T v Chief Executive of the Ministry of Social Development

[2018] NZHC 2776

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE APPLICANT UNTIL FURTHER ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-59 [2018] NZHC 2776

UNDER

the Social Security Act 1964 and the Judicial

Review Procedure Act 2016

IN THE MATTER OF

a decision or decisions by the Ministry of Social Development (‘MSD’) relating to a client in a ‘remote client unit’ (‘RCU’)

BETWEEN

T Plaintiff/Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Defendant/Respondent

Hearing:	24 October 2018
Appearances:	Plaintiff/applicant in person (via AVL) P H Courtney for defendant/respondent
Judgment:	26 October 2018

RESERVED JUDGMENT OF DOBSON J

[1]      The applicant for judicial review in this proceeding suffers from chronic cryogenic urticaria, a dermatological condition likened to having hives affecting the

whole of the sufferer’s body.

T v CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 2776 [26 October 2018]

The present application

[2]      This judgment deals with his application for an interim injunction.   The applicant seeks an order requiring the respondent to resume payment of benefits to him under the Social Security Act 1964 (the Act) until substantive determination of the judicial review and also a final determination of certain appeals the applicant presently has in train before the Social Security Appeal Authority (SSAA).

[3]      The applicant has sought interim name suppression which is not opposed at this  stage  of the  judicial  review proceeding.    I  accordingly  grant  interim name suppression. Permanent name suppression is to be reviewed at the substantive hearing.

[4]      The history of the applicant’s assessments for various benefits, including medical certificates relied on by the respondent’s employees (the Ministry), is incomplete.    Ms Courtney  explained  that  the  affidavit  for  the  respondent  from

Ms Jennifer Allan,  a  senior  adviser  in  the  deputy  chief  executive’s  office,  had necessarily been compiled at very short notice when urgency was granted for the interim  injunction  hearing.    I  gave  the  applicant  and  Ms Courtney  free  rein  in explaining factual matters to me in the course of their respective submissions.  That included receiving copies of correspondence that might reasonably have been expected to be exhibited to an affidavit.

[5]      The applicant has dealt with the issues partly himself, but with the assistance of Mr Ord as counsel retained on a legally aided basis, despite Mr Ord’s absence from New Zealand.  I allowed the applicant to speak to submissions that had been filed remotely by Mr Ord.

Background

[6]      Following changes to the form of benefits in mid-2013, the applicant no longer received an invalid’s benefit and was instead paid a supported living payment from that time until August 2018.   With the inclusion of a winter energy payment and disability allowance, he was receiving $345.36 per week at that time.

[7]      In 2014, the applicant was trespassed from Work and Income sites.   The Ministry’s records include a history of vexatious, intimidating and aggressive behaviour towards Ministry staff.  The Ministry’s concerns about him are challenged by the applicant, but it is impossible to form any reliable view on the justification for his being trespassed at this stage.  I note that the applicant’s behaviour is such that he has also been trespassed from Court registry offices except for pre-arranged attendances, such as his appearance on the present application by way of AVL.

[8]      The consequence of the applicant being trespassed is that he has since been dealt with through the Ministry’s Remote Client Unit (RCU). The RCU is maintained by the Ministry to deal remotely with clients who pose a high risk to the safety of frontline Ministry staff.  This involves all interactions being conducted by telephone, facsimile, mail or email.

[9]      In August 2018, the Ministry perceived it necessary for a further medical certificate to be provided to justify continued payment of the supported living payment. None was forthcoming. The Ministry then ceased payment of the supported living payment in August 2018. At that time, it transferred the applicant to a jobseeker support payment, which totalled $291.55 per week.

[10]     Shortly thereafter, by letter dated 10 September 2018 the Ministry advised the applicant that the jobseeker support payment would continue until 25 September 2018. Beyond that date, the applicant would need to be available for and seeking work, or provide an appropriate medical certificate.  From the applicant’s perspective, these steps were taken without any communication with him prior to the 10 September 2018 letter.

