Little v Chief Executive of the Ministry of Social Development

[2015] NZHC 1744

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11298

CIV 2015-485-252 [2015] NZHC 1744

BETWEEN

IAN LITTLE

Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	27 July 2015
Counsel:	Appellant in Person R D Garden and A Jacobs for Respondent
Judgment:	28 July 2015

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      This case involves appeals by Mr Little against two decisions of the Social Security Appeal Authority (the Authority).1   In the first decision the Authority upheld the decision of the Chief Executive to decline Mr Little’s application for a Special Needs  Grant  for  food.    In  the  second  decision  the Authority  upheld  the  Chief Executive’s decision to decline Mr Little’s application for an advance of benefit in order to purchase a washing machine.

[2]      Mr Little’s applications faltered for a common reason – he has substantial savings  in  a bank  account.    Mr Little believes  these savings  should  be ignored because  he  has  earmarked  them  for  his  funeral  expenses,  which  will  involve

repatriation of his body to Australia.  The decision makers have all held that it is not

1      Little v Benefits Review Committee [2014] NZSSA 016 and Little v Benefits Review Committee

[2014] NZSSA 81.

LITTLE v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 1744 [28 July 2015]

possible  to  disregard  the  savings  available  to  him.    In  support  of  his  position Mr Little calls in aid, without developing how they might apply, documents such as the United Nations Declaration on the Rights of Indigenous People.  The proposition is that they confer a right to be buried in accordance with custom, and that this means the money can be isolated.

Application for Special Needs Grant

[3]      Applications for a Special Needs Grant (Grant) are for a non-refundable grant to provide, amongst other things, for essential and immediate needs.  An application is governed by the provisions of the Special Needs Grants Programme. Applications are to be assessed according to specific rules but also against the background of General Principles, one of which is that the Chief Executive must consider the ability of applicants to meet the need from their own resources.

[4]      Clause 8 contains two provisions that provide an absolute impediment to Mr Little’s application.   First, cl 8.1 provides that an applicant is not entitled to a Grant if his cash assets exceed a nominated figure.  Mr Little’s cash assets do exceed that figure.  Second, cl 8.4 deals specifically with applications for a Grant for food and states that an applicant is not entitled to this form of Grant unless he and his spouse have no cash assets at all.

[5]      The definition of cash assets is clear.  Unsurprisingly it includes all money held in a bank account.  Further, some exclusions are recognised – the family home and car, a caravan or boat up to $2,000 and personal effects are all exempted.  What is plainly not excluded are savings earmarked by the beneficiary for other preferred purposes.  The Programme gives no discretion to circumvent the definition of cash assets, and it prohibits the giving of a Grant when the applicant falls outside the cash assets rule. Accordingly Mr Little’s application could not succeed.

[6]      Two case stated questions were asked, the answers to which are:

(a)       no, the Authority did not err in holding that Mr Little’s savings were

to be included within the definition of cash assets; and

(b)no, the Authority did not err in holding that the Chief Executive had no discretion to exclude the savings from consideration.

Application for a benefit advance

[7]      The application for a benefit advance to purchase a washing machine fell to be considered under a Ministerial Direction known as the Advance Payment of Benefits Direction (the Direction). The scheme sets a series of pre-conditions which, if met, allow the Chief Executive as a matter of discretion to authorise an advance payment of benefit entitlements.  The Chief Executive’s discretion is itself qualified by the need for the situation to amount to “exceptional circumstances”.

[8]      The case stated again asks whether the Authority erred in concluding that Mr Little’s savings were to be included  when assessing his “cash  assets”.   The definition of “cash assets” in the Direction is the same as that provided in the Special Needs Grants Programme, and the answer must accordingly be the same.  No, the Authority did not err.

[9]      The second question posed by the case stated is whether the Authority erred in determining there were no exceptional circumstances warranting the exercise of the  general  discretion  that  resides  in  the  Chief  Executive.    It  should  first  be recognised that this situation is potentially different from the Special Needs Grant application because one is talking about a discretion, albeit one closely controlled by the scheme.  There is, in an appropriate case, at least scope for argument that the exercise of the discretion must have regard to international obligations such as those

referred to by Mr Little.2   That said, the present case does not merit any exploration

of that issue.

[10]     First, there is nothing about Mr Little’s circumstances that could possibly meet  the requirement  for exceptional  circumstances.    Previous  decisions  of this Court have emphasised that requirement is not to be watered down.3   It can be noted

that at the time of the application Mr Little’s savings were in fact greater than the

2      See Helu v Immigration and Protection Tribunal [2015] NZSC 28 at [143]–[144].

3      Stemson v Director of Social Welfare HC Auckland AP22-SW00, 28 June 2000; applying Hall v

Director-General of Social Welfare [1997] NZFLR 902 at 911.

estimate for funeral expenses that he provided.   Further, it is inconsistent with the scheme, and particularly the exclusions already identified, to allow an applicant to identify other exclusions, however important the nominated purpose may be to them.

[11]     Second, in addition to the need for exceptional circumstances, cl 2.3 of the Direction is relevant.  An applicant is required to identify a “Particular Immediate Need” (Need).   In assessing whether such a Need exists the Chief Executive is to have regard to the applicant’s ability to meet the Need from his or her own resources. An applicant is assessed as being able to meet Need if he or she has cash assets to a certain level.  Where that is the case, cl 2.3 provides that the applicant can generally be expected to meet the Need from his own resources.   The clear intent of the Direction is that in the circumstances applicable to Mr Little’s position, an applicant should meet the Need from their own resources.

Conclusion

[12]     The appeal is declined. The questions are all answered “No”.

Simon France J

Solicitors:

Crown Law, Wellington