Morgan v Chief Executive of the Ministry of Social Development

[2014] NZHC 421

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-485-005808 [2014] NZHC 421

BETWEEN  IAN AND JEANNE MORGAN Appellants

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:                   12 February 2014

Appearances:           G M Brodie for Appellants

T Hallett-Hook for Respondent

Judgment:                10 March 2014

JUDGMENT OF DUNNINGHAM J

[1]      The appellants, like thousands of other Canterbury families, have had  to move out of their earthquake destroyed home and live elsewhere until their home is rebuilt.

[2]      When  insurance  cover  for  their  rental  costs  ran  out,  they  applied  for temporary accommodation assistance (TAA) from the Ministry of Social Development.  They were declined.  That decision has been through various internal reviews.   It now comes before this Court as a case stated on appeal from a determination of the Social Security Appeal Authority (the Authority).

[3]      The questions of law referred to this Court centred on the Authority’s use of s 74(1)(d) of the Social Security Act 1964 (the Act) to decline the grant of TAA to the   appellants   under   the   Temporary  Accommodation  Assistance   (Canterbury

Earthquake) Programme (the Programme).

MORGAN v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 421 [10 March 2014]

Background

[4]      The appellants, Mr and Mrs Morgan, live in Christchurch with their four children.    Prior  to  the  earthquake  of  22  February  2011,  the  family  lived  at

120 Woodham Road, Christchurch, a property owned by the I and J Morgan Trust. This property was badly damaged in that earthquake and rendered uninhabitable.

[5]      Following the earthquake the family lived in a campervan on a property at Rangiora.  The family then moved into 22 Newcastle Street, a property owned by the I M Property Trust (the Trust).  The settlor of the Trust is Mr Morgan, and the trustee is  L M  Trustee  Holdings  Limited.    Mr  Morgan  is  the  sole  shareholder  in  that company and he and Mrs Morgan are the sole directors.   The beneficiaries of the Trust  are  the  I & J Morgan  Family  Trust  and  two  charities.    The  property  had previously been occupied by tenants who (progressively) moved out following the earthquake, and who had been paying $480 a week in rental.

[6]      On 15 March 2011, L M Trustee Holdings Limited entered into a tenancy agreement with Mr and Mrs Morgan for 22 Newcastle Street and the Morgans rented the property from March 2011 to October 2012.

[7]      Initially  the  appellants’ insurer  met  the  appellants’ rental  costs,  but  that entitlement expired on 13 March 2012.  On 3 February 2012 the appellants applied for TAA to meet the rental which they were paying at that time. The Chief Executive of the Ministry declined  their  application  on  the basis  that  the  appellants  were occupying their own rental property and were therefore not entitled to TAA under cl

8 of the Programme (which sets out the criteria for eligibility for TAA).

[8]      The  Chief  Executive’s  decision  to  decline  the  application  was  internally reviewed and upheld in July 2012.  Again the reason for the decision was said to be that “... the Applicant and his wife are owners of the house they currently reside in as it is owned by the I M Property Trust.  Clause 5 of the Programme does not include mortgage, rates, house insurance and property maintenance payments as temporary

accommodation costs”.1    The decision expressly noted that no discretion had been exercised in reaching that decision.2

[9]      Mr and  Mrs  Morgan  then  applied  to  have the  decision  reviewed  by the Benefits Review Committee.  That Committee upheld the Chief Executive’s decision on 9 August 2012, again on the grounds that the Morgans were the owners of the rental property.

[10]     Mrs  and  Mrs  Morgan  appealed  the  decision  of  the  Benefits  Review Committee to the Authority and, on 19 April 2013, the Authority dismissed their appeal.  It was apparently accepted by the Authority that the Morgans were not the “owners” of the property.  Instead of finding they were ineligible for TAA under cl 8 of the Programme as the previous decisions had done, the Authority concluded that the Chief Executive was entitled to exercise his discretion to decline their application under s 74(1)(d) of the Social Security Act 1964.

