G & J DENNIS V CHIEF EXECUTIVE OF THE DEPARTMENT OF WORK AND INCOME CA CA103/03

G & J DENNIS V CHIEF EXECUTIVE OF THE DEPARTMENT OF WORK AND INCOME CA CA103/03 17 July 2003IN THE COURT OF APPEAL OF NEW ZEALAND CA103/03BETWEEN G & J DENNIS Applicants AND CHIEF EXECUTIVE OF THE DEPARTMENT OF WORK AND INCOME Respondent Hearing: 14 July 2003 Coram: Blanchard J Tipping J Anderson J Appearances: A J McGurk for Applicants J S McHerron for Respondent Judgment: 17 July 2003JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J[1] This is an application for leave to appeal from a High Court decision of Wild J on a case stated appeal from the Social Welfare Appeal Authority. The High Court answered the five questions of law put before it unfavourably to the applicants, Mr and Mrs Dennis. Their application to that Court seeking leave to bring three questions of law to this Court was then dismissed by Chambers J who said the reformulated questions misunderstood Wild J's judgment and did not raise any matter of public or general importance. [2] The present application is under s12R of the Social Security Act 1964 (the Act) which incorporates s144 of the Summary Proceedings Act 1957.[3] As Justice Chambers so eloquently put it: "This case is about a water tank". Mr and Mrs Dennis, who are beneficiaries, encountered misfortune when their water tank was damaged beyond repair. The Chief Executive of Work and Income exercised his discretion to make available to Mr and Mrs Dennis $2,695 as an advance benefit payment so they could purchase a new tank. That discretion is conferred by s82(6) of the Act:If the chief executive is satisfied that an advance payment of a benefit would best meet the immediate needs of a beneficiary, the chief executive may in the chief executive's discretion, on application by the beneficiary, make payment in advance of any number of instalments of the benefit, or part of it, not yet due, and the amount so paid in advance may be recovered under section 86(1). (emphasis added)[4] The Minister of Social Services has power to issue directives with which the Chief Executive must comply (s5 of the Act). In May 1999 the Minister issued a directive to the Chief Executive outlining how the above discretion was to be exercised. Clause 6 advises the Chief Executive what to take into account when making the decision: beneficiary's ability to repay, provision for the particular need, impact on the beneficiary and dependants if the advance is not made and any other relevant factors. Clause 7 provides that an advance can be made to a beneficiary to provide "essential services...such aswater", and must not exceed $1,000 unless there are "exceptional circumstances". We do not have a copy of the Chief Executive's reasons for the decision (assuming they are in writing), but it seems to be accepted that the Chief Executive made a decision to pay Mr and Mrs Dennis pursuant to this directive and found exceptional circumstances to exist. [5] Mr and Mrs Dennis accept the above, but say that the Chief Executive should not have required them to repay the advance. They say that, instead of providing an advance benefit payment (ABP) under s82(6), the Chief Executive should have provided a special needs grant (SNG). The SNG scheme effectively applies in emergency situations and the grant does not necessarily have to be repaid. (A separate provision requires, however, that SNGs to beneficiaries must be made only on a non-recoverable basis.) Grants are considered under a directive issued in December 1998 which provides that "such assistance [is] complementary to theadvance payments of benefit available to beneficiaries under the Act" (cl2). It is common ground that Mr and Mrs Dennis would be eligible for a SNG only under cl14 of that directive which requires "special circumstances":14 Other Emergency Grants14.1 If the chief executive considers that special circumstances exist, the chief executive may make a recoverable or non-recoverable Grant of not more than $200 towards the cost of any item or any service if the chief executive considers that without that item or servicethe Applicantwould suffer serious hardship 14.3 In deciding whether a Grant made under clause 14.1 will be recoverable or non-recoverable, the chief executive must have regard to the following matters- (a) the purpose of the Grant; (b) the nature of the need; (c) whether it would be equitable with other Applicants to require or not to require repayment; and (d) the effect of the Applicant of requiring or not requiring repayment of the Grant. (emphasis added)[6] Mr and Mrs Dennis challenged the decision to require the advance to be repaid, claiming that they should