Taylor v Social Security Appeal Authority
[2019] NZHC 1718
•22 July 2019
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 RespondentJudgment:
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 she received a Bachelor of Social Sciences. She suffers from Osteoarthritis and Chronic Bronchitis. In addition to her superannuation, receives an Accommodation Supplement, Disability Allowance, and a weekly Temporary Additional Support payment.
[6] The Disability Allowance and Temporary Additional Support payments are made by the Ministry under the Social Security Act legislation and regulations. Ms Taylor’s payments were calculated under the Social Security Act 1964. That Act has since been repealed by the Social Security Act 2018. The legislative provisions relating to the calculation of Ms Taylor’s allowances are convoluted. Assessment involves being directed to numerous legislative provisions and definitions and working through the stated exceptions and exclusions. There are further layers of Ministerial directions, regulations, and Ministry manuals and procedure documents that set out how the Ministry is to exercise the discretion in calculating these payments. The complexity of that legislative regime forms the backdrop against which Ms Taylor’s judicial review application is to be assessed.
[7] The Disability Allowance is payable to a person who has additional expenses arising out of a person’s disability and existing assistance is insufficient to meet those expenses. Ms Taylor’s claim primarily relates to her additional power costs incurred as a result of her disability.
[8] A Temporary Additional Support payment provides temporary financial assistance to alleviate the financial hardship of people whose essential costs cannot be met from their chargeable income and other resources. A Temporary Additional Support payment may be used to meet power, transport or accommodation costs, amongst others. Additional costs above the entitlement for a Disability Allowance may be included as allowable costs for a Temporary Additional Support payment.
Events leading up to first High Court case
[9] The genesis of Ms Taylor’s claim goes back to November 2013. At that time, the Ministry determined that Ms Taylor's total annual power cost was below the average cost for a similar-sized household, and therefore she was not incurring additional power costs arising out of her disability. Ms Taylor’s power cost allowance, which had been $5 per week, was removed from the calculation of her Disability Allowance. That resulted in a reduction of the Temporary Assessment Support payment also.
[10] The November 2013 determination was made using the “Powerswitch” website calculator. Consumer NZ owns and operates the Powerswitch website calculator. It is a free online tool that assists consumers to compare power companies and pricing plans using a database of electricity and gas prices. The Ministry uses this calculator to assess the average power cost for households. That figure is then compared to a beneficiary’s actual power costs to assess whether there are additional power costs arising out of a beneficiary’s disability.
[11] Ms Taylor sought a review of the November 2013 determination. The Benefits Review Committee subsequently varied the decision of the Ministry and allowed an amount of $0.96 per week for the cost of running a clothes dryer as additional power costs.
[12] Ms Taylor appealed this decision to the Authority. The Authority’s decision was issued on 17 April 2015 (Authority’s April 2015 decision1). The Authority accepted that Ms Taylor was a person who may need additional power because of her disability. The issue was how her additional need should be measured. The Authority noted that such an assessment was not a simple matter and in most cases the assessment could only be an estimate at best. The Authority then reviewed the three different methods used to calculate the power allowance as follows:2
(i)Using the Consumer Powerswitch website the Ministry looks at the average cost for similarly sized households using similar appliances and heating, and compares the costs shown on the website with the beneficiary’s actual power costs. This was the mechanism used in this case.
(ii)The second mechanism is to enquire about what specific appliances the beneficiary uses and consider how that use might be over and above what a person without the particular disability might consume.
(iii)From time-to-time, in the past the Ministry have simply agreed that a lump sum per week should be allowed to cover a beneficiary’s additional power costs.