Appeal by way of case stated

[11]     The appellants then brought this proceeding by way of case stated for the opinion of the Court pursuant to s 12Q of the Act and Part 21 of the High Court Rules.

[12]     The questions of law for the opinion of the Court are:

(a)       Was the Authority’s interpretation of section 74(1)(d) of the Social

Security Act 1964 at paragraph 36 of its decision correct?

(b)      Was there any evidence which entitled the Authority to infer that:

(i)  the appellants  had  made a deliberate decision  to  purchase the property at 22 Newcastle Street in the name of the Trust.

(ii) the appellants had deprived themselves of property.

1      Internal Review of Decision, dated 9 July 2012, at 5.

2      See Section 5 of the Internal Review Template.

(iii)In  the light  of the basis  on  which  the  decisions  of the Chief Executive and the Benefits Review Committee declined the appellants’ application, did the Authority have jurisdiction to dismiss the appellants’ appeal on the basis that discretion should be exercised pursuant to the s 74(1)(d) to decline the appellants’ appeal.

Statutory framework

[13]     The  Programme  was  established  by the  Ministry of  Social  Development under s 124(1)(d) of the Act.  That section allows money to be paid out of a Crown Bank Account, from money appropriated by Parliament for that purpose, in order to fund special assistance under any welfare programme established and approved by the Minister.

[14]     Section 124(1A) provides:

Every welfare programme approved by the Minister under subsection (1)(d)- (a)    shall be administered by the chief executive:

(b)      may provide for any specified provision of this Act to apply to and in respect of-

(i)       the programme; and

(ii)      any applicant for assistance under the programme; and

(iii)     any other specified class or classes of person–

as if the special assistance authorised by the programme were a benefit under this Act.

[15]     The submissions for the Chief Executive made reference to the purpose of the Act, as set out in s 1A and submitted that the Act was concerned to aid those who truly need financial assistance, but that it also had to be “administered efficiently so as not to waste public funds”.  He referred to three Court of Appeal decisions which had expressed the purpose in various ways:

(a)      “social security benefits are to be reserved for those who truly need them”3,

(b)“... the relevant statutory objectives [provide] for the efficient administration of social welfare benefits and protecting the public purse”;4

(c)      “the concern of the legislation was with the provision of financial help for people who for one reason or another could not adequately support themselves”.5

[16]     I have reservations about how relevant these general statements of purpose are to a grant of TAA under the Programme and consider the purpose articulated within cl 4 of the Programme itself is more relevant to such a decision.  This clause provides:

4.        Purpose

The  purpose  of  this  programme  is  to  provide  special  assistance  to homeowners and certain other people-

(a)       whose usual homes situated in an affected area were damaged by the

Canterbury earthquake; and

(b)       who intend (or trustees intend) to have remediation work carried out in respect of their usual homes or who would so intend but for their usual homes being in the red zone; and

(c)       who either-

(i)       have had to vacate their usual homes,-

(A) until that remediation work is carried out; or

(B) being   homes   in   the   red   zone,   because   they   are uninhabitable or it is unreasonable for them to continue to occupy them as their homes; or

(ii)      need to vacate their usual homes to enable remediation work to be carried out; and

3      Tapp v Chief Executive of the Department of Work and Income [2003] NZFLR 761 (CA) at [19].

4      Nicholson v Department of Social Welfare [1999] 3 NZLR 50, (CA) 58 at [30].

5      Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 161.

(d)      who require assistance to meet the costs of their temporary accommodation during the period they need to vacate their usual homes; and

(e)       either-

(i)       whose insurance cover for temporary accommodation has expired; or

(ii)      who have no insurance cover for temporary accommodation and have exceptional circumstances.

[17]     The primary purpose of the Programme appears to be a functional one.  It is not obviously directed to achieving a broader social outcome or objective.  It is to enable assistance to be given to people who come within the prescribed eligibility criteria, by reimbursing that additional cost they have had to meet, rather than to address, or remedy, individual hardship or need.  It appears to assume an element of financial hardship will be suffered from the simple fact of having to bear a temporary accommodation cost, which is not otherwise being met, and which would not normally be expended by the applicant.

