Taylor v Social Security Appeal Authority - [2019] NZHC 1718

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002129

[2019] NZHC 1718

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

an examination of the accuracy of the methodology and practices used by the Ministry of Social Development in their

calculation of Temporary Additional Support

BETWEEN

LILLIAN ALICE TAYLOR

Applicant

AND

THE SOCIAL SECURITY APPEAL AUTHORITY

First Respondent

Respondents continued over

Hearing: 9 May 2019

Appearances:

L A Taylor (Self-represented Applicant) in Person M Bryant for the First to Third Respondents

H L Stanford for the Fourth Respondent
J W S Baigent and E A Keall for the Fifth Respondent

Judgment:

22 July 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 22 July 2019 at 11.00 am pursuant to r 11.5 of the High Court Rules.
Deputy Registrar

Counsel: R J B Fowler, Wellington
Solicitors: Crown Law, Wellington
DLA Piper New Zealand, Wellington Simpson Grierson, Auckland

Copy To: L A Taylor, Whangamata

TAYLOR v THE SOCIAL SECURITY APPEAL AUTHORITY [2019] NZHC 1718 [22 July 2019]

THE MINISTER OF SOCIAL DEVELOPMENT
Second Respondent

THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT
Third Respondent

CONSUMER NEW ZEALAND INC
Fourth Respondent

THE CHIEF OMBUDSMAN
Fifth Respondent

[1] Ms Taylor has commenced judicial review proceedings against each of the five respondents (referred to as the “Authority”, “Minister”, “Ministry”, “Consumer NZ”, and “Ombudsman” respectively). Ms Taylor’s complaints against each of these respondents are wide-ranging, but at the heart of them is a concern about the methodology used to calculate her Disability Allowance and Temporary Additional Support payments, and in particular, her additional power costs.

[2] Each of the five respondents seek orders striking out Ms Taylor’s claims against them. They argue that the decisions or exercises of power identified by Ms Taylor are either not amenable to judicial review or have already been the subject of litigation in the High Court and Court of Appeal. The Ombudsman argues that the claim for judicial review against him is precluded by ss 25 and 26 of the Ombudsmen Act 1975.

[3] In this judgment, I decide that it would be premature to strike out all of Ms Taylor’s claims against the Authority and the Ministry. Judicial review enables courts to supervise the exercise of powers to ensure they are in accordance with the law. Ms Taylor should be afforded a chance to hold the Ministry to account in the way it calculates her allowances, and to challenge the Authority’s approach to her appeal.

[4] However, the claims against the Minister, Consumer NZ, and the Ombudsman should be struck out as those respondents have not taken steps which may be challenged by way of judicial review, or statutory provisions preclude that challenge. My reasons for those determinations now follow.

The issue in dispute

[5] Ms Taylor is a 72-year-old self-represented litigant. She has a background in accounting and banking and took some law papers at University where…

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: [2019] NZHC 1718
Decision Date: 22 July 2019

CaseChat Overview and Summary

Ms Taylor commenced judicial review proceedings against five respondents: the Social Security Appeal Authority, the Minister for Social Development, the Ministry of Social Development, Consumer New Zealand, and the Ombudsman. Ms Taylor’s claims are wide-ranging and concern the calculation of her Disability Allowance and Temporary Additional Support payments, particularly in relation to her additional power costs. The respondents seek to have Ms Taylor’s claims struck out on the basis that they are not amenable to judicial review, have already been the subject of litigation, or are precluded by statutory provisions. Ms Taylor’s claims against the Minister, Consumer New Zealand, and the Ombudsman were struck out as the respondents had not taken steps that may be challenged by way of judicial review, or statutory provisions precluded that challenge. However, Ms Taylor’s claims against the Authority and the Ministry were not struck out in their entirety. The court found that it would be premature to strike out Ms Taylor’s claims against the Authority and the Ministry as it is open to Ms Taylor to challenge the Authority’s approach to her appeal, and to hold the Ministry to account in the way it calculates her allowances. The court ordered Ms Taylor to file an amended pleading by a specified date, and noted that she may wish to consider obtaining legal assistance with progressing her claim.

The court held that Ms Taylor’s claims against the Minister, Consumer New Zealand, and the Ombudsman should be struck out. The Minister’s letter to Ms Taylor did not evidence the exercise of a power that is amenable to judicial review, and any complaints about the Ministry’s calculation of Ms Taylor’s allowances should be directed at the Ministry. Consumer New Zealand’s ownership of the Powerswitch website does not give rise to a reviewable decision, and the Ombudsman’s decision not to investigate Ms Taylor’s complaint is protected from review by the Ombudsman Act 1975. Ms Taylor’s claims against the Authority and the Ministry were not struck out in their entirety, as the court found that it would be premature to do so. Ms Taylor should be afforded an opportunity to challenge the Authority’s approach to her appeal, and to hold the Ministry to account in the way it calculates her allowances. However, claims relating to previous determinations already considered by the Authority and the courts were struck out as an abuse of process. The court ordered Ms Taylor to file an amended pleading by a specified date, and noted that she may wish to consider obtaining legal assistance with progressing her claim.

Orders