Taylor v Chief Executive of the Ministry of Social Development

[2016] NZCA 489

IN THE COURT OF APPEAL OF NEW ZEALAND

CA305/2016
[2016] NZCA 489

BETWEEN	LILLIAN ALICE TAYLOR Applicant
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	3 October 2016
Court:	Harrison, Asher and Brown JJ
Counsel:	Applicant in person and A Leslie as McKenzie Friend T M Bromwich and L Kean for Respondent
Judgment:	7 October 2016 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

BThe applicant must pay the respondent costs for a standard application for leave to appeal on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

1. The applicant, Lillian Taylor, is a New Zealand superannuant in receipt of Temporary Additional Support (TAS),[1] which includes an allowance for additional power costs.  When in November 2013 Ms Taylor reapplied for TAS, the Chief Executive of the Ministry of Social Development (the Chief Executive) determined that she did not have any additional power costs and, as a consequence, her TAS allowance was reduced by $5.00 per week.

   [1]Under the Social Welfare (Temporary Additional Support) Regulations 2005.

2. At Ms Taylor’s request the Chief Executive’s decision was reviewed internally and by a Benefits Review Committee, which allowed her $0.96 per week for the cost of running a clothes dryer as additional power costs.

3. Ms Taylor then appealed to the Social Security Appeal Authority (the Authority).  The Authority allowed the appeal and assessed Ms Taylor’s additional power costs to be 15 per cent of her total usage.  That equated to $276.80 annually, slightly more than the amount she had originally received.

4. Ms Taylor then appealed to the High Court under s 12Q of the Social Security Act 1964 (the Act) by way of case stated for the opinion of the court on a question of law.  The case stated by the Authority identified two questions of law:

   (a)As a matter of law was it open to the Authority pursuant to the provisions of reg 4 of the Social Security (Temporary Additional Support) Regulations 2005 and the provisions relating to disability costs contained in s 69C of the Act to fix the appellant’s additional power costs at 15 % of her total power use?

   (b)Was there any evidence to support the Authority’s conclusion that the appellant’s additional power costs should be fixed at 15 % of her total power costs?

5. Because Ms Taylor took issue with the form of these questions, Whata J approached the appeal on the basis of the stated questions but narrowed by reference to the following issues raised by Ms Taylor:[2]

   (a)The Authority’s failure to properly use the Powerswitch and savings calculator.

   (b)The Authority’s use, in arriving at a figure of 15%, of a method which is not recognised by law, i.e. not contained in the Authority’s Manuals and Procedures (MaP), and was not a method previously used by the Ministry of Social Development (the Ministry) in this case.

   [2]Taylor v Chief Executive of the Ministry of Social Development [2016] NZHC 1160 at [4]–[7].

6. Whata J answered both questions in the affirmative and dismissed Ms Taylor’s appeal.[3]  Ms Taylor now seeks leave to appeal to this Court on questions of law.

Appeal

[3]At [32] and [37].

1. On 30 June 2016 Ms Taylor filed an application for leave to appeal against the decision of Whata J.  That application, which did not specify questions of law, indicated that Ms Taylor sought an order that her usage of additional power should be correctly reassessed using the “Powerswitch savings calculator” (a tool used to estimate standard power costs) and in accordance with the MaP. 

2. Ms Taylor’s written submissions in support of her leave application proposed two questions of law:

   1.   As a matter of law and pursuant to section 5 of the Social Security Act 1964, was it open to the Respondent to use the Powerswitch Savings Calculator in a manner which would not produce the estimate required by the Minister?

   2.   As a matter of law and pursuant to sections 75 and 77 of the Social Security Legislation Rewrite Bill, was it open to the Respondent to claim discretionary rights in excess of those conferred upon them to include the ability to refuse, reduce or cancel a grant and to determine the manner of assessment and amount of payment?

3. Before us, Ms Taylor confirmed that the two issues set out at [5] above had correctly stated her position. While initially accepting that those two issues could be treated as the foundation for her leave application, she then revised her position stating that they were not the questions she sought to bring to this Court. Nor did she seek to pursue the questions of law stated in her written submissions.

4. Ms Taylor then restated her proposed questions in this way:

   (a)Whether the Authority (and the High Court by agreeing) had the discretion that the respondent claimed?

   (b)Whether the Authority (and the High Court) accurately provided an estimate of her extra power usage?

5. Ms Taylor elaborated that the High Court had failed to satisfy her as to how the figure of 15 per cent was arrived at, commenting that that figure was not able to be replicated or verified.  She further stated that if her application for leave was not permitted to proceed on the basis advanced, then she would wish it to be withdrawn.

Decision

1. As in the lower courts, Ms Taylor’s submissions before us focused on alleged errors in the Ministry’s approach, in particular with reference to the inputting of data into the Powerswitch savings calculator. 

2. However, as Ms Bromwich for the Chief Executive explained, the Authority did not assess Ms Taylor’s additional power costs on the basis of the Powerswitch calculator.  Rather, the Authority rejected a Powerswitch estimate as unreliable in Ms Taylor’s case and decided to take a different approach by identifying Ms Taylor’s specific needs and fixing an amount by reference to those needs.

3. We accept Ms Bromwich’s submission that there is no basis for contending that Whata J erred in finding that the Authority was not required to use the Powerswitch calculator to assess Ms Taylor’s additional power costs.  Indeed, we agree with Whata J’s conclusions at [32] and [37] of his judgment on the two issues raised by the case stated.[4]

   [4]Referred to at [4]–[5] above.

4. The questions which Ms Taylor proposed for consideration by this Court simply maintain her focus on what she asserts is the Ministry’s erroneous approach.  They do not constitute questions of law. 

5. Furthermore appeals to this Court under s 12R of the Social Security Act are governed by subpt 8 of Part 6 of the Criminal Procedure Act 2011, s 303(2) of which states that this Court must not give leave unless satisfied that:

   (a)the appeal involves a matter of general or public importance; or

   (b)a miscarriage of justice may have occurred or may occur unless the appeal is heard.

6. In our view neither the questions proposed by Ms Taylor, nor any of the other questions noted at [9] above, satisfies those criteria for leave.

Outcome

1. The application for leave to appeal is declined.

2. The applicant must pay the respondent costs for a standard application for leave to appeal on a band A basis together with usual disbursements.

Solicitors:
Crown Law Office, Wellington for Respondent