[18]     The general statements of purpose in the Act may, of course, be relevant to the exercise of a discretion under the Act, such as that contained in s 74(1)(d).  The respondent’s  reference  to  the  Act’s  statement  of  purpose  carried  with  it  the implication that the Morgans were not truly in need of this assistance which is why it was appropriate to decline it.   However, Mr Morgan’s affidavit evidence for the Authority hearing deposed:   “We have no savings.   My wife has no income.   ... I would  say  that  our  family  has  been  deeply  traumatised  and  stressed  by  the

earthquake.   …   We are seriously in debt and getting further into arrears”.6    The

couple had clearly extended themselves to acquire rental property and there was no challenge to the evidence that they were suffering emotional and financial hardship.

[19]     The eligibility criteria for TAA are set out in cl 8 of the programme.  In order to qualify for TAA, the appellants must:

(a)       have been required to vacate a premises they own (or occupy as the beneficiary of a Trust) because it is uninhabitable until remediation work is carried out or to enable remediation work to be carried out (cl 8(1)(a)),

6      Affidavit of Ian Morgan dated 11 February 2013.

(b)       intend to have remediation work carried out in respect of the affected premises (clause 8(1)(b)),

(c)       be incurring costs in respect of their temporary accommodation for the period they have been required to vacate the premises (cl 8(1)(c), and

(d)       have  insurance  cover  for  temporary  accommodation  which  has expired or, if they did not have insurance cover, have exceptional circumstances that has justified the provision of financial assistance (cl 8(1)(d)).

[20]     If these criteria are met, the Chief Executive may grant TAA if the Chief

Executive is satisfied that:

(a)       the applicants intend to reoccupy the premises they have vacated as soon as remediation work is carried out (cl 8(2)(a),

(b)       no other person is occupying the affected premises for a monetary consideration (cl 8(2)(a)(c)),

(c)       the applicants are not receiving another accommodation supplement or benefit (cl 8(2)(b)),

(d)       the  applicants  have  taken  all  reasonable  steps  to  minimise  their liability to pay temporary accommodation costs and the amount of these costs (cl 8(2)(c)).

[21]     The Programme defines “temporary accommodation costs” narrowly in cl

5(1).  It includes rent, board or lodgings, or the costs of a holiday park, motel, hotel or serviced apartment, but excludes “any service costs” and any “arrears”.   The submissions for the respondent emphasised that the Programme was “not intended to defray the wider costs of home ownership (such as mortgage payments, rates, insurance) or to providing (sic) assistance to property owners who have been financially disadvantaged by the Canterbury Earthquake (through loss of rental income, for example)”.

[22]     As  a  welfare  programme  established  under  s  124(1)(d),  TAA  is  not  a “benefit” for the purpose of the Act.   However, under s 124(1A) of the Act, the Minister can specify that sections of the Act apply to a special assistance programme as if it were a benefit.   In this case, cl 6 of the Programme provides that various sections of the Act, including s 74, apply “as if temporary relocation assistance under this programme were a benefit under the Act”.

Section 74(1)(d)

[23]   As the submissions for the respondent explained, s 74(1) operates as a “backstop”, providing the Chief Executive with a broad discretion to refuse to grant a benefit, or terminate or reduce a benefit that has already been  granted, when satisfied that one or more of the circumstances in s 74(1) apply.

[24]     Section 74(1)(d) of the Act provides:

(1)       Notwithstanding anything to the contrary in this Act ... the chief executive may, in the chief executive’s discretion, refuse to grant any benefit or may terminate or reduce any benefit already granted or may grant a benefit at a reduced rate in any case where the chief executive is satisfied ...

(d)       that the applicant has directly or indirectly deprived himself of any income or property which results in his qualifying for that or any other benefit or an increased rate of benefit.

[25]     Importantly, satisfaction of one or more of the criteria in s 74(1) is simply a pre-condition for the exercise of the Chief Executive’s discretion, but does not determine whether (or how) the discretion will be exercised.