1 An appeal against a decision of the Benefits Review [2015] NZSSA 024.
2 At [14].
[13] After reviewing the advantages and disadvantages of each method, the Authority concluded that the third method of assessing additional power costs was most appropriate in Ms Taylor’s case. The additional power costs were to be calculated by assessing a percentage of Ms Taylor’s actual power use, and the Authority settled on 15 per cent of total usage as appropriate in Ms Taylor’s case. This amounted to a total of $276.80 per annum. The Authority said that Ms Taylor’s additional power costs “…for the 52 weeks commencing on 8 November 2013 are to be assessed on this basis and included as a disability cost in the assessment of her entitlement to Temporary Additional Support”.3
[14] Ms Taylor appealed the Authority’s April 2015 decision to the High Court in 2016. The appeal proceeded by way of case stated on two questions of law. The first question was whether it was open to the Authority to fix Ms Taylor’s additional power costs at 15 per cent of her total power use. The second question was whether there was any evidence to support the Authority’s conclusion that Ms Taylor’s power costs should be fixed at 15 per cent of her power use. Those two questions were narrowed by reference to issues raised by Ms Taylor in relation to the use of the Powerswitch calculator and whether the methodology used by the Authority was one recognised at law.
[15] Whata J dismissed the appeal in a judgment dated 1 June 2016.4 His Honour found that the Authority made no error in law or in fact in fixing the disability allowance at 15 per cent of total use. He also found that the Court was limited in its ability to challenge the Authority’s use of discretion to calculate her disability allowance, and there was nothing obviously wrong about its conclusion.
[16] Ms Taylor’s application for leave to appeal the decision of the High Court was subsequently declined by the Court of Appeal.5
3 At [24].
4 Taylor v The Chief Executive of the Ministry of Social Development [2016] NZHC 1160.
5 Taylor v Chief Executive of the Ministry of Social Development [2016] NZCA 489.
Events post the High Court decision
[17] Ms Taylor’s Temporary Allowance Support payment was reviewed again in 2016. On 29 September 2016, her additional power costs were removed from the calculation of her Disability Allowance payment. The Ministry determined that Ms Taylor was not using more electricity than the ‘normal’ group she was being compared with in the Powerswitch calculator.
[18] Ms Taylor applied to the Benefits Review Committee for a review of that decision. The Ministry acknowledged it had made an error in its earlier assessment and re-assessed Ms Taylor’s entitlements in accordance with the 15 per cent of total usage methodology adopted by the Authority in 2015 and upheld by the High Court and Court of Appeal. That decision was communicated to Ms Taylor in letters dated 31 October 2016 and 22 November 2016. In the latter letter, the Ministry said:
As you have already indicated that you do not consider that this change would settle the matter your review application will continue to the Benefits Review Committee for a hearing. You will need to show that there has been a change in your circumstances which makes the assessment in power costs in your current situation different to your situation as dealt with in the Social Security Appeal Authority, High Court and Court of Appeal rulings.
[19] Ms Taylor was still dissatisfied. On 21 February 2017, she sought a review of the Ministry’s re-assessment of her power costs. Ms Taylor stated that her power usage had increased by 9.6 per cent, and her Disability Costs Allowance should be increased to reflect this.
[20] On 22 June 2017, the Benefits Review Committee overturned the Ministry’s 29 September 2016 decision (based on the Powerswitch calculator) and recommended that Ms Taylor’s additional power costs be calculated using the 15 per cent of total use methodology earlier applied.
[21] Ms Taylor lodged an appeal with the Authority on 18 October 2017. On 30 January 2018, the Authority convened a pre-hearing telephone conference and gave directions as to the progression of the appeal. The minute from that telephone conference records:
[5]I note that at the telephone conference I explained to Ms Taylor that the Authority is bound by the decision of the High Court on her unsuccessful appeal against a decision of this Authority in 2016. That appeal raised one of the same issues Ms Taylor raises in this appeal, the way the Ministry calculates her power related disability costs. It appears from Ms Taylor’s submissions to date and the witnesses that she intends to call that she is advocating for the same calculation methods that were not accepted by the High Court although she is contending that different circumstances now apply.
[6]In upholding the decision of the Authority and finding that it was not required to follow the MaP process for which Ms Taylor continues to advocate, Whata J observed that the Authority has a broad discretion to set a disability allowance that is fair and practicable.
