PA v Chief Executive of the Ministry of Social Development
[2013] NZHC 2345
•10 September 2013
ORDER PROHIBITING DISCLOSURE OF THE NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-485-799 [2013] NZHC 2345
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
PA Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 14 August 2013 Appearances:
Appellant in person
C Fleming for the RespondentJudgment:
10 September 2013
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 10 September 2013 at 1:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors: Mr A, Auckland
Ms C Fleming, Crown Law, Wellington
PA v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 2345 [10
September 2013]
[1] This is an appeal by way of case stated under s 12Q of the Social Security Act 1964 (the Act) against a decision of the Social Security Appeal Authority. The question of law is one of interpretation of a welfare programme established by the Minister for Social Development and Employment to provide financial assistance to people to participate in training and work-related skills development courses. It is known as the course participation assistance programme (the programme).
Background – the issue
[2] The appellant, Mr A, applied for a programme grant for the cost of applying for what is called an assessment of prior learning (APL). An APL may be defined as an assessment of the level of skill, knowledge and experience acquired by a person in a particular occupation through work in that occupation but without obtaining a formal qualification.
[3] Under the programme the respondent may make grants for, amongst other things, “fees for a course”. Mr A’s application for a grant for the cost of an APL was declined on the grounds that an APL is not a “course”. The respondent’s decision was upheld by a benefits review committee and then by the Social Security Appeal Authority. Any further appeal by Mr A is limited to an appeal to this Court under s 12Q of the Act by way of a case stated on a question of law.
[4] The Authority has stated a case with the question of law being as follows:
As a matter of law did the Authority err in determining that an assessment of prior learning was not a “course” and was not therefore something for which the Chief Executive was able to make a grant for the Course Participation Assistance Programme?
The facts as determined by the Authority
[5] The facts as determined by the Authority, recorded in the case stated, are as follows:
[4] The appellant and his wife are in receipt of Sickness Benefit.
[5] The appellant has a lifetime of experience in the engineering industry. He does not however have formal qualifications.
[6] Since suffering a head injury in 2009 in a work related accident he has been searching for ways to re-enter the workforce.
[7] The appellant has decided that his best prospects for employment would be to obtain a position as a tutor or a supervisor in the engineering industry. To do this he needs a recognised trade qualification.
[8] He has approached Competenz which is a recognised industry training organisation for assistance in achieving his goal. Competenz have advised him that they could carry out an assessment of his experience and from that work out whether there are any gaps in his knowledge which he might need to fill before he could be awarded a recognised qualification.
[9] The first step in the process of obtaining a qualification from the
appellant’s point of view is to have the assessment offered by Competenz.
[10] On 11 October 2011 and 8 November 2011 the appellant verbally sought assistance with the cost of the Competenz assessment of $632.50. He was advised verbally that the Ministry could not provide him with the assistance he sought.
The Authority’s decision on the point of law
[6] The Authority noted that the respondent can only provide financial assistance in accordance with law, and in this case as authorised by a welfare programme established and approved by the Minister under s 124(1)(d) of the Act. The Authority considered provisions in the gazetted programme approved by the Minister, including a definition of the word “course”. I discuss the provisions below. The Authority also referred to the definition of “course” in the Concise Oxford English Dictionary – “a series of lectures or lessons on a particular subject”.
[7] The Authority summarised its conclusions in the case stated as follows:
[24] In the context of the Course Participation Assistance Programme the term “course” means a series of lectures and lessons aimed at imparting new or enhanced knowledge or skills to a participant.
[25] An assessment on the other hand is aimed at establishing the current state of knowledge of the person being assessed. After assessment the appellant will not have new or improved skills. Rather he will have a clearer picture of what courses he needs to undertake to achieve his employment goal.
[26] The Authority was not satisfied that … the proposed assessment by Competenz constitutes a course. Financial assistance is not therefore available to the appellant under the Course Participation Assistance Programme.
Mr A’s submissions on appeal
[8] Mr A, representing himself, presented his submissions with care and competence. However, as I indicated to Mr A, a number of his submissions, and other information provided, extend beyond the scope of this appeal, because the appeal is limited to the question of law in the case stated. For this reason I will not address the various matters raised by Mr A which are beyond the scope of this appeal. This is not because I have reached any conclusion on the merit of these various matters but because the jurisdiction of this Court is limited to points of law.
[9] On the point of law – is an APL a “course” covered by the programme – the essence of Mr A’s central submission was directed to the APL for which he now wishes to seek a grant from the respondent. This is an APL offered by the Manukau Institute of Technology. This is not the APL in respect of which Mr A made his original application. However, it will assist to refer to the APL offered by the Manukau Institute to explain Mr A’s central submission.
[10] The Manukau Institute offers courses in engineering. Mr A believes that his lifetime of practical experience in the engineering industry means that his level of knowledge and expertise is such that he could commence the Manukau Institute course for a certificate in mechanical engineering at level 4, saving time and cost in completing levels 1 to 3. As I understand it, the Institute will (or may) allow Mr A to start at level 4 provided, on an assessment of Mr A’s prior learning, the Institute is satisfied that he already has the knowledge and skills to start at level 4. In simple terms, Mr A needs to pass a form of examination in order to start at level 4. The assessment of prior learning by the organisation Competenz, referred to in the Authority’s findings of fact, is essentially the same process.
[11] Against this factual background Mr A submitted that an assessment of prior learning is, as he put it, “a course requisite” and therefore any related fees would effectively be a component of total course fees.
