MINISTRY OF SOCIAL DEVELOPMENT v B [2022] NZHC 1984

MINISTRY OF SOCIAL DEVELOPMENT v B [2022] NZHC 1984IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-485-582[2022] NZHC 1984IN THE MATTER of an appeal by way of Case Stated from adetermination of the Social Security AppealAuthority at Wellington under section 405 ofthe Social Security Act 2018BETWEEN CHIEF EXECUTIVE OF THE MINISTRYOF SOCIAL DEVELOPMENTAppellantAND BRespondentHearing: 16 March 2022; further submissions 24 and 30 March 2022Appearances: AJ Ewing and HLS Bergin for the AppellantFM Joychild QC and B Hoffman for the RespondentJudgment: 11 August 2022JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 11 August 2022 at 4.00pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Crown Law, WellingtonTo: F Joychild QC, AucklandB HoffmanIntroduction[1] When is a student "enrolled in a full-time course"? That is the question at theheart of this appeal. The respondent's entitlement to the accommodation supplementunder the Social Security Act 2018 (the SSA) depends on the answer.[2] The accommodation supplement is paid under the SSA to persons who meetcertain criteria.1 Even if those criteria are met, however, there are exceptions,including where the person concerned is receiving or eligible to receive a basic grantunder the Student Allowances Regulations 1998 (the Regulations). In short, students"enrolled in a full-time course" are eligible for the basic grant under the Regulationsand as such, become ineligible for the accommodation supplement under the SSA.[3] The respondent is a single mother who has the sole care of two dependentchildren. She was originally studying on a part-time basis. She met the incomethreshold under the SSA to qualify for the accommodation supplement and was paidthe supplement up until February 2020. In early 2020, the respondent increased hercourse load to finish her studies earlier, but continued to devote much of her time toworking to support herself and her two children. As a result of the respondent'sincreased course load, the Open Polytechnic advised StudyLink, a division of theMinistry of Social Development (the Ministry), that she was enrolled in a full-timecourse and thus eligible for a basic grant under the Regulations. As a result, theMinistry ceased paying the respondent the accommodation supplement. But given thelevel of her weekly income, the respondent did not actually receive the basic grantunder the Regulations, her entitlement having abated to zero.[4] Following the Ministry's cancellation of her accommodation supplement, therespondent appealed to the Social Security Appeal Authority (the Authority). In adecision delivered on 14 July 2021, the Authority allowed the appeal.2 It consideredit would be "perverse" for the respondent to lose access to the accommodationsupplement simply because she had chosen to increase her course load to finish herstudies earlier, yet all her other circumstances and work commitments remained the1 Eligibility is set by the Social Security Act 2018 [SSA], s 65.2 Re B [2021] NZSSAA 12.same. It concluded that the respondent was not "enrolled in a full-time course", onthe basis that her considerable other commitments meant that in reality she was notpursuing her course work on a full-time basis. Given she was not enrolled in afull-time course, the Authority concluded that the respondent was not eligible toreceive the basic grant under the Regulations and thus was not excluded fromcontinuing to receive the accommodation supplement under the SSA.[5] The appellant (which I will refer to in this judgment as the Ministry) says theAuthority's decision is wrong in law. It argues that a student's personal circumstancesare not relevant to determining whether that student is "enrolled in a full-time course".Rather, the Ministry says that that issue is to be determined by objective measuresrelated to the expected workload involved in the student's course of study.[6] The matter proceeds by way of a case stated from the Authority on a questionof law.3 The question stated for this Court's determination is:Did the Social Security Appeal Authority err in law in determining that astudent's personal circumstances, in particular their work and other personalcommitments, can affect whether that person is "enrolled in a full-timecourse" under Regulations 2 and 12(1)(c) of the Regulations?[7] The Authority will have erred in law if it:4(a) applied the wrong legal test; or(b) took into account matters which it should not have taken into account;or(c) failed to take into account matters which it should have taken intoaccount; or(d) came to a view without evidence, or reached a view which, on theevidence, it could not reasonably have come to.3 SSA, s 405.4 Chorus Ltd v Commerce Commission [2014] NZHC 690 at [13].Factual background[8] The following is drawn from the case stated on appeal.[9] As mentioned, the respondent is a single mother with the sole care of twodependent children. Between October 2018 and 23 February 2020, she studiedpart-time at the Open Polytechnic, working at the same time 30 hours per week. Shequalified on that basis for a non-beneficiary accommodation supplement under theSSA.