[7]At the conference Ms Taylor said that she did not accept that the Authority is bound by that decision. However, as I explained to her, the High Court decision is binding on the Authority whether or not she accepts it. Therefore, raising the same arguments before this Authority will have a predictable outcome.
[footnotes omitted and emphasis added]
[22] A hearing of the appeal was set down for 5 December 2018. However, Ms Taylor withdrew her appeal on 27 November 2018 and the hearing did not proceed.
[23] Since then, Ms Taylor has continued to challenge the calculation of the payments she receives. She says that she has been told by the Ministry that they “refuse to reassess my [Temporary Additional Support payment] by any method other than the 15 per cent awarded by the Ministry”. She has been told by the Ministry that the matter is sub judice because it is bound by the High Court decision. Her payments have not been reassessed since 2018.
[24] Ms Taylor complained about the way her allowances were calculated, and other matters, in letters to the Minister and the Ombudsman. The responses to these letters form the basis of the judicial review proceedings against the Minister and the Ombudsman.
Statement of claim
[25] This proceeding was commenced on 2 October 2018. Ms Taylor has confirmed that the current statement of claim is the amended statement of claim dated
13 November 2018 which attaches a further amended statement of claim. The two documents are to be read together.
[26] The statement of claim itself is lengthy and difficult to follow. At Fitzgerald J’s direction, Ms Taylor filed a “decisions document” that identifies the decisions the subject of challenge. That document provides some assistance in navigating the pleading and understanding the nature of the challenges made. The particular claims made against each of the respondents are considered in more detail below.
Strike-out principles
[27] Rule 15.1 of the High Court Rules 2016 provides that the Court can strike out all or part of a proceeding if it:
(a)Discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading;
(b)Is likely to cause prejudice or delay;
(c)Is frivolous or vexatious; or
(d)Is otherwise an abuse of process of the court.
[28] The principles applying to a strike-out application are well settled.6 The pleaded allegations of facts, whether admitted or not, are assumed to be true. 7 The jurisdiction to strike out on the first ground is to be exercised sparingly, and only in plain and obvious cases.8 Special caution is required where a claim involves a developing area of the law.9
[29] The power to strike out under r 15.1 has historically been applied to judicial review proceedings.10 In Ngati Tama Ki Te Waipounamu Trust v Tasman District
6 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA).
7 Couch v Attorney-General [2008] at [33].
8 At [31].
9 At [33].
10 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA); Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [16].
Council, Cooke J observed that changes enacted by the Judicial Review Procedure Act 2016 may mean that the power to strike out a judicial review proceeding under r 15.1 may no longer be as of right, and may be subject to the Court’s control over judicial review proceedings in ss 13 and 14 of the Judicial Review Procedure Act 2016.11 That control, in his Honour’s view, was important in achieving the “simple, untechnical and prompt” objectives of the judicial review procedure,12 and he expanded on what he meant by that as follows:13
It may be the case that the pursuit of an application to strike out a proceeding will not achieve those objectives, as it will simply add a lawyer of complexity to a proceeding. Judicial review is usually determined on affidavit material, and a strike out application does not ultimately save the cost and expense of a trial involving viva voce evidence. So it may be better to proceed straight to the substantive hearing. But there will nevertheless be cases where such an application may be appropriate. The present case may be an example. The key point is that the better view may be that no party has the ability to apply to strike out a judicial review proceeding as of right. It is ultimately subject to judicial control under ss13 and 14.
[30] For reasons that are explained more fully in this judgment, I consider the strike- out applications taken by the Minister, Consumer NZ and the Ombudsman were properly made at this stage of the proceeding. However, insofar as Ms Taylor’s claim relates to the actions of the Authority and the Ministry in relation to the calculation of her allowances, I consider progressing directly to a substantive hearing would have been more consistent with the objectives of the judicial review procedure. This has ultimately informed the approach I have taken to the applications by the Authority and the Ministry.