The decision

[26]    When the appellants’ case came before the Authority, it identified and considered the following issues:

(a)       whether the appellants’ rental costs were genuine,

(b)whether the appellants had minimised their temporary accommodation costs,

(c)       whether s 74(1)(d) of the Social Security Act applied in this case; and

(d)      whether the Chief Executive exercised the discretion in s 74(1)(d) to

decline the appellants’ application.

[27]     In respect of the first issue, the Authority reviewed the evidence of bank statements  showing  that  payments  of  $1200  per  month  were  being  paid  to  the

trustee, I M Property Trust, and noted that “the amount of interest and loan payments appears to exceed the amount of rental payments and from time to time the account is topped up from other sources”.  The Authority’s conclusion is that it “cannot say that the rental costs are not genuine”.7

[28]     The  Authority  also  implicitly  dismissed  the  basis  on  which  the  Chief Executive, up to that point, had declined the application for TAA.  In response to the submission that the appellants should be considered owners of the property, the decision records “the legal basis for this submission has not been explained.  This is unfortunate”.8

[29]     In respect of the second issue, which is whether the appellants had minimised their temporary accommodation costs, the Authority did not make a final finding. However, none of its observations suggest that would not be the case.  The Authority noted  that  “the  rental  is  less  than  the  amount  being  received  prior  to  the

earthquake”.9   It also stated “there is no evidence to suggest that $300 per week10 is

more than the appellants will be paying for an equivalent property in the same area. The family were at one stage living in a campervan but the Ministry do not suggest that they should continue to do so”.11

[30]     I also note that the Authority’s reliance on s 74(1)(d) implicitly recognises that the appellants do otherwise qualify for TAA in respect of the first two issues, as that is a pre-condition to the exercise of the discretion.

[31]     In respect of the third issue, which is whether s 74(1)(d) of the Act applied in this case, the Authority first considered whether cl 6 of the Programme required TAA to be treated as a benefit to which the provisions of s 74(1)(d) may apply.   The question arose because cl 6 of the Programme referred to “temporary relocation assistance”  rather  than  “temporary  accommodation  assistance”.    The  Authority

decided  that  the  reference  to  “temporary  relocation”  assistance  was  clearly  a

7      Social Security Appeal Authority Ian and Jeanne Morgan [2013] NZSSA 38 at [22].

8 At [20].

9 At [22].

10     Which is what the appellants were paying in rental at that stage notwithstanding their original application was for rental costs of $480 per week which is what the Newcastle Street property was normally rented for.

typographical error and, to give meaning to cl 6, it was appropriate to substitute the word “accommodation” for “relocation”.  Appropriately in my view, no issue was taken with that conclusion.

[32]     The Authority, after discussing relevant case law, decided it could infer that one or both of the appellants made a deliberate decision to purchase the property at Newcastle Street in the name of the Trust, whereas they could have purchased it in their personal capacity, and by that action, they had deprived themselves of property. In the Authority’s view, therefore the pre-condition in s 74(1)(d) was met.

[33]     Finally, in respect of the fourth issue, the Authority said “we are then required

to consider whether the Chief Executive should exercise the discretion contained in s

74(1)(d) to decline to grant temporary accommodation assistance”.12    In that regard the Authority stated that “there is nothing in the programme which would suggest that the appellant could not move to a rental property owned by a stranger and receive assistance without question, provided the appellants can demonstrate that they have minimised their temporary accommodation costs”.13   It went on to accept that “in the normal course of events if the appellants’ family home had not been damaged, the property that he and the family are now occupying would be rented to tenants, conceivably at a higher rent than is now being paid”.14    It also stated that “the purpose of the programme is not to enable persons to improve their financial circumstances but simply to allow them to mitigate the costs associated with being displaced from their homes”.15

[34]     Despite those observations, the Authority concluded that “while we have some sympathy for the appellants, taking into account all the circumstances as they are known to us, we consider that the appellants should not be advantaged over someone who has not placed their property in a trust.   The Chief Executive was entitled  to  exercise  his  discretion  to  decline to  grant  temporary accommodation

assistance to the appellants”.16

12 At [38].

13 At [40].

14 At [43].

15 At [45].

[35]     While this last sentence, taken on its own, could be read as suggesting the Chief  Executive  had  exercised  his  discretion  previously  and  the Authority  was simply confirming it, I think, reading the decision as a whole, it is clear the Authority is, itself, exercising the discretion, as it is entitled to do under s 12I(2).