[10] In early 2020, the respondent decided to increase her course load so she couldcomplete her studies earlier. As noted, she continued with her existing work andfamily commitments. The Open Polytechnic subsequently advised StudyLink that therespondent was enrolled in a full-time course at the Open Polytechnic from24 February 2020.[11] Following that notification, StudyLink cancelled the respondent'saccommodation supplement. The respondent's weekly income exceeded $683.83,which under the Regulations meant her entitlement to a basic grant abated to zero.5The respondent accordingly received neither the accommodation supplement underthe SSA nor the basic grant under the Regulations.[12] As noted earlier, the respondent appealed against that outcome. On 14 July2021, the Authority allowed her appeal, concluding that because the respondent wasnot pursuing her studies on a full-time basis, she was not enrolled in a full-time courseand therefore remained eligible for the accommodation supplement. It is helpful firstto set out the relevant legislative scheme before addressing the Authority's decision inmore detail.Legislative scheme[13] Two statutory regimes are relevant in this case. The first is the SSA, whichestablishes a range of welfare payments, including the accommodation supplement.The second is the Regulations, promulgated under the Education and Training Act5 Student Allowances Regulations 1998, reg 18 and sch 2 cl 3(1)–(2).2020. The Regulations provide for financial assistance to students, including anaccommodation benefit (which forms part of what is known as the "basic grant").[14] Turning first to the SSA, s 3 of the Act relevantly provides:3 Purpose of this ActThe purpose of this Act is—(a) to enable the provision of financial and other support asappropriate—(i) to help people to support themselves and their dependantswhile not in paid employment; and(ii) to help people to find or retain paid employment; and(iii) to help people for whom work is not currentlyappropriate—because of sickness, injury, disability, orcaring responsibilities—to support themselves and theirdependants:(b) to enable in certain circumstances the provision of financialsupport to people to help alleviate hardship:[15] Section 4 of the SSA sets out the Act's principles, which include for presentpurposes that "work in paid employment offers the best opportunity for people toachieve social and economic well-being"6 and that "the priority for people of workingage should be to find and retain work".7[16] The accommodation supplement is governed by s 65 of the SSA:65 Accommodation supplement: discretionary grant(1) MSD may grant a person (P), for the period that MSD determines, anaccommodation supplement—(a) P has accommodation costs; and(b) P meets the assets requirement (as set out in regulations madeunder section 423); and(c) P is not excluded on either of the following grounds:6 SSA, s 4(a).7 Section 4(b).(i) the social housing exclusion:(ii) the other funding exclusion.(Emphasis added)[17] "The other funding exclusion" is defined by s 67 of the SSA:67 Other funding exclusionA person (P) is ineligible for an accommodation supplement (on theground of the other funding exclusion) if—(a) P is the spouse or partner of a person who is already receiving anaccommodation supplement (except as provided in section 68);or(b) P—(i) is receiving a basic grant or an independent circumstancesgrant under the Student Allowances Regulations 1998 (orunder other regulations made under section 645 of theEducation and Training Act 2020); or(ii) would be eligible to receive one of those grants if P wereto apply for the grant; or(iii) would be eligible to receive one of those grants were it notfor the level of income of P or of P's parent or parents orspouse or partner; or(Emphasis added)[18] I pause to note that as can be seen from s 67(b)(ii) and (iii), a person is excludedfrom being eligible to receive the accommodation supplement under s 65 if they areeligible for the basic grant under the Regulations even if they are not actually beingpaid the grant (in the latter case, as a result of the level of their income). Thepredecessor to s 67, s 61EA of the Social Security Act 1964, was amended in 2015 byadding subs (b)(ii), and (iii) was amended to include reference to the applicant'spartner's income. In Parliamentary debate on the third reading of the 2010Amendment Bill (in April 2015),8 the responsible Minister stated that:9There is a major and deliberate difference between the support provided tostudents in tertiary education and the support provided to low and middleincome families through the accommodation supplement. Theaccommodation supplement recognises the housing needs of low to middleincome people and assists them with accommodation costs when they are notgetting other Government assistance such as income-related rent or studentsupport. The Government provides tertiary students with a package of supportfor their costs through substantially subsidised fees, the student allowance,accommodation benefit, and access to student loans.A loophole in the Act has meant that some students can get a higher level ofaccommodation assistance by accessing the accommodation supplement.That is not right. Students should get the assistance designed for them. Theadequacy of New Zealand's student support is completely beyond the scopeof this bill. New Zealand students are well provided for. That is right andproper. Having highly educated, skilled people is a benefit to the wholecountry, but there is also an individual advantage accruing from tertiaryeducation in terms of the income a person can earn over their lifetime. Thisis why student support in New Zealand is shared between taxpayers,individual students, and their families. This bill closes the loophole so thatstudents must use the assistance designed for them and cannot claim theaccommodation supplement.