Should the claims against the Authority be struck out?
[31] Ms Taylor identifies five decisions of the Authority that are subject to challenge in her judicial review proceedings. Four of those decisions are dated April 2015, the fifth decision is from 2018.
[32] It is apparent from Ms Taylor’s decisions document that all four April 2015 “decisions” relate to the Authority’s determination on 17 April 2015. That
11 Ngati Tama Ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [16].
12 At [19], citing Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].
13 Ngati Tama Ki Te Waipounamu Trust v Tasman District Council at [19].
determination was the subject of the appeal before Whata J which was dismissed on 1 June 2016,14 with the subsequent leave to appeal application being dismissed by the Court of Appeal.15 Any attempt to challenge the Authority’s determination again in this proceeding is a collateral attack on the High Court and Court of Appeal decisions and is an abuse of court process. Claims in relation to those decisions cannot be allowed to go forward.
[33] The fifth “decision” from 2018 falls into a different category. It relates to the Authority’s pre-trial direction in January of that year (reproduced in [21] above) to the effect that the Authority was bound by the High Court and Court of Appeal decisions. For the purposes of this strike-out application, I consider it reasonably arguable that this direction amounted to a pre-determination of Ms Taylor’s appeal. Rather than considering the merits of the appeal, the Authority had already determined what the outcome was going to be.
[34] Whether the Authority’s direction is amenable to review when the Authority has not made a final decision on the appeal is an issue raised by Ms Taylor’s claim. So is the related question of whether the statutory appeal process, including the rights of appeal to this Court, should be exhausted first. The Supreme Court decisions in H v Refugee and Protection Officer and Tannadyce Investments Ltd v Commissioner of Inland Revenue are relevant to that issue.16 These were not matters addressed in any detail at the hearing before me. I consider they are issues that ought to be aired at a substantive hearing and decided with the benefit of full legal argument.
[35] Accordingly, insofar as Ms Taylor’s claims relate to the Authority’s April 2015 decision they are struck out, but all other claims against the Authority remain.
Should the claims against the Minister be struck out?
[36] Ms Taylor wrote to the Minister on 8 November 2017 “about several areas of the [welfare] system which are of concern to me and other beneficiaries”. This
14 Taylor v the Chief Executive of the Ministry, of Social Development [2016] NZHC 1160.
15 Taylor v The Chief Executive of the Ministry of Social Development [2016] NZCA 489.
16 H v Refugee and Protection Officer [2019] NZSC 13; Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158.
included complaints about the use of the Powerswitch website, and the allowance for travel costs to attend hearings before the Benefits Review Committee and Social Security Appeal Authority.
[37]The Minister responded to Ms Taylor on 13 February 2018:
Dear Ms Taylor,
Thank you for your letter dated 8 November 2017 about a number of matters.
I am advised that the powerswitch issues you raise have been addressed by the Ministry of Social Development. As it is an operational matter it would be inappropriate for me to comment further.
You question the travel costs that a person is reimbursed for when they attend a hearing. I am sorry if there has been a miscommunication about these costs. The following link provides the amount that the Ministry of Social Development is allowed to reimburse for, following the attendance to a Benefits Review Committee hearing or the Social Security Appeal Authority: [link provided].
As a Minister, I am unable to comment on any legal process or staff employment matters. However, you are able to write to the Chief Executive, Ministry of Justice if you are concerned about the conduct of the Social Security Appeal authority. [address provided].
If you have concerns about a Chief Executive you may write to the State Services Commission, [address provided]. The State Services Commission is responsible for ensuring performance excellence and high standards of integrity across New Zealand’s State services.
Thank you again for writing. I hope this information is of use. Ngā mihi
Hon Carmel Sepuloni
Minister for Social Development
[38] Ms Taylor complains about the statements in this letter. She submits that there was a miscommunication about travel costs, and that the Powerswitch issues have not been properly addressed by the Ministry.