Discussion of questions of law

Was the Authority’s interpretation of s 74(1)(d) of the Social Security Act 1964 at

para [36] of its decision correct?

[36]     Para [36] of the decision reads as follows:

To deprivate (sic) oneself of property all that is required is that there be a deliberate act or omission on the part of the person who has allegedly deprived himself or herself of property.  It is not necessary to show that the deprivation took place with the intention of obtaining a benefit Blackledge v the Social Security Commission.

[37]     The statement at [36] is narrow.  It only sets out the interpretation of the law on the first limb of s 74(1)(d).

[38]     In order to meet the first limb of s 74(1)(d), being the direct or indirect deprivation of property or income by the applicant, it is clear that:

(a)      there is no requirement that there be an intention to qualify for a benefit or an increased rate of benefit17

(b)the applicant’s deprivation of income or property must be a deliberate act in the sense that that it is voluntary act and not an accidental act or an act beyond the control of the applicant.18

[39]     The term “deprive” is to be interpreted broadly and may include deprivation

in the passive sense of the word, for example, by failing to take an opportunity to earn an income.   In this regard, the decision in Chhima v Chief Executive of the

17     Blackledge v  Social  Security Commission  HC Auckland  CP 81/87  and AP 249/89-255/89,

17 February 1992 at 37-38 [Blackledge].

18     At 37-38.

Department of Work and Income New Zealand,19  was discussed at some length by the respondent, as demonstrating the breadth of application of s 74(1)(d).

[40]     The Chhimas were applicants for an income tested benefit.  They owned a 13 acre property in Takanini which was suitable for market gardening.  The High Court held that by not leasing the property, and instead lending it to a neighbour to use free of charge, the couple had made a choice which “deprived” them of income.  This therefore met the pre-condition for the exercise of the Chief Executive’s discretion.

[41]     In light of the decisions in Chhima, Blackledge v Social Services Commission and Keenan v Director-General of Social Welfare,20 all of which are referred to in the submissions of Mr Hallet-Hook for the respondent, I accept that paragraph [36] is an accurate statement of the law on the first limb of s 74(1)(d).

[42]     Mr Brodie did not suggest that these cases incorrectly stated the law.  Rather he argued in this case that:

(a)       the only deprivation of property was of the $12,000 deposit; and

(b)even if the Newcastle Street house was a property the appellants had “deprived”  themselves  of,  the  Authority  had  not  considered  the second limb of the s 74(1(d) test, which was whether that deprivation “resulted in them qualifying for a benefit”.

[43]     While not expressly stated, both parties proceeded on the basis that the first question of law was asking whether para [36] correctly stated the legal test to be met before the Authority could go on to exercise its discretion under s 74(1)(d).

[44]     The  respondent’s  submissions  noted  that  “while  the  Authority  did  not expressly refer to the requirement that deprivation result in a person qualifying for a benefit in para [36] and [37], it is clear from para [44] that the Authority considered

that the applicants would not have qualified for TAA if they had owned a property in

19     Chhima v Chief Executive of the Department of Work and Income New Zealand HC Auckland

CIV-2004-485-1761 & 1762, 22 September 2006 [Chhima].

20     Chhima, above n 14; Blackledge, above n 12; Keenan and Director-General of Social Welfare

HC Auckland AP 24-SW00, 19 June 2000.

their personal capacity”.  The conclusion is that the Authority has therefore correctly

interpreted s 74(1)(d).