[19] In a similar way, "full-time students" are not eligible for jobseeker support10 ortemporary additional support,11 albeit this is subject to various exceptions.12 A"full-time student" is defined in the SSA as a person "who is enrolled in a full-timecourse within the meaning of the [Regulations]."13[20] Turning to the Regulations, reg 12 determines eligibility for the basic grant:12 Eligibility for certain allowances(1) No student is eligible for an allowance continued by regulation 3(a) to(e) unless—(a) he or she—8 Social Security Amendment Bill (No 3) 2010 (232-1).9 (2 April 2015) 704 NZPD 2885–2886. Also reflected in the Ministry of Social DevelopmentSocial Security Amendment Bill (No 3): Initial Briefing to the Social Services Committee (29 April2011) at [18]–[20] and [29].10 SSA, s 26(a).11 Social Security Regulations 2018, reg 59(3)(d).12 Section 25 of the SSA provides for the discretionary grant of jobseeker support to a full-timestudent who is in hardship; reg 59(3)(d) of the Social Security Regulations 2018 does not apply toanyone with the care of dependent children.13 SSA, sch 2.(i) is a New Zealand citizen; or(ii) satisfies the chief executive that he or she is ordinarilyresident in New Zealand, has lived in New Zealand for atleast 3 years, and has been entitled under the ImmigrationAct 2009 to reside indefinitely in New Zealand for at least3 years; or(iii) satisfies the chief executive that he or she is recognisedunder the Immigration Act 2009 as a refugee or a protectedperson and is entitled under the Immigration Act 2009 toreside indefinitely in New Zealand; or(iiia) satisfies the chief executive that the student is a personwho holds a residence class visa that is an Afghanemergency resettlement visa under the Immigration Act2009; or(iv) satisfies the chief executive that he or she is entitled underthe Immigration Act 2009 to reside indefinitely in NewZealand and was sponsored into New Zealand by a familymember who, at the time of the student's entry into NewZealand—(A) was recognised under the Immigration Act 1987 orthe Immigration Act 2009 as a refugee or protectedperson; and(B) held a residence permit issued under the ImmigrationAct 1987 or a residence class visa issued under theImmigration Act 2009; or(v) satisfies the chief executive that the student is a personwho holds a residence class visa that is a Christchurchresponse visa under the Immigration Act 2009; or(vi) satisfies the chief executive that the student is a personwho—(A) holds a residence class visa (other than a Christchurchresponse visa) under the Immigration Act 2009; and(B) would have been eligible for a Christchurch responsevisa if the student did not hold a residence class visa(other than a Christchurch response visa) under theImmigration Act 2009; and(vii) satisfies the chief executive that the student holds atemporary entry class visa and—(A) has been recognised under the Immigration Act 2009as a person who is a refugee or protected person; or(B) is residing in New Zealand, is a specified familymember of a person who has been recognised underthe Immigration Act 2009 as a refugee or protectedperson, and is eligible to transition to a residence classvisa with that person; or(viii) satisfies the chief executive that the student holds aresidence class visa that was transitioned from a temporaryentry class visa at the time when a family memberrecognised under the Immigration Act 2009 as a refugee orprotected person was issued with a residence class visa;and(ab) if the allowance is in respect of a course of study commencing onor after 1 January 2014, he or she is, when the course of studycommences, under the age specified in section 7(1) of theNew Zealand Superannuation and Retirement Income Act 2001;and(b) he or she makes an application for an allowance in accordancewith Part 7; and(c) he or she either—(i) is enrolled in a full-time course at a tertiary provider orsecondary school and meets the attendance andperformance requirements of that provider or school fortuition; or(ii) is approved to study overseas under regulation 26; or(iii) is approved to study in a part-time course under regulation12A.(Emphasis added)[21] As can be seen from reg 12(1)(c), in order to be eligible to receive the basicgrant, the student must be "enrolled in a full-time course".14 Students enrolled inpart-time courses can, however, receive the basic grant if approved for that purposeunder reg 12A:1512A Chief executive may approve part-time course for student(1) For the purpose of regulation 12(1)(c)(iii), the chief executive mayapprove a course of study for a student that is less than a full-timecourse if either of the following applies:14 The definition of "full-time course" and related definitions are addressed at [22] to [25] below.15 The italicised parts of the section are relevant to matters discussed later in this judgment: see [78]to [79] below.