private car cannot constitute an emergency. The expenditure is neither unforeseen nor unexpected. When viewed as somewhat akin to an insurance premium, it is a payment made to avoid a difficulty if a subsequent emergency occurs, rather than responding to an emergency.
[91] The short answer to the question posed is that there was clearly evidence on which the Authority could base its conclusion that there was no emergency situation for the appellant requiring the payment of an AA membership.
[92] If the question was posed in the alternative formulation of whether that conclusion involved an error of law, it would allow argument of Mr Fraser’s point that the Authority’s assessment had failed to take into account the Convention of the Rights of Persons with Disabilities. That is an international convention to which New Zealand is a signatory and Article 9 focuses on accessibility. This aspirational commitment is in the following terms:
Article 9
Accessibility
1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
…
[93] Resort to international obligations of this type may influence the Court’s interpretation if there is some genuine ambiguity. That is not the case here. It would misapply the purpose and context of a provision such as Article 9 if it were relied on to create an obligation for the Chief Executive to fund AA membership when it otherwise so clearly falls outside the relevant criteria.
[94] Mr Fraser also argued that the commitment in Article 9 should have influenced the Chief Executive’s exercise of discretion. However, a discretion was only triggered if the appellant is right in criticising the interpretation of “emergency”. That argument has failed. There is no basis for broadening the definition of “emergency” because of the importance (bolstered by Article 9 of the convention) that should be attributed to providing transportation for disabled persons living in a rural area.
[95] The appellant claimed, as an alternative, that assistance to fund her AA membership could also have been provided by way of an advance payment of her benefit. Advance payment of benefits is provided for in s 82(6) of the Act, and the Chief Executive’s discretion in this regard is provided for in a Ministerial Directive. The Chief Executive has to be satisfied that an advance would best meet the particular immediate needs of the beneficiary. The Ministerial Directive defines “particular immediate need” as meaning a particular and immediate need for an essential item or service.
[96] The Authority’s decision accurately paraphrased the relevant content of cls 2 and 3 of the Ministerial Directive in the following terms:11
[19] Clause 2 of the Ministerial Directive gives guidance as to how a particular immediate need is to be identified and in particular refers to the effect on the beneficiary if the need is not met. The Chief Executive must also have regard to the beneficiary’s ability to meet the need from her own resources.
[20] Clause 3 of the Directive provides guidance in determining whether an advance would best meet the beneficiary’s particular immediate need. The Chief Executive must have regard to the assistance available to the beneficiary from other sources, the beneficiary’s existing level of debt and the ability of the beneficiary to meet any repayments. Any other matters put forward by the beneficiary to justify the advance can be considered.
The Authority assessed three factual circumstances relevant to these criteria.
[97] As to the effect on the beneficiary if the need was not met, it found that the appellant would be left in the same position as all motorists who are not members of the AA, namely that without help from the AA she would have to contact the nearest garage for assistance. The Authority assumed that may constitute a more expensive option for the appellant. If that occurred, the appellant may need further assistance from MSD to meet that need for which an application could be made at the time.
[98] Secondly, it considered when the effect of not providing an advance to pay for AA membership might be expected to impact on the appellant. The Authority sensibly found that there was no certainty about the impact of not being an AA member, and that such membership “is simply a security measure”.
[99] Thirdly, the Authority questioned the appellant’s ability to meet this need from her own resources. The Authority noted that the appellant had not provided evidence that she could not meet the need if not funded by the Chief Executive. However, it was accepted that her budget was modest and she was receiving some assistance towards the cost of car ownership through her disability allowance for disability-related travel. I note that MSD’s report for the Authority recorded that she
had been an AA member for a number of years.
11 Re SL [2014], above n 3.
[100] The Authority also had relevant regard to the appellant’s existing level of debt and her ability to repay any advance made for this purpose. The Authority recorded the appellant had a number of advances totalling some $5,300, many of which were only being repaid at 50 cents per week. As at February 2014, MSD’s recovery rate from her was $12 per week. The Authority consequently inferred that the appellant would have difficulty repaying an advance.
[101] For all these reasons, the Authority upheld the Chief Executive’s decision not
to make an advance for the cost of AA membership.
Questions on alternative arguments regarding AA membership
[102] On the appellant’s motion, the Authority has posed the following questions of
law arising out of the appellant’s failure on these alternative arguments:
Did the Authority err in law in concluding that it would not be appropriate to make an advance payment of benefit to the appellant for the purposes of AA membership on the basis that:
(a) The appellant did not have a particular immediate need for an essential item or service.
(b) There were no exceptional circumstances which would warrant the Chief Executive exercising discretion to pay the appellant an advance of benefit when she had exceeded the basic entitlement provided for in the Ministerial Direction.
(c) The appellant could not afford to repay the advance?