[45]     Mr Brodie, for the appellants, disputed that, saying:

... the deprivation must result in a person qualifying for a benefit which they would not otherwise have received.  That cannot be said of the facts in this case.  Furthermore, it is submitted that the Authority has not directed itself to consider this issue.  It has decided there was a deprivation of property and has then considered the discretion which would be available to the Director- General if s 74 is engaged.

[46]     In my view, the word “results” in this subsection requires the deprivation to be the determining factor which creates the entitlement to the benefit.   Where a benefit is means tested by reference to ownership of assets or level of income, it is clear that deprivation of an asset or of income could result in an applicant qualifying for a benefit when they otherwise would not have.

[47]     However, TAA is neither asset nor income tested.  For example the appellants could have had a high household income but that would not affect them qualifying. Equally they could have deprived themselves of income, but that would be immaterial, as that would not result in qualifying for the “benefit”.

[48]     Here, the relevant consideration is whether deprivation of ownership of the Newcastle Street property means the appellants qualify for a benefit when otherwise they would not.  In this case I do not think that this is the determinative factor.

[49]     The respondent accepted that, had the appellants rented a different property “owned by a stranger”, then they could receive assistance without question, provided they could demonstrate that they minimised their temporary accommodation costs.21

[50]     Furthermore,  in  the  course  of  the  hearing,  it  was  acknowledged  by  the Authority  that,  had  the  Morgans  owned  22  Newcastle  Street  in  their  personal capacity, they would not inevitably be required to occupy it instead of obtaining accommodation assistance.   If it was rented out (as the Newcastle Street property

habitually was), then the Authority would not necessarily require the owner to evict

21     Ian and Jeanne Morgan, above n 6, at [40].

tenants and move in.  It would depend on the circumstances, as to whether that was a reasonable expectation.

[51]     I note the Authority at para [44] records that “[b]alanced against these matters is the fact that a landlord who owns a property in their personal name would not be able to claim Temporary Accommodation Assistance if they moved to one of their rental properties”.   However, that is not the same thing as saying if they owned a property in a personal name they would not qualify for TAA.  They would so qualify if they moved to a “stranger’s property”, so ownership of the property in the Trust’s name as opposed to their own name is not what determines whether they are eligible for the grant.

[52]     Because of that error in interpretation, the Authority goes on to incorrectly conclude that the appellants are “advantaged over someone who has not placed their property in a trust”.  In fact, it appears they are disadvantaged by the approach the Authority has taken.  The Trust was in the business of renting the Newcastle Street property (indeed for a higher rental than the appellants were paying).   It was not unreasonable therefore, for the trustees to charge the Morgans rent when they occupied that house.   By applying for TAA, the Morgans were endeavouring to maintain a financially neutral position which I consider to be the primary purpose of TAA.

[53]     Even if I am wrong and the discretion is available, that should be exercised in light of the purposes of the Act and the Programme, which includes to meet the needs of people in financial hardship, and ensure families are not burdened with extra rental costs.

[54]     This was not a case where the family created an artificial tenancy of, say, a family bach held in trust, which they would normally occupy at no cost.  The Trust was in the business of renting the property and, for the period in question, rented it to the appellants.  There is no evidence of the appellants creating an artificial situation whereby they were claiming TAA for home ownership costs they would otherwise have met personally.

[55]     For these reasons, the answer to question 1 is “no”.

Was there any evidence which entitled the Authority to infer that:

(a)      the  appellants  had  made  a  deliberate  decision  to  purchase  the property at 22 Newcastle Street in the name of the Trust.

(b)      the appellants had deprived themselves of property.

[56]     The appellants submitted that there was no evidence to support the finding that there had been a deprivation of assets or income as required by s 74(1)(d). After discussing case law, Mr Brodie accepted that “deprivation can be the result of either a positive act or omission” and that it “need not have been performed deliberately for the purpose of achieving a benefit”.  He noted, and it did not appear to be in dispute, that there was no deprivation of income.  The debate focussed on a deprivation by the appellants of property.

[57]     Mr Brodie sought to characterise the deprivation of property as being in respect of a cash deposit only, in a sum of approximately $12,000, rather than of the property at 22 Newcastle Street itself.