[39] I am not persuaded that the letter from the Minister evidences the exercise of a power (or the failure to exercise a power) that is amenable to judicial review. The power and the discretion to calculate and pay both the Disability Allowance and
Temporary Additional Support lies with the Ministry, and not the Minister.17 Ms Taylor’s substantive complaint lies with the way the Ministry has calculated that allowance, and its continued use of the Powerswitch calculator. If those complaints are to be pursued by way of judicial review then they should be directed at the Ministry
– not the Minister. In the absence of a reviewable decision or exercise of power, Ms Taylor’s claim has no prospect of success and should be struck out accordingly.
Should the claims against the Ministry be struck out?
[40] The substantial part of Ms Taylor’s pleading concerns challenges to the various decisions made by the Ministry. The particular challenges are wide-ranging and overlapping. They relate to decisions, or exercises of power, made from 2013 through to 2018. For the purposes of this strike-out application the challenges may be categorised as follows:
(a)The methodologies used to calculate additional power costs. This includes the use of the Powerswitch calculator and the Ministry’s manuals and procedures documents, and changes made to those documents.
(b)The calculation of travel and accommodation additional costs as components of the Disability Assessment and Temporary Additional Support payments.
(c)Administrative and procedural decisions made in the course of the review and the appeal hearings.
(d)The Ministry’s determination that it is bound by the High Court and Court of Appeal decisions so that it will only apply the 15 per cent of total usage methodology.
[41] The first category includes determinations made by the Ministry that were the subject of the appeal to the Authority in April 2015, and the subsequent case stated by
17 Social Security Act 1964 (repealed), ss 61G, 69C.
way of appeal to the High Court, and then to the Court of Appeal. For the reasons set out above, those collateral challenges are an abuse of process and any claims of that nature must be struck out.
[42] This category also encompasses challenges to the Ministry’s use of the Powerswitch website calculator to calculate additional power costs. Ms Taylor’s specific complaints relate to the use of this calculator to compare a client’s actual power usage with that of a similar-sized household and whether the comparators being used are correct. At a general level, I consider the Ministry’s use of the Powerswitch website to calculate the additional power costs in calculating benefits is amenable to judicial review. The judicial review procedure provides a means of holding government agencies to account and ensuring that the exercise of their discretion is in accordance with the relevant legislative provisions.
[43] The difficulty in this case, however, is that Ms Taylor has not identified the exercise of a power or a decision by reference to the Powerswitch website. The Ministry’s review of Ms Taylor’s Disability Allowance in September 2016 was made using the Powerswitch website. But that decision was subsequently overturned by both the Ministry and the Benefits Review Committee. There is no outstanding decision identified by Ms Taylor where either she, or someone else, is directly affected by a decision to calculate additional power use through the Powerswitch calculator. Identifying the exercise of a power or a decision is a necessary pre-requisite to Ms Taylor’s claim for review going forward on this basis.
[44] Ms Taylor’s challenges within this first category also encompass complaints about changes made to the Ministry’s manuals and procedures document, and the Powerswitch calculator. Again, as a matter of general principle, such challenges may be mounted by way of judicial review. The difficulty is that it is not clear from Ms Taylor’s pleading just how these alleged changes impacted on Ms Taylor or give rise to a reviewable ground of error. If these claims are to progress further then the particular changes made and the reviewable error arising as a result must be clearly identified.
[45] The second category relates to the calculation of travel and accommodation costs. Ms Taylor complains that fixed car running costs are not included in the travel allowances paid for transport for personal health and disability purposes. She also challenges the calculation of the Temporary Additional Support payment insofar as it relates to an additional accommodation allowance. The Ministry strongly refutes any error in the way these costs have been allowed for in the calculation of Ms Taylor’s allowances.