have received an SNG. They were unsuccessful in the Benefits Review Committee, the Social Security Appeal Authority and the High Court (Wild J). On 17 April 2003 Chambers J dismissed their application to appeal against the decision of Wild J, effectively because two out of three of the questions stated for consideration had no merit and it had not been shown that there was a question of sufficient general or public importance. [7] Mr and Mrs Dennis now seek the leave of this Court to appeal against the decision of Wild J. We accept that the lateness of their application is not something for which Mr and Mrs Dennis are responsible and move directly to the substance of the application. Their counsel, Mr McGurk, has eschewed most of the arguments presented below, and the essence of the proposed challenge to the Chief Executive's decision appears to be as follows:(a) The Chief Executive erred in failing to considered the Dennis's entitlement to a SNG before considering the option of an ABP; (b) The Chief Executive should have considered the eligibility criteria under cl14.3 of the SNG directive in order to determine whether the grant should have been recoverable or non-recoverable. [8] Mr McGurk's basic proposition was that it was an error of law for the Chief Executive and the Authority to have decided in favour of an ABP without first considering the appropriateness of an SNG. As we understood his argument, counsel was saying that in fact the sequencing of the Chief Executive's consideration should have been the reverse. He said that Wild J's judgment contained the same error. [9] We do not accept that the decisions below, read in their entirety, exhibit any such error. The general approach of the Chief Executive appears to have been correct and there is no basis for disturbing the exercise of discretion, confirmed as it was by the Authority. The SNG programme is intended to be complementary to the ABP regime (cl.2(d)). Where the Chief Executive forms the view that an emergency situation exists which gives rise to an immediate need, the Chief Executive may make a grant under Part 4 of the SNG programme (cl. 12). If the Chief Executive also considers that special circumstances exist, the Chief Executive may make a non- recoverable grant of not more than $200 towards the cost of any item or service without which there would be serious hardship for the applicant or their spouse or child (cl.14). Clearly, therefore, the Chief Executive has a discretion even if it is considered both that there is an emergency and that special circumstances exist. The Chief Executive then can make available whichever is considered to be the more appropriate of the available forms of relief, i.e. an ABP or a (non-recoverable) SNG. The two regimes sit alongside one another in those circumstances. The Chief Executive is to choose the more appropriate. [10] In this case the Authority did not specifically mention the existence of an emergency but it had recounted the circumstances in which the applicants found themselves, plainly regarding them as an emergency. The Authority moved directlyto cl.14. At para [28] of its decision it does appear to have said that an ABP should be considered first. If that statement stood alone it might appear to misstate the legal position. But it is quite apparent from paras [26], [29] and [31] that the Authority was well aware that the two regimes are complementary. It addressed the appropriateness of an SNG to the particular situation, understandably concluding that it was not appropriate because of the amount required to purchase a new water tank and because it involved capital expenditure on the property of Mr and Mrs Dennis. Contrary to the second argument for the applicants, the substance of the criteria in cl.14.3 was addressed. In particular, clearly responding to the need to look at the effect on the applicants of requiring repayment of the grant, the Authority gave directions concerning deferment and for a limitation of the initial level of weekly repayments. [11] Mr McGurk, in a tenacious argument, also suggested that Wild J had endorsed the proposition found in para [28] of the Authority's decision but we do not read para [41] of the High Court judgment in that way. The Judge seems to us to have correctly seen the two regimes as sitting alongside one another. [12] It is our conclusion that, no matter how it is sought to put the intended questions for this Court, no error of approach is demonstrated in the decisions below so that a second appeal could not produce a different result. [13] Leave to appeal is accordingly refused.Solicitors: Otene & Ellis, Onehunga for Applicants Crown Law Office, Wellington