[58]     Mr Hallet-Hook on the other hand, said that the appellants formed the Trust for the purpose of purchasing the property and that Mr Morgan gave evidence that he was endeavouring to establish himself financially by developing a rental property portfolio.   While it was accepted that the planning of this ownership structure occurred well before the Canterbury earthquakes, and there was no question of any intention to structure their affairs for the purpose of obtaining TAA, the appellants “had made a deliberate choice to structure their affairs in a manner that avoids legal ownership of 22 Newcastle Street while retaining a beneficial interest in this property”.  It was reasonable, therefore, for the Authority to infer that the appellants could equally have chosen to purchase the property in their personal capacity.

[59]     In saying that, Mr Hallet-Hook referred to the fact that:

(a)       the  Trust  did  not  appear  to  have  any  income  other  than  rental payments from the properties it had purchased,

(b)      the     deposit     used     to    secure     the     financing     to     purchase

22 Newcastle Street was provided by the appellants, and

(c)       the appellants appear to have guaranteed the mortgage obtained by the trustee company to purchase the property.

[60]     All of these facts were gleaned from evidence such as financial statements, trust deeds and mortgage documents which were provided in support of the original application, or at subsequent stages of the decision-making.  In all the circumstances, the respondent submitted that there was ample evidence of a deliberate decision to purchase the property in the name of the Trust, when it could have equally been purchased  by  the  appellants  personally,  and  that  therefore  the  appellants  had deprived themselves of property in the sense meant by s 74(1)(d).

[61]     I accept the Authority’s inferences were available on the evidence supplied. The Newcastle Street property was an asset which could have equally be owned by the appellants in person, but for a decision to acquire it through the trust structure.  It would be artificial to have regard only to the financial sum actually gifted to the trust, and not to the asset which the Trust thereby acquired, which could equally have been acquired by the appellants.

[62]     The answer to question two, therefore, is “yes” in respect of both limbs of the

second question.

In light of the basis on which the decisions [of] the Chief Executive and the Benefits Review  Committee  declined  the  appellants’ application  did  the  Authority  have jurisdiction to dismiss the appellants’ appeal on the basis that discretion should be exercised pursuant to s 74(1)(d) to decline [the] appellants’ appeal?

[63]     The third question of law arises, I expect, because the appellants were taken by surprise at this issue being raised at the Authority hearing and, then forming the basis of the Authority’s decision.

[64]     This is even more understandable when the issue was not raised by counsel for the Ministry, but by the members of the Authority themselves during the hearing. Indeed counsel for the Ministry told the Authority that the provisions of s 74 did not apply, and went so far as to say that the Ministry had determined that it did not apply in another TAA case.22

[65]     That submission appeared to put the issue to rest.  However, at a later point in the hearing, one of the Authority members identified that cl 6 of the Programme expressly stated that s 74 did apply.   Some discussion ensued where it was acknowledged  by  the  Authority  that  the  reference  to  “temporary  relocation assistance” in cl 6 was confusing and did not appear to make sense.  Even towards the end of the hearing, the Chair of the Authority stated that s 74 “does not look as though it applies”.  However, in the final decision, TAA was declined on the basis of the exercise of the discretion in s 74.

[66]     In essence, the question is whether the Authority had jurisdiction to dismiss the appellants’ appeal on the basis of s 74(1)(d), when this had not been:

(a)       raised by the Chief Executive or the Benefits Review Committee; or

(b)      signalled  as  a  ground  the  Ministry  might  rely  on  going  into  the

Authority hearing.

[67]     The respondent submitted that although the Chief Executive did not exercise this discretion when first considering the application, that does not prevent the Authority from exercising it on the facts as it found them.   That submission was supported by Arbuthnot v Chief Executive of the Department of Work and Income,23 where the right of appeal to the Authority was held to be an appeal against the result to which the decision-maker had come, and could not be confined or targeted to

specific reasons for the decision.

[68]     Arbuthnot concludes: 24

22     Transcript of proceedings, page 18 line 25 - page 19 line 32.

23     Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55.