[11]     In  November  2016,  the  applicant had  procured  a  work  capacity  medical certificate, which certified he was not expected to have a capacity to work within two years and that his capacity to work would remain unchanged.  On the terms of the certificate as completed on a Work and Income form, the applicant argued that it was reasonable for him to treat it (in the absence of a change in his condition) as a sufficient medical certificate to rely on for continuation of the supported living payment until November 2018.

[12]     The applicant cites additional frustrations in having to deal remotely with Ministry staff processing his benefit entitlements in order to pursue what he perceives to be his entitlements.  Ms Allan’s affidavit, completed to provide an overview of the Ministry dealings with the applicant, contests his criticisms about delays in returning his phone calls. The Ministry’s records suggest that the applicant’s messages to RCU are responded to within 24 hours, and that it takes multiple calls to make contact with the applicant.

[13]     The urgent predicament the applicant wants addressed by the Court is caused by a combination of two matters.  First, the Ministry’s decision to cease all payments to him. Secondly, his difficulties in communicating with the Ministry to question the requirements for a jobseeker medical certificate.  On the applicant’s view, he ought still to be entitled to a supported living payment in reliance on the November 2016 medical certificate.

[14]     From the applicant’s perspective, he cannot get to see an appropriate medical practitioner without the money to pay for a certificate. Further, the Ministry’s conduct in altering and then terminating benefit payments leaves him without the resources to either get the certificate or effectively question the sequence of decisions made by the Ministry that have resulted in his present position. The applicant can seek a review by the SSAA of the decision to end payment of the jobseeker support.  However, that process cannot provide relief sufficiently promptly to enable him to resolve the more appropriate form of any medical certificate that should be obtained, and to pay a medical practitioner qualified to provide it.

The Ministry’s response

[15]     The Ministry explains its conduct in very different terms. As a result of issues arising in the SSAA proceedings described below, on 5 April 2018 the applicant was seen by Associate Professor Ameratunga, an immunologist specialising in allergies. The consequences of that consultation included a work capacity medical certificate completed by Professor Ameratunga, which assessed the applicant as being able to regularly undertake more than 15 hours and fewer than 30 hours’ work per week.  A

report produced on the same day described his condition as one that was likely to “wax and wane before remitting”.

[16]     On 26 July 2018, the RCU wrote to the applicant advising that it was time to review how his health condition impacted on his capacity to work. The letter directed the applicant to provide recently completed medical reports from specialists, assessments from Needs Assessment Service Co-ordination agencies, or a Work and Income medical certificate completed by his doctor.   The RCU required this information by 27 August 2018, otherwise his supported living payment would stop.

[17]     There was no response to the 26 July 2018 letter.   The RCU wrote to the applicant again on 30 August 2018 advising that the supported living payment had been stopped from the previous day, 29 August 2018, and requesting provision of one of the three types of document also asked for in the 26 July 2018 letter.  The letter advised that the applicant should let the RCU know if he could not provide any of that information, or if he wanted to see one of the Ministry’s designated doctors. The steps described in [10] above followed.

[18]     The applicant denies receiving either the 26 July or 30 August 2018 letters and questions whether they were ever despatched. He advises that the 10 September 2018 letter from the Ministry took a week to get to him. He had a stable residential address throughout this period and acknowledges no difficulties with postal deliveries in other respects, instancing routine receipt of all correspondence from his lawyer.

Existing SSAA proceedings

[19]     The applicant is pursuing two appeals to the SSAA against earlier decisions of the Ministry to decline various applications for financial support.  In one of these, the applicant sought assistance for travel to, and the cost of, an appointment with specialist dermatologists  in Whanganui  and  New Plymouth.    In  the  second,  the  applicant challenges  the  Ministry’s refusal  to  meet  the  costs  of antihistamine  medication, specialist appointments relating to his condition, general practitioner visits, and laundry services.

