P v Chief Executive of the Ministry of Social Development

[2016] NZHC 123

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2015-485-582 [2016] NZHC 123

BETWEEN

P

Appellant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	4 February 2016
Counsel:	Appellant in person N Bailey for Respondent
Judgment:	10 February 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 10 February 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Crown Law, Wellington

P v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 123 [10

February 2016]

[1]      The appellant and his former partner have two children, a boy born in 2002 and a girl born in 2004.   They separated in 2011.   They share the raising of the children.  The core arrangement is an informal agreement between them whereby the children spend alternative weeks with each parent.   The Social Security Appeal Authority (the Authority) found as a fact that there was no real dispute between them that each parent takes responsibility for decisions about the day to day activity of the children while they are in their care.   The Authority found that it was unable to

ascertain that one parent had a greater responsibility for the children than the other:1

It is apparent that the appellant was very much involved in the children’s care in the period immediately prior to separation between himself and [his partner].  Both parents worked hard to keep their business going and care for their children. We accept they worked as a team.

[2]      The appellant had appealed to the Authority in respect of a decision of the Chief Executive, upheld by the Benefits Review Committee, declining to pay him an accommodation supplement at a rate which included his children.  The decision was made on the basis that the children were included in the benefit paid to their mother.

[3]      Section 70B of the Social Security Act 1964 provides that only one parent can  receive  a  benefit  paid  at  a  rate  which  takes  their  children  into  account. Materially s 70B provides:

70B      Entitlement to benefits in cases of shared custody

(1)       If the parents of a dependent child—

(a)       Are living apart; and

(b)       Are both beneficiaries; and

(c)      Each has the primary responsibility for the care of that child for at least 40 percent of the time—

only the parent whom the chief executive is satisfied has the greater responsibility for the child shall be entitled to have that child taken into account by the chief executive in assessing that parent's entitlement to a benefit and the rate of benefit payable at any one time.

(2)       In deciding which parent has the greater responsibility for the child, the chief executive shall have regard primarily to the periods the child is in the care of each parent and then to the following factors:

1      P v Benefits Review Committee (2014) NZSSAA 92 at [22].

(a)      How   the   responsibility   for   decisions   about   the   daily activities of the child is shared; and

(b)      Who is responsible for taking the child to and from school and supervising that child's leisure activities; and

(c)      How decisions about  the education  or  health care of  the child are made; and

(d)      The financial arrangements for the child's material support;

and

(e)      Which parent pays for which expenses of the child.

(3)       If the chief executive is unable to ascertain that one parent has the greater responsibility for the child than the other, only the parent whom the chief executive ascertains was the principal caregiver in respect of the child immediately before the parents began living apart shall be entitled to have that child taken into account by the chief executive in assessing that parent's entitlement to a benefit and the rate of benefit payable.

(4)       If the chief executive is unable to ascertain which of the parents has the greater responsibility for the child or which of them was the principal caregiver before the parents began living apart, the parents shall agree between themselves as to which of them shall be entitled to have that child taken into account by the chief executive in assessing entitlement to a benefit and the rate of benefit payable; and until the parents reach agreement the child shall not be taken into account in assessing the entitlement to a benefit of, or the rate of benefit payable to, either parent.]

[4]      Because of the findings of fact already discussed, the Authority moved to s 70B(3) and reasoned as follows:

[24]     It is apparent that as a full time mother initially [Ms D] was the principal caregiver of the children when they were young.   The Authority considered whether or not she relinquished this role in the year prior to separation as her involvement in the business increased.   Her role in the children’s morning routine prior to separation is telling.  She was the person who was fussy about the children’s nutrition and clothing from which we infer that she was primarily responsible for these aspects of the children’s care.   She was also the person that took the children to the doctor.   The Authority’s understanding of the evidence given was that she was the person most likely to read to the children in the evenings.  Likewise it appeared that she was more involved in caring for the children at the weekends, although the Authority accepted that she worked some Sundays in the period immediately prior to separation.  The Authority was satisfied on the balance of probabilities that [Ms D] did not relinquish the role she had as the children’s principal caregiver when they were younger, in the period immediately prior to separation when she was playing a much greater role in the business.  As a result the Authority considered she was entitled to have the children included in her benefit when the issue arose in November 2013.

[5]      The Authority dismissed the appeal.

Case stated

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

(a)      Was there any evidence to support the Authority’s conclusion that neither   parent   had   greater   responsibility   for   their   children   in November 2013?