[46] If there was a procedural error in calculating these costs so that the overall calculation was no longer in accordance with the legislation, regulations, or Ministry of Justice’s guidelines, then I would accept that such decisions would, on their face, be amenable to challenge by way of judicial review. However, Ms Taylor has not detailed in either her pleadings or submissions how these calculations have led to a reviewable error. Nor has she previously challenged these errors through the review and appeal process. This is another example of where the pleadings fall well short in identifying the decisions at issue. Substantial amendments will be required if this claim is to proceed.
[47] That conclusion also applies to the third category of complaints relating to administrative or procedural decisions made in the course of the review and appeal procedure challenge. These are allegations that the principles of natural justice have been breached. For example, Ms Taylor complains that she was not provided with a s 12K report until the day of the Authority hearing.18 It is not clear how these alleged procedural defaults have prejudiced Ms Taylor or impacted on her rights to natural justice. Some of these decisions appear to relate to the earlier decisions made in 2015. There is a strong argument that these issues should have been raised with the Ministry or the Authority in the first instance before being pursued in judicial review proceedings.19 Again, if breach of natural justice is to be pursued by way of judicial review proceedings, the breaches must be clearly identified in the pleadings. At present, they are not.
18 First bullet point, p 2, Decisions Document.
19 Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 (Ch).
[48] The fourth and final category relates to the Ministry’s determination to apply the 15 per cent of total usage costs methodology to assess additional power costs because it was bound by the Authority, High Court and Court of Appeal decisions. I consider Ms Taylor has an arguable case for judicial review in relation to this decision. Arguably, the Ministry has fettered its discretion by applying the 15 per cent methodology without considering whether that methodology remains the most appropriate in all the circumstances. One of the consequences of applying that methodology without separate and independent consideration is that relevant factors (such as changed circumstances) may have been overlooked, and irrelevant factors may have been taken into account.
[49] I do not underestimate the size of the hurdles Ms Taylor must overcome to establish her claim. The failure to exhaust her appeal rights is but one of those, as is the scope of the Ministry’s discretion to determine the best methodology by which additional power costs are to be determined. Nevertheless, for the reasons already outlined in relation to the Authority’s strike-out application, I consider that these and other issues should be determined once Ms Taylor has been afforded an opportunity to re-draft her statement of claim, and with the benefit of fully developed legal submissions.
[50] In summary, to the extent that Ms Taylor’s claims relate to previous determinations already considered by the Authority and the Courts then they should be struck out as an abuse of process. As to the remaining claims, Ms Taylor should be afforded an opportunity to re-plead them so as to bring them within the parameters of the judicial review procedure.
Should the claims against Consumer NZ be struck out?
[51] Consumer NZ owns and operates the Powerswitch website calculator. The Ministry uses that calculator as a means of calculating additional power costs.
[52] Ms Taylor pleads that the Minister and the Ministry have been “aided and abetted” by Consumer NZ through its ownership of the Powerswitch website
calculator. She also claims that Consumer NZ has conspired together with the Minister and the Ministry:20
… to continually change the [Ministry] Manuals and Procedures (map) and the Powerswitch website calculator in such ways that Ministry staff and clients cannot accurately compare clients’ actual usage with an accurate estimate of the consumption (of power) over and above the normal usage of similar-sized households of similar usage as required by legislation and policy.
[53] Ms Taylor then goes on to list a number of actions by way of particulars – none of which relate to steps taken by Consumer NZ. However, specific steps taken by Consumer NZ in relation to the Powerswitch website are identified in her decisions document as follows:
·That the removal of the method used by the Third Respondent to determine that I wasn’t using any additional power in 2013 and 2016 was necessary for their upgrade.
·That the removal of two of the variables from their questionnaire was also necessary.
·That having acknowledged the ‘potential deflating effect of lower socio-economic circumstances on energy consumption’ in their briefing paper to the Third Respondent, to remove the 10% increase/reduce facility (previously used to provide an estimate if a client thought they were using more or less power than average) from their calculator without informing the Third Respondent of its existence or the reason for it.