[20]   In two interim decisions of the SSAA, there has been provisional acknowledgement of the applicant’s criticisms of his treatment by the Ministry.  The SSAA considers that the Ministry has dealt unsatisfactorily with the applicant, and that inappropriate conclusions have been reached about his medical needs by persons who are unqualified to do so.   The SSAA criticises the Ministry for responses to the applicant that are “not calculated to resolve issues in a satisfactory or cost-effective manner, and will likely lead to ongoing costly disputes”.1

[21]     The present application for judicial review is brought on the premise that it is unreasonable for the Ministry to make adverse decisions about the applicant’s entitlements whilst his appeals before the SSAA remain unresolved.  The applicant perceives interim directions from the SSAA requiring the Ministry to deal with him more co-operatively as a potential source of relief from the adverse decision to terminate the jobseeker support benefit he was receiving.

[22]     On the terms of its interim decisions, the gravamen of the applicant’s present complaint appears unlikely to be addressed by the scope of issues before the SSAA. The applicant challenges the Ministry’s grounds for, first, changing the form of benefit that he was previously paid up to August 2018 and, secondly, terminating the more recent form of benefit on the ground of lack of updated appropriate medical certificate in September 2018. The indirect impact of possible success with the SSAA appeals is that the Ministry could be directed to fund doctors’ visits for the applicant, thereby enabling him to procure a medical certificate that could provide grounds for reinstatement of one or other form of benefit. Arguably, if that point is reached, then the Ministry ought to have funded the requisite medical attendance in a timely way to enable continuation of payments.  Instead, the Ministry has ceased payments on the basis of the lack of such a certificate.

[23]     In acceding to the applicant’s request for urgency in dealing with the interim injunction application, the matter is appropriately dealt with on a basis that permissible amendments to the grounds for challenge might reasonably arise.  The conduct on behalf of the Ministry at issue includes its decision to cease the supported living

1      Re T [2018] NZSSAA 022 at [19].

payment. On the applicant’s version of events, because he did not receive the 26 July and 30 August 2018 letters, the Ministry’s decision-making progressed without his knowledge and without any opportunity for him to have input.

[24]     Ms Courtney  was  muted  in  the  level  of  scepticism  she  suggested  at  the applicant’s claim that he had not received those important communications.   I recognise reasonable grounds for scepticism, but cannot make an adverse factual finding rejecting the applicant’s claims of non-receipt of the letters at this interim stage.

[25]     The prospects of a successful application for judicial review are to be assessed on the basis that the applicant would have wanted to challenge the Ministry’s reliance on Associate Professor Ameratunga’s opinion, and to challenge the validity of his certificate. Grounds for challenge include:

•   first, the certifier’s confirmation that he had discussed its content with the applicant when the applicant denied there was any such discussion; and

•   secondly, as a consequence, the termination of benefit payments had been instituted before the applicant had any reasonable opportunity to challenge it.

[26]     The applicant claims his consultation with Associate Professor Ameratunga related only to the extent of justified medication, which was an issue in the SSAA appeal that caused him to be referred to the specialist.  He claims that there was no mention of any assessment of his capacity to work, and that Associate Professor Ameratunga has been improperly pressured by the Ministry to express an opinion adverse to the applicant.

[27]     The matter is further complicated by evidence suggesting that the applicant has also got offside with medical personnel to an extent that he has significantly reduced the options for appropriately qualified doctors prepared to provide a medical certificate.  This suggests the Ministry could respond to criticisms by submitting that the difficulties have been brought on the applicant by his own conduct.  At its core,

however, there remains an issue of his inability to pay for a medical assessment that the Ministry perceives is a necessary pre-condition to continuation of benefit payments, but for which it will not pay. The SSAA may direct that it should.

[28]     There is no evidence thus far as to whether the applicant’s medical condition contributes to involuntary bouts of anti-social or threatening behaviour when under stress, of the type recognised in Tourettes’ sufferers.

Relief not available

[29]     The response to the interim injunction application on behalf of the respondent rests initially on the classic proposition that the relief sought is a form of mandatory injunction which is not available against the Crown.  In short, the Ministry cannot be compelled by court order to make payments that it has decided ought not to continue. On the substantive merits, Ms Courtney emphasised that the Ministry was discharging its statutory obligation to be satisfied that a beneficiary remained entitled to any benefit being received.  She submitted it was either necessary or at least reasonable for the Ministry to respond to Associate Professor Ameratunga’s opinion about the applicant’s capacity to work between 15 and 30 hours per week.  Further, the process adopted in all the correspondence and steps taken by the Ministry were entirely reasonable and within its statutory powers.