(a) the student is enrolled, or intending to enrol, in a recognisedcourse of study that is less than a full-time course and, on theadvice of a tertiary provider or the principal of the appropriatesecondary school, the chief executive considers a course of studythat is less than full time is appropriate—(i) because of the student's illness; or(ii) for any cause that is, in the opinion of the chief executive,a sufficient cause that is outside the student's control; or(iii) because the chief executive considers such a course to bein the student's academic best interests:(b) the student is enrolled in a recognised course of study that is lessthan a full-time course and, in the opinion of the chief executive,the student—(i) has completed part of the course in which he or she isenrolled; and(ii) will, on completing that course, complete a recognisedprogramme; and(iii) is taking a course, or combination of courses, thatconstitutes more than half of a full-time course.(2) For the purposes of subclause (1)(a)(iii), academic best interests, inrelation to a student, means that the student would be likely to fail, foracademic reasons, if he or she undertook a full-time course but wouldbe likely to pass more than half of the course if he or she studied part-time.(Emphasis added)[22] "Full-time course" is defined in s 2 of the Regulations to mean: any recognised course of study approved by the chief executive as a full-time course forming part of a recognised programme.[23] A "course of study" is not defined, though I proceed on the basis that on itsordinary terms, it refers to the collection of papers, classes or work that a student isundertaking. A "recognised course of study" is defined and s 2 relevantly provides asfollows:recognised course of study—(a) means a course of study leading to the completion of a recognisedprogramme; and[24] "Recognised programme" is defined as follows:recognised programme means—(a) in relation to a tertiary provider, a programme approved by theTertiary Education Commission, and approved—(i) by the New Zealand Qualifications Authority under section 439of the Act; or(ii) by the New Zealand Vice-Chancellors Committee undersection 453 of the Act; and[25] Finally, the term "programme" is defined in s 2A:2A Meaning of programme(1) In these regulations, programme means,—(a) in relation to a secondary school, a full-time course:(b) in relation to a tertiary provider, any aggregate of courses,classes, and work required for the completion of a degree,diploma, certificate, or other qualification awarded by thatprovider.[26] The Regulations do not provide any express formula or criteria which theChief Executive must apply when deciding whether to approve a recognised course ofstudy as a full-time course. In practice, the Chief Executive currently determineswhether a course of study is a full-time course by reference to the combined EquivalentFull-Time Student (EFTS) score of the various papers a student is taking. Each tertiarycourse is assigned an EFTS value by the Tertiary Education Commission, which is inturn based on the total number of hours that a student would be expected to spend onthat course. One EFTS represents 1,200 learning hours, which equates to a year offull-time study.16[27] Based on these calculations, the Chief Executive then determines what totalEFTS score will be considered "full-time" for a particular course load for student16 Tertiary Education Commission "Qualifications and courses" <www.tec.govt.nz>.allowances or loan purposes. This is explained on the StudyLink website as replicatedbelow:17[28] Before leaving the two statutory regimes, I note that it is not in dispute that theaccommodation supplement under the SSA and the basic grant under the Regulationsabate at different income levels:(a) the accommodation supplement starts to abate once the recipientreceives weekly income of $626, and abates to zero at an income levelof $1,106 per week;1817 StudyLink "Full-time definition" Ministry of Social Development <www.studylink.govt.nz>.18 As at April 2020; Social Security Regulations 2018, reg 17(2)(f); and SSA, sch 4 pt 1. Abatementis provided for by reg 18 of the Social Security Regulations.(b) a student enrolled in a full-time course is ineligible for the basic grantif their income exceeds $683.83 per week.19[29] Consequently, once a student enrolled in a full-time course receives a weeklyincome of $683.83 per week or more, that student will no longer be eligible for thebasic grant and because of s 67(b)(iii) of the SSA, will also be ineligible for theaccommodation supplement.The Authority's decision[30] The Authority stated that "[t]he issue we must decide is whether the respondentshould have lost her accommodation supplement."20 As will be seen from thefollowing extracts from the Authority's decision, the Authority's answer to thatquestion was heavily influenced by what it perceived to be the unfairness of thesituation in which the respondent found herself.