(b)Was  there  any  evidence  on  which  the  Authority  could  base  its conclusion that Ms D had not relinquished her role as the principal caregiver of the children prior to separation?

(c)      Did the Authority err in law in concluding that Ms D was the parent entitled to have the children included in her benefit?

[7]      At the commencement of the hearing of this appeal, I advised the appellant, P, that having read the file, including the submissions of the respondent, I did not think he had any chance of upsetting the decision made by the Authority.  Rather, that the problem lay in the fact that s 70B of the Social Security Act (which dates from October 1991) effectively requires the Chief Executive to designate one of the parents as the principal caregiver, even if the parents in fact are sharing equally in the care of the children.

[8]      P said he appreciated this and that the reason he had brought the appeal was to identify what he believes is an injustice, in the hope that Parliament might come to the  view  that  s  70B  is  now  out  of  date.    I allowed  him  to  address  the  Court accordingly:

P:        I have written a speech.  I’m here today to talk about an Act that was written 51 years ago and society has moved on from that, from 1964.  The reason why I’m here is because I believe the Act is outdated for today’s society.  A lot has changed in 51 years and it is time for the Act to be looked at for the future of society and would help parents.

I would like to challenge in today’s society the woes of family life.  How

many of us parents walk away because of hardship?  I look at myself and are

sure I am not alone after a family relationship breaks down.  I come from a large, strong family where we were brought up by my parents to believe that your family is the most important thing and to do everything you can for your kids.

I am very grateful for WINZ for giving me the DPB while going through a very tough time in my life - after losing my job and dealing with my father’s funeral - until I was successful in getting my job.

If I was to lose my job today, I would not be entitled to this and my children would lose me from their life.  While I was looking for work, I was offered employment in other towns but could not bear to have [son] and [daughter] in my life.  If I looked at my own financial situation, struggling to do what’s right for my kids.   Paying child support to the mother, I still supply accommodation, food, uniforms etc.  I have taken a lesser job so I can care for my kids.  I think it is great for kids to see that working fulltime and doing the best I can for them in the situation I am in and think that this situation for both me and their mother should be rewarded, not frowned upon.

Helping people to be in their kids’ lives on a daily basis, instead of in a home with a single benefit, not working and teaching them on a daily basis that they don’t have to go to work and stand up on their own.  Why wouldn’t we support this?  As I think it is the best solution for all – for children to have both parents in their life if they can’t all live together in the original family home.

I work in a third tier finance and see that people on the emergency benefit, as their partner or spouse is already claiming a DPB, and understand the complications of people claiming a benefit for the same children.  However, it seems to me that the policy was written to take in the lowest common denominator and not for commonsense.

I ask you please to think about the future of society and the normal family and what will be the normal family in society when it comes to all aspects of benefits and child support as well. Thank you for your time.

[9]      In the case of D v Chief Executive of the Ministry of Social Development,2

Allan J  of this Court heard a similar case stated whereby the context was that following a Family Court judgment, care of a child was rotated on a seven-day rotation.  Having examined s 70B and dealing with some other arguments which are not relevant here, the Judge concluded:

[40]     [Mr D] considers that [he] and Ms S, have from the outset, broadly shared their child-rearing responsibilities to the extent that they are equal caregivers. It is not difficult to understand the very real concerns which give rise to that submission. The difficulty is that Parliament has seen fit to enact legislation that places certainty above other considerations. Section 70B enacts a step down legislative scheme that produces outcomes based upon a consideration of certain defined factors. It does not permit an outcome under

2      D v Chief Executive of the Ministry of Social Development [2013] NZHC 1520.

which both parents are to be regarded as equal caregivers. If that is the position, and the Chief Executive is unable to conclude otherwise, then the parties must reach agreement as to which of them is entitled to have the child taken  into  account  for  benefit  purposes.  If  no  such  agreement  can  be reached, then neither caregiver is entitled to that advantage. That is simply the way in which Parliament has elected to deal with a difficult problem. On analysis, Mr D’s very real concerns arise from the statutory scheme and not, in my view, from the conclusion to which the Authority came. It simply applied s 70B correctly to facts it was entitled to find proved.

(Emphasis added.)

[10]     I  endorse  [40]  of  Allan  J’s  decision,  particularly  the  sentences  I  have emphasised.  His reasons also determine the present appeal.

Decision

[11]     This appeal is dismissed. There will be no order for costs.