[103] The Authority’s approach to the first two of these propositions was consistent with its consideration of whether there was an emergency made out for the first basis of the claim, namely a Special Needs Grant. The concepts of a particular immediate need, being for an essential item or service, confine the prospects of an advance of benefit to relatively narrow circumstances. The rationale for being an AA member is to provide a measure of comfort against the risk of having a particular need at some point in the future. By definition, that is inconsistent with it being an immediate need. Equally, payment of AA membership is in substitution for having to deal directly with a mechanical repairer when a need subsequently arises. Again, that is antithetical to the membership cost being essential at the time the requirement to renew membership arises.
[104] The position in law is equally clear-cut on the second of the questions, which related to the exceptional circumstances that might warrant the Chief Executive exercising his discretion to provide an advance when the appellant had already exceeded the basic entitlement provided for in the Ministerial Directive. In short, the Authority could not recognise, and the appellant had not pointed to, any exceptional circumstances in her case. It is consistent with the analyses on earlier parts of these considerations that there could be none.
[105] As to the third question, the appellant took umbrage at the finding that she could not have funded repayments on a periodic basis. I am satisfied that the Authority’s consideration on this was appropriate. As Mr Soper pointed out, cl 5 of the Directive on the programme required MSD to assess a beneficiary’s ability to repay over a period of a maximum of 24 months. That would have required the appellant to repay a further $1 per week. Given the appellant’s stance at limiting repayments of other advances she had received to 50 cents per week, I can find no error in the approach that the Authority applied in deciding that she could not afford to repay any additional advance she received for this purpose.
[106] Accordingly, none of the grounds of appeal are made out and the appeal is dismissed.
Appeal 425
[107] This appeal challenged MSD’s response to requests by the appellant for non- recoverable Special Needs Grants to visit her father. The uncontested factual background cited by the Authority is that the appellant had advised MSD on three occasions in 2011 that her father was dying, and again in December 2012. On the latter occasion, she was paid a non-recoverable Special Needs Grant of $50.
[108] The appeal arises out of a further request in February 2013 for another Special Needs Grant. The Chief Executive declined that but instead paid an advance of benefit for petrol for the appellant to visit her father.
[109] This appeal is against the decision to make the February 2013 payment as an advance rather than as a non-recoverable Special Needs Grant.
[110] Clause 9 of the Special Needs Grant programme provides that the Chief Executive should not make more than one grant for the same purpose in any 52 week period, unless there are exceptional circumstances. There were therefore two relevant criteria under which the appellant had to qualify. First, that under cl 12.2 the Chief Executive had to consider that an emergency situation existed. Secondly, if that was made out, assuming the purpose was the same as the December 2012 payment, there had to be exceptional circumstances. The Authority upheld the Chief Executive’s decision that neither of these criteria was made out.
[111] The Authority posed three questions that it characterised as ones of law in the case stated for this appeal.
Question 1 – interpretation of “emergency”
[112] The first question posed under this appeal was:
Did the Authority err in its interpretation of the concept of “emergency”
under the Special Needs Grant programme?
[113] This question has been considered in the context of the 423 appeal and the
appellant’s criticism of the Authority’s approach was rejected at [80]-[105].
Question 2 – does the health of appellant’s father constitute an emergency situation?
[114] The second question was posed in the following terms:
Was there any evidence on which the Authority could base its conclusion that in the circumstances of the appellant’s case there was no emergency situation for the purposes of clause 12 of the Special Needs Grant programme?
[115] The Authority determined that there was not an emergency situation because, on the appellant’s own account, her father’s health was not at crisis point or unforeseen. She had previously advised MSD that her father was dying on four occasions, and did not provide independent evidence that it was an emergency situation. Further, shortly after the application, the appellant had travelled from her local area to participate in a horse trail ride without seeking MSD assistance. That suggests that she would have had her own resources to fund the travel to visit her
father, as long as she accorded such a visit equal or higher priority than participating in the horse event.
[116] Even if this question were amended to the formula Mr Fraser preferred as to whether the Authority erred in law in coming to this conclusion, the outcome would be the same. In testing whether there was an emergency, the history of MSD’s dealings with the appellant entitled it to be somewhat sceptical. She did not provide any independent evidence that her father’s medical condition was precarious, she had recently been funded on a non-recoverable basis for the same purpose, and MSD had the legitimate option of dealing with the request by way of an advance of benefit, which it did provide.
Question 3 – two Special Needs Grant applications for same purpose?
[117] The third question posed by the Authority was:
Was there was any evidence on which the Authority could conclude that the appellant’s Special Needs Grant application of 15 February 2013 was for the same purposes as the Special Needs Grant application granted on
24 December 2012.
[118] The purpose advanced by the appellant on each occasion was the same. She wished to go and visit her father who suffered ill health. It is a contrivance to suggest that there was no evidence on which the Authority could treat the two requests as being advanced for the same purpose.