Discussion
[12] The answer to the question of law turns on interpretation of relevant provisions in the programme established and approved by the Minister. The relevant provisions are as follows:
3. Purpose—The purpose of this programme is to assist people to participate in training and work-related skills development courses by removing financial barriers to participation.
4. Interpretation—(1) In this programme, unless the context otherwise requires:
…
course means a training or work-related skill development course or programme, being:
(a) a course provided under the Cabinet Guidelines for
Employment Assistance; or
(b) a course that the chief executive determines is analogous to courses provided under the Cabinet Guidelines for Employment Assistance;
grant means a course participation assistance grant, being the special assistance under this programme;
…
9. Course participation grants—(1) The chief executive may, in his or her discretion, make one or more grants towards an applicant’s costs for any of the following:
(a) Tuition and enrolment fees for a course; (b) transportation to and from a course;
(c) the care of dependent children, care of people with disabilities, or care of elderly people during participation in a course.
[13] I am satisfied that there was no error of law by the Authority in concluding that an APL is not a course covered by the programme. The definition of “course”, by itself, is largely determinative of the answer. The definition narrows the meaning that the single word “course” might otherwise have. For this reason dictionary definitions may not be of great assistance. The activity in respect of which assistance is sought must, by definition, involve training or work-related skills
development. An APL involves neither. It is, in effect, an assessment of training already undertaken or of skill development already achieved.
[14] Provisions such as those contained in the programme should not be interpreted in a way which is unduly literal, but the interpretation in the preceding paragraph is not unduly literal. As required by the Interpretation Act 1999, s 5(1), the meaning of an enactment must be ascertained from its text and in the light of its purpose. The interpretation from the text of the definition is consistent with the purpose of the programme. This is because the statement of purpose is in the same terms and makes clear that the nature of a course for which there can be financial assistance is an activity which actually involves training or work-related skills development.
[15] I have given careful consideration to Mr A’s submission to the essential effect that the APL is a cost related to a course because the APL, in essence, is the first step to enable him to undertake the level 4 engineering course, with that course clearly coming within the words of the definition in relation to in particular work-related skills development. This approach would require the APL process to be merged into the level 4 programme as if it were part of it. This strains the interpretation of the words actually used beyond any reasonable interpretation that the words can bear. The words in the programme are used in a straightforward way with a readily understood meaning.
[16] The distinction between the APL and a “course” can be illustrated by using the Manukau Institute example, including some assumptions solely for the purposes of illustration. If Mr A started at level 1 at the Institute and proceeded through to completion of level 3, it might be assumed that there would be some form of final assessment which would record in a formal way that he had qualified at level 3. He would presumably need this if he wished to proceed to level 4. But the certification of completion of level 3 is the final part of level 3; the formal acknowledgement of the attainment of level 3 skills and knowledge. It is not the first part of level 4. The certification on completion of level 3 through tuition is the equivalent of an APL recognising the years of practical learning and experience.
[17] The interpretation to this point is reinforced by clause 9 of the programme. This prescribes the types of costs for “courses” which may be the subject of a grant. Paragraphs (b) and (c) of clause 9(1) have no application in this case. The grant Mr A seeks would therefore have to come under clause 9(1)(a) – “tuition and enrolment fees for a course”. This provision is conjunctive, not disjunctive – a grant may be made for tuition together with any enrolment fees required for the course of tuition, but not for enrolment fees alone. Mr A is not seeking a grant to cover the cost, or to go towards the cost, of tuition and any enrolment fee for the purpose of undertaking the tuition. He is in fact seeking a grant to avoid tuition; he seeks a grant for an APL in order to avoid tuition at levels 1 to 3. For reasons already discussed, the fee for the APL cannot be regarded as an “enrolment fee” for a course of tuition.
Broader considerations
[18] In coming to this conclusion, based on interpretation of the words used and the purpose of the programme, I have not overlooked Mr A’s submission that what he is wanting to do will save expense. This is because the alternative to completion of the APL, enabling direct entry into level 4, will be to start at level 1 and proceed through level 4 at a cost likely to be well in excess of the cost of the APL. This submission was a reasonable and understandable one to make. The force of it, in a general sense, was recognised by the Authority which said, at the conclusion of its decision:
[29] It is unfortunate that there appears to be no other form of assistance offered by the Ministry of Social Development available for the appellant to achieve his employment goal. We accept that his “stress” related problem may well stem from his current employment situation and that his wish to pursue training in an area in which he has expertise already is not unreasonable.
[30] The appellant seems to be faced by the proverbial chicken and egg situation. As a beneficiary he cannot afford an assessment, but without an assessment no determination can be made about what course he might need to do to obtain a formal qualification leading to employment.
[31] We are in no doubt that the appellant would like to be in suitable employment. We urge the Ministry to work with the appellant to explore the options available to him to assist him in achieving his goal.
[19] For the respondent, Ms Fleming also acknowledged that there may be a gap in the provisions for the programme. However, this is not something which can be
addressed by the Court or could have been addressed by the Authority. In some limited circumstances, where there has been an obvious mistake in the drafting of an enactment, a Court may be able to add or remove words to correct the mistake. However, the point arising on this appeal is far removed from circumstances of that nature. Any extension of the programme to cover costs such as those involved in an APL could only be by direction of the Minister.
Result
[20] The answer to the question of law posed in the case stated is “no”.
Woodhouse J
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