·That there was no need to inform the Third Respondent that the Powerswitch savings calculator was capable of calculating an State Highway of the usage of a ‘similar-sized household of similar usage’
·That the removal of the estimate’s usage in kilowatt hours during the period 2 October 2018 – 10 October 2018 was also necessary.
[54] In the context of Ms Taylor’s claim considered as a whole, I am not persuaded that any of these decisions identify the exercise of a public power by Consumer NZ that would be amenable to judicial review. Consumer NZ does not have a statutory function under the Social Security legislation, and it does not have any formal role in relation to the calculation of additional power costs. The changes that Consumer NZ allegedly made to its Powerswitch website were not exercises of a public power.
20 Amended Statement of Claim, at [2.1].
Furthermore, there is no evidence that Consumer NZ aided and abetted, or conspired with, the Ministry.
[55] The substance of Ms Taylor’s complaint regarding the Powerswitch website lies with the Ministry’s use of that website (including as altered by Consumer NZ) to calculate a cost included in her Disability Allowance and Temporary Additional Support payment. Complaints of that nature should be targeted at the Ministry, and not Consumer NZ. The claims against Consumer NZ, even if repleaded, are not reasonably arguable and the claim against Consumer NZ must accordingly be struck out.
Should the claims against the Ombudsman be struck out?
[56] On 10 June 2016, Ms Taylor wrote to the Ombudsman raising concerns about the Ministry and the way that it assessed additional power costs for the Disability Allowance. She asked the Ombudsman to investigate.
[57] After considering Ms Taylor’s request, the Ombudsman wrote to Ms Taylor on 6 March 2017. The relevant background to Ms Taylor’s complaint was set out in some detail, including a reference to Ms Taylor’s previous legal action, and her then impending appeals to the Authority. At the conclusion of the letter the Ombudsman confirmed that he had decided not to investigate her complaints.
[58] Ms Taylor challenges the decision not to investigate by way of judicial review. Specifically, she challenges the Ombudsman’s statements in his letter that:
·The flawed assessment methods of the Third Respondent were not a matter of public interest.
·I had had a judicial review of the matter.
·Despite identifying the problem, he would not investigate the methods of the Third Respondent.
[59] As Ms Baigent, counsel for the Ombudsman, points out, the first two bullet points are not evidence of an exercise of a power or a decision that would be amenable to judicial review. More importantly, the decision not to investigate (identified in the
third bullet point) is protected from review by ss 25 and 26(1)(a) of the Ombudsman Act 1975. Those sections provide:
25Proceedings not to be questioned or to be subject to review
No proceeding of an Ombudsman shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of an Ombudsman shall be liable to be challenged, reviewed, quashed, or called in question in any Court.
26Proceedings privileged
(1)Subject to subsection (2) of this section,—
(a)no proceedings, civil or criminal, shall lie against any Ombudsman, or against any person holding any office or appointment under the Chief Ombudsman, for anything he may do or report or say in the course of the exercise or intended exercise of his functions under this Act or the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 or the Protected Disclosures Act 2000, unless it is shown that he acted in bad faith:
[60] Those sections grant any Ombudsman civil and criminal immunity from anything done, reported, or said “in the course of the exercise or intended exercise of [his or her] functions under this Act”. The effect of these sections is to bar courts from reviewing or questioning the exercises of the Ombudsman’s investigative functions and to ensure they remain immune from any claims made in relation to the Ombudsman’s investigative functions.21
[61] Ms Taylor argues that immunity does not apply for two reasons. First, that the Ombudsman was acting outside his jurisdiction. Second, that he was acting in bad faith.