[119] Mr Fraser did not advance any arguments on the alternative formula as to whether the Authority erred in concluding that the purpose was the same on the December 2012 and February 2013 occasions, nor could he credibly do so. This was a fundamental factual proposition that was inarguable.
[120] Accordingly, the three questions in appeal 425 are to be answered no, yes and yes.
A concern over the questions posed
[121] The Authority has to reconsider its own decisions for possible errors of law if an appellant wishes to pursue a further appeal to the High Court. The statutory provision is in s 12Q of the Act:
12Q Appeals to High Court on questions of law only
(1) Where any party to any proceedings before the Authority is dissatisfied with any determination of the Authority as being erroneous in point of law, he may appeal to the High Court by way of case stated for the opinion of the court on a question of law only.
(2) [Repealed]
(3) Within 14 days after the date of the determination the appellant shall lodge a notice of appeal with the Secretary of the Authority. The appellant shall forthwith deliver or post a copy of the notice to every other party to the proceedings.
(4) Within 14 days after the lodging of the notice of appeal, or within such further time as the Chairman of the Authority may in his discretion allow, the appellant shall state in writing and lodge with the Secretary of the Authority a case setting out the facts and the grounds of the determination and specifying the question of law on which the appeal is made. The appellant shall forthwith deliver or post a copy of the case to every other party to the proceedings.
(5) As soon as practicable after the lodging of the case, the Secretary of the Authority shall submit it to the Chairman of the Authority.
(6) The Chairman shall, as soon as practicable, and after hearing the parties if he considers it necessary to do so, settle the case, sign it, send it to the Registrar of the High Court at Wellington, and make a copy available to each party.
(7) The settling and signing of the case by the Chairman shall be deemed to be the statement of the case by the Authority.
(8) If within 14 days after the lodging of the notice of appeal, or within such time as may be allowed, the appellant does not lodge a case pursuant to subsection (4), the Chairman of the Authority may certify that the appeal has not been prosecuted.
(9) The court or a Judge thereof may in its or his discretion, on the application of the appellant or intending appellant extend any time prescribed or allowed under this section for the lodging of a notice of appeal or the stating of any case.
(10) Subject to the provisions of this section, the case shall be dealt with in accordance with rules of court.
[122] The extent of questions posed in these three appeals exemplifies a matter of some concern to the Court. This arises out of the volume of such cases stated and the inclusion of questions that either raise entirely well-settled and conventional applications of the law where inconsistent applications of the settled law are untenable, or contrived formulations of questions that might arguably constitute questions of law but really masquerade as a vehicle for attempting to re-argue factual findings.
[123] Requests to state cases are likely to confront the Authority in circumstances where long-term beneficiaries sadly develop a pre-occupation with airing their dissatisfaction at the level of State support they are receiving. Such litigants are generally freed of the discipline usually confronting other litigants, that they risk not only their own contributions to the costs of arguing their case, but the prospect of adverse costs awards for claims that are pursued unsuccessfully. The lack of that discipline is likely to be material in dissatisfied beneficiaries persisting as far as “the system” will allow them.
[124] The Authority is not obliged to recognise all questions of law proposed as justifying the stating of a case for the decision of this Court. I respectfully adopt the careful analysis of the context and mode of working of s 12Q reflected in the Gendall J’s judgment in Crequer v Chief Executive of the Ministry of Social
Development.12 As that judgment demonstrates, the Chair of the Authority must
retain final control over a case stated and ensure that a case is confined to errors of law alone and that such issues are genuinely in contention between the parties. Not every legal issue is to be submitted to the High Court. Where some have obvious answers, then there is no question to refer to the Court.13
[125] I respectfully urge that the Authority exercise the requisite rigour in requiring applicants for the stating of a case to justify the gravamen of their concern as raising a genuine question of law, and that such questions of law raise some tenable basis for
suggesting an error has been made.
12 Crequer v Chief Executive of the Ministry of Social Development [2015] NZHC 1602, [2015] NZAR 1395.
13 At [29], [40].
Summary
[126] All questions posed in the three appeals, except question 4 in appeal 424, are answered consistently with the Authority’s own determinations. Despite an error of law being acknowledged on the point raised by question 4 in appeal 424, I am satisfied that the outcome of the appellant’s application in relation to a Training Incentive Allowance would inevitably have been the same.
Costs
[127] The respondent did not seek security for costs on the appeals, but has also indicated that the appeals should be appropriately categorised for costs purposes in category 2.
[128] If costs are to be pursued, a memorandum limited to 10 pages may be filed within 15 working days of delivery of this judgment. If such a memorandum is served, then the appellant will have 15 working days to file a memorandum in response. I would then determine the matter of costs on the papers.
Dobson J
Solicitors:
Heretaunga Law, Upper Hutt for appellant
Crown Law, Wellington for respondent
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