24 At [20].

... if the beneficiary elects to take an appeal to the appeal authority, s 12M provides for it to conduct a rehearing (including, if necessary rehearing the evidence or any part of it or receiving new evidence on questions of fact), which opens up for further consideration the whole of the decision made by the DRC (or by the chief executive personally).

[69]     This meant the Authority was entitled to consider the matter afresh and come to a decision based on its own reasoning.  It was not confined to examining whether the reasons originally relied on were correct or not.

[70]     The thrust of Mr Brodie’s submissions was that the Authority ought not to have relied on a completely new ground in this way, as the appellants were “severely disadvantaged by the process”.  That may well be so.  However, the question of law relates solely to the Authority’s jurisdiction25  to dismiss the appellants’ appeal on a different ground from that on which the Chief Executive originally relied to make its decision.

[71]     That, in my view, is clearly answered by the provisions of s 12I(2) of the Act which provides that, when the Authority hears and determines an appeal, it has “all the powers, duties, functions and discretions that the Chief Executive had in respect of the same matter”.  The Authority could exercise a discretion if that was available, in law, to the Chief Executive when making this decision.

[72]     Accordingly, the answer to the third question of law is “yes”.

Outcome

[73]     Neither party addressed me on the course of action to be taken if I upheld the appellants’ appeal on any question of law.

[74]     Appeals to the High Court of decisions made under the Act are governed by s

12Q.  Section 12Q(1) provides that such appeal is to the High Court by way of case stated for the opinion of the Court on a question of law only.   Section 12Q(10)

requires the case then to be dealt with “in accordance with rules of Court”.   Rule

25     In the sense discussed in New Zealand Rail Ltd v Employment Court [1995] 3 NZLR 179 (CA) of it being “within the classes of decisions and order which [the Authority] was entitled to make”.

21.14 of the High Court Rules sets out the Court’s powers on determining a question of law or fact in a case stated.  The rule provides that, in the case of an appeal, the Court must either:

(a)      reverse, confirm, or amend the decision in respect of which the case was stated, or

(b)remit the matter to the Tribunal for reconsideration and decision in accordance with the opinion of the Court on the question of law or fact (or both).

[75]     I therefore have to decide whether this is a case where it is proper to remit the matter back to the Authority for reconsideration in light of my findings on the questions of law, or whether it is appropriate for me to reverse the decision in respect of which the case was stated and make any other appropriate ancillary orders.

[76]     In my view, the answer turns on whether justice requires the matter to be remitted back to the Authority for reconsideration, or not.

[77]     In my view, this is a case where  it is appropriate to simply reverse the decision of the Authority and approve the grant of TAA for the period in question.  It is not a case where further information is required or where my finding is simply one factor to be taken into account in the exercise of a discretion.  It is clear from the Authority’s decision that it does not consider the ground previously relied on to decline TAA as having merit and that the appellants otherwise qualify for TAA.  It is not necessary, therefore, to require the parties to go through the expense and delay of a further hearing to confirm those conclusions.

[78]     The only other matter I note is that the original application for TAA referred to rental costs of $480 per week.  That is not the rental cost described in subsequent consideration of the application, in particular, the Authority hearing.   As the Authority’s consideration referred to a rental cost of $300 a week, the grant of TAA will be in respect of that amount, and not the amount recorded at question 29 of the original application.

[79]     Accordingly, I order:

the application by the appellants for temporary accommodation assistance under the Temporary Accommodation Assistance (Canterbury Earthquake) Programme lodged on 3 February 2012, is approved, but subject to a maximum reimbursement of $300 per week for the rental of 22 Newcastle Street, Phillipstown, Christchurch.

[80]     I was not addressed on the question of costs.  This would seem to be a case where costs on a 2B basis are appropriate.  However, if counsel wish me to consider and make a determination on the issue of costs, they should do so by filing memoranda on behalf of the appellants by 21 March 2014, and on behalf of the respondent by 28 March 2014.

Solicitors:

G M Brodie, Barrister, Christchurch

Crown Law, Wellington