[62] As to her first argument, the Ombudsman’s decision not to investigate was made under s 17 of the Ombudsmen Act 1975. That section provides that an Ombudsman may refuse to investigate a complaint if it appears to the Ombudsman that any of the circumstances listed in s 17(1) apply, including that in subs (a) which provides as follows:22
21 Financial Services Ltd v Wakem [2016] NZHC 634 at [42] and [45].
22 Ombudsmen Act 1975, s 17(1)(a).
(a)under the law or existing administrative practice, the complainant has an adequate remedy or right of appeal (other than the right to petition the House of Representatives) and it is, or would have been, reasonable for the complainant to resort to that remedy or right of appeal.It is clear from the Ombudsman’s letter that he relied on
s 17(1)(a) in reaching his decision. Ms Taylor’s appeal of the Authority’s decision to the High Court was referred to by the Ombudsman, and the fact that the Ministry’s decisions were reviewable by Ms Taylor was specifically referred to in the Ombudsman’s concluding remarks. The Ombudsman therefore determined that Ms Taylor’s right to pursue her complaints by way of appeal to the Authority, and through to the High Court, provided an avenue of redress obviating the need for an investigation. Accordingly, the Ombudsman’s decision was made squarely in accordance with his statutory jurisdiction and there is no reason to suggest otherwise. Section 25 prohibits Ms Taylor from challenging that decision in these judicial review proceedings.
[64] As to the second argument, Ms Taylor claims that the Ombudsman acted in bad faith. She alleges that:
(a)The Ombudsman acted in bad faith because he did not investigate Ms Taylor’s complaint;
(b)The Ombudsman incorrectly mischaracterised Ms Taylor’s proceedings in the High Court as a “judicial review of the [Authority’s] decision through the High Court” when the proceedings were actually an appeal by way of case stated; and
(c)The Ombudsman failed to reply to a letter from Ms Taylor dated 6 March 2017.
[65] None of these allegations suggest any bad faith at all on the part of the Ombudsman.23 A plaintiff alleging bad faith must show that there was “the commission of a reviewable error knowing that an error is being committed”.24 None of the claims made by Ms Taylor come close to meeting this high threshold.
[66] Sections 25 and 26 of the Ombudsman’s Act accordingly apply so as to preclude Ms Taylor’s claim for judicial review. Her claim to judicial review has no prospect of success in the face of such provisions, and to continue the claim in those circumstances would amount to an abuse of process. The claims against the Ombudsman must be struck out accordingly.
Post-hearing applications
[67] Following the hearing, Ms Taylor filed five separate interlocutory applications. These relate to a request to see the Court file, amendments to be made to the common bundle, a declaration of a mistrial, and for leave to amend a statement of claim. The applications are irrelevant to the determination of the strike-out application and I record for completeness that I have not had regard to them in reaching my decision.
Result
[68] The applications by the Minister, Consumer NZ and the Ombudsman are granted. Ms Taylor’s claims for judicial review against those parties are struck out.
[69] The application by the Authority is allowed insofar as Ms Taylor’s claim relates to the Authority’s April 2015 decision and those claims are struck out. The application is otherwise dismissed, and all other claims against the Authority remain.
[70] The application by the Ministry is allowed insofar as Ms Taylor’s claim relates to decisions of the Ministry that have already been considered by the Authority, High Court and Court of Appeal. The application is otherwise dismissed and all other claims against the Ministry remain.
23 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis Wellington 2018, at 15.82).
24 Mary Moodie Family Trust Board (Inc) v Attorney-General [2015] NZHC 365 at [104].
[71] By 4.00 pm, Friday, 23 August 2019, Ms Taylor shall file an amended pleading that is consistent with the findings made in this judgment, and addresses the issues set out at [41] to [48] of this judgment. The amended statement of claim shall also comply with the requirements set out in the High Court Rules. It is of course a matter for Ms Taylor herself, but given the complex nature of the claim, and the skill involved in pleading a claim for judicial review, she is urged to consider obtaining some legal assistance with progressing her claim.
[72] Finally, if costs cannot be agreed between the parties then memoranda in support (comprising no more than three pages) shall be filed and served by 4.00 pm, Friday, 9 August 2019. Any memorandum in response (comprising no more than six pages) shall be filed and served by 4.00 pm, Friday, 23 August 2019. Costs shall be determined on the papers.
Edwards J
10
1