[30]     In   her   careful   submissions,   Ms Courtney   acknowledged   the   potential qualification to the classic position limiting forms of relief addressed by the Court of Appeal in Taylor v Chief Executive of the Department of Corrections.2   In the context of a challenge to a decision by the Department of Corrections to no longer permit supervised visits to the prison by a prisoner’s daughter, the Court of Appeal recognised the prospect of the Court issuing orders in mandatory terms against Crown entities. The prospect was seen as relatively rare and unlikely where countervailing considerations existed against the Court forcing Crown agencies to take positive steps:

[26]      … There are strong policy reasons against a court making mandatory interim orders or declarations requiring positive action.  Such orders may not be able to be monitored, may require interaction between parties who are at

2      Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR

112.

arm’s length, and may involve inappropriate intervention by the court in decisions about the best use of scarce resources or the balancing of delicate priorities which are best left to the discretion of the responsible authorities.

[31]     In this case, the need for a mandatory order arises (on the applicant’s version of events) because of the relatively short periods between the applicant being on notice of the Ministry’s request for a fresh medical certificate, the absence of provision of that certificate, and termination of all benefit payments to him.  If that sequence had progressed more slowly, then proceedings might have been brought seeking a more conventional interim order preventing the Ministry from giving effect to its decision to cease payments, pending substantive determination of the application for judicial review. Further, if the SSAA appeals had been resolved in the July to September 2018 period, the Ministry may have been directed to fund doctors’ visits, the absence of funding for which is causing at least part of the applicant’s dilemma.

[32]     A mandatory  direction  to  reinstate  payments  has  relatively  modest  fiscal consequences for the Crown. There is a highly unusual combination of circumstances where the applicant has had unsatisfactory dealings with the RCU, complains that he did not receive two critical letters addressing the Ministry’s intention to review his medical status, and has had a measure of recognition of his complaints by the SSAA. Therefore, interlocutory relief confirming the arguable unlawfulness of termination of benefit payments cannot stand as a precedent in other challenges to the Ministry’s actions. The question is whether the applicant’s circumstances in the present case are sufficiently unusual to justify a mandatory form of relief on an interim basis.

[33]     Ms Courtney confirmed that if I found the applicant entitled to any measure of relief on an interim basis, an injunction literally in mandatory terms would be unnecessary.  The Ministry would comply with a declaration, issued on an interim basis, that confirmed an entitlement to resumption of benefit payments for the purposes of preserving his position. Ms Courtney suggested that any such declaration ought to be tightly limited as to time, so that the payment obligation lasted for, say, no more than a month.

Result

[34]     The present application has been brought on as a matter of urgency and needs to be determined urgently.   On the state of the matters as argued before me, the applicant is entitled to an interim declaration in terms that the Ministry’s conduct in relation  to benefit  payments  since April  2018  is  vulnerable  to  challenge  for  its lawfulness and/or breaches of natural justice obligations, to an extent that requires temporary restoration of the jobseeker support payments as most recently paid to him in September 2018.  The entitlement to a resumption of payments is to last only so long as is necessary for an appropriate medical certificate to be obtained and provided to the Ministry, or, if earlier, the prompt resolution of the substantive judicial review, which is to be pursued by the applicant as promptly as possible.   In any event, payments are not to continue for any longer than three months from their resumption. This obligation is prospective from the date of delivery of this judgment and does not include any retrospective payments for the period in which the benefit was not paid.

[35]     Leave is reserved to the Ministry to apply for further directions in the event that those two events are not progressed as might reasonably be contemplated.

Costs

[36]     The issue of costs is reserved pending substantive determination.  This is in material part because the tenability of the applicant’s claim not to have received critical correspondence from the Ministry is unable to be tested at this stage, and may well not be made out at the substantive hearing.

Dobson J

Solicitors:

Rob Ord, Nelson for applicant

Crown Law, Wellington for respondent