Taylor v Attorney-General - [2021] NZSC 148

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 94/2021

[2021] NZSC 148

BETWEEN
LILLIAN ALICE TAYLOR

Applicant

AND

ATTORNEY-GENERAL (ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT)

Respondent

Court: William Young, Glazebrook and Williams JJ

Counsel:

Applicant in person

M J Bryant and S Deng for Respondent

Judgment:

4 November 2021

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application to amend the application for leave to appeal is granted.

C All other interlocutory applications are dismissed. D The application for leave to appeal is dismissed.
EThere is no order as to costs.

FA copy of this judgment is to be provided to the Ombudsman.

LILLIAN ALICE TAYLOR v ATTORNEY-GENERAL (ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT) [2021] NZSC 148 [4 November 2021]

REASONS

Background

[1] Ms Taylor has applied for leave to appeal the decision of the Court of Appeal dated 23 July 2021.1 There is considerable background to this application, and it will be useful to set it out in some detail.

[2] Ms Taylor is approaching her mid-70s. She suffers from a long-term physical disability. She receives Temporary Additional Support, which can, if needed, include an allowance for additional power costs incurred due to disability. Ms Taylor sought such an allowance. She advised the Ministry of Social Development (the Ministry) that her power costs for the year ending July 2013 were $1,845.38. In November 2013, the Ministry determined that Ms Taylor did not have any additional power costs attributable to her disability. On review, the Benefits Review Committee (BRC) increased this to a subsidy of 96 cents per week ($49.92 a year).

The 2015 Authority decision

[3] Ms Taylor appealed to the Social Security Appeal Authority (the Authority).2 The Authority considered three methods for calculating her additional power costs, but identified difficulties with all of them.3 One such method the Authority considered was to use the Powerswitch calculator. The Powerswitch calculator is a website operated by Consumer New Zealand that provides (among other things) a method for calculating average household electricity use. The Ministry had used it to estimate the ordinary cost of power for a one to two-person household in order to determine how much of Ms Taylor’s power costs were incurred due to her disability. The Authority noted it might be appropriate to reduce the Powerswitch estimate by 10 per cent to reflect a single-person household, and a further 5 per cent for other factors.4 But the Authority ultimately rejected this approach because it could not verify the figures used

1      Taylor v The Attorney-General on behalf of the Ministry of Social Development [2021] NZCA 329.
2      Re XXXX [2015] NZSSAA 24.
3      At [18], [22] and [24].
4      At [16]–[17].

by the Ministry.5 The Authority reassessed Ms Taylor’s additional disability-related power costs to be 15 per cent of her total power costs:6

In this particular case we consider the most appropriate option is to simply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZSC 148
Decision Date: 4 November 2021

CaseChat Overview and Summary

In the case of Taylor v Attorney-General, Lillian Alice Taylor, an elderly woman with a long-term physical disability, challenged the Ministry of Social Development's decisions regarding her Temporary Additional Support allowance for additional power costs. After a series of appeals and court proceedings, Taylor applied for leave to appeal the Court of Appeal's decision dismissing her appeal against the Ministry's allowance decisions.

The main legal issue the court had to decide was whether the Court of Appeal had made any error in law or fact that would warrant granting Taylor leave to appeal. The court also had to consider whether the Ministry's use of the Powerswitch calculator in determining additional power costs for disabled beneficiaries was appropriate.

The court found that the Court of Appeal's decision was correct, and there was no identifiable error of law or fact. The court dismissed Taylor's application for leave to appeal, noting that the core issue she raised had not been dealt with in previous courts and did not meet the criteria for leave. However, the court acknowledged that the Ministry's use of the Powerswitch calculator might be unsound, and if it reflected a wider systemic approach, steps should be taken to correct it.

In conclusion, the court granted Taylor an extension of time to apply for leave to appeal and allowed her to amend her application for leave. However, it dismissed all other interlocutory applications, and the application for leave to appeal was ultimately dismissed. There was no order as to costs, and a copy of the judgment was directed to be provided to the Ombudsman.

Orders