[31] The Authority traversed the statutory provisions outlined in the earlier sectionof this judgment. It then outlined what it understood to be the Ministry's approach tothe case as follows:[15] The Ministry has approached the case on the basis that if [therespondent] is excluded from eligibility to a basic grant for any reasonother than her income, then she is entitled to an accommodationsupplement. Accordingly, when she was not enrolled in "a full-timecourse", or approved part-time course, then she was eligible.[16] It follows that the Ministry's position is that the legislation demands aperverse outcome:[16.1] [The respondent] income level justifies an accommodationsupplement; but[16.2] She does not get the accommodation supplement because sheis entitled to a basic grant; but her income reduces the basicgrant to nil.[17] [The respondent] does not receive the basic grant; she has not appliedfor one but that does not affect eligibility in the relevant sense. If shecould apply successfully no doubt she would.19 As at April 2020; Student Allowances Regulations 1998, reg 18 and sch 2 cl 3(1)–(2).20 Re B, above n 2, at [3].[18] The most favourable interpretation is that if [the respondent] isexcluded for any reason in addition to her income, then she is entitledto retain the accommodation supplement. We understand that is theMinistry's approach and we agree it is consistent with the Act. Itfollows that the pivotal issue for us to determine is whether [therespondent] is excluded from being eligible for a basic grant for one ormore reasons other than her income.(Emphasis added)[32] The Authority then stated:[20] As we have observed, the Act provides support to assist people insupporting themselves by gaining employment. It records that peoplebeing in paid employment offers the best opportunity for them toachieve this independence.[21] Training and gaining skills are also referred to in the [SSA's] principles.The Act should not impede people training and gaining skills, as far asthe provisions in the Act permit that to happen. What [the respondent]did was to continue her part-time work, manage her responsibilities asa parent and take on some additional papers to complete herqualifications as quickly as possible. She reasonably objects to alegislative quirk if it deprives her of an accommodation supplementsimply because she has successfully accelerated her course of study,while remaining in near full-time employment. If the legislation worksin that way it is a perverse incentive that is inconsistent with theexpressed purposes of the Act.[22] To the extent we can apply a purposive interpretation to the legislationto achieve the purposes of the Act we indicated we would do so. Thisapproach to interpretation has statutory direction under s 5(1) of theInterpretation Act 1999, which states legislation's purpose is"ascertained from its text", and in the "light of its purpose". Thepurposive approach calls for a balance to be struck between the text andthe purpose of the legislation. In appropriate cases attributing a meansthat is consistent with the purpose of a provision has a high value. Ofcourse, where the words of a provision are sufficiently unclear orcapable of more than one meaning, courts will adopt an interpretationthat does not lead to injustice or absurdity. However, the effect is farmore pervasive than that. This Authority must have regard to the totalcontext of the words used and the purpose of the legislation in order toarrive at the meaning intended.[23] In this case, the Act makes it clear that its purpose is to help peoplesupport themselves by providing financial assistance to assist reachinga level of independence. Taking a purposive interpretation, theAuthority will interpret the provisions in a manner that achieves thatobjective, rather than a perverse outcome. In this case the Ministry ofSocial Development considers the legislation imposes negativefinancial consequences where a person takes additional study coursesto quickly achieve a professional qualification; whereas a person inotherwise identical circumstances who does less study is not penalised.(Footnotes omitted, emphasis added)[33] The Authority noted that there was no dispute between the parties that the onlyprovision that potentially excluded the respondent from being entitled to theaccommodation supplement was her eligibility for a basic grant under the Regulations.The Authority accordingly described whether the respondent was enrolled in a full-time course at a tertiary provider as the "determinative point".21[34] The Authority then turned to the definition of "a full-time course", noting thatthis was determined by the Chief Executive under what the Authority described as "astatutory discretion".22 The Authority noted that the Chief Executive had publishedthat he exercises "the discretion on an individual basis", given the StudyLink website(set out at [27] above) states "[f]or the course to be approved as full-time, the lengthof that course must meet a certain EFTS value [w]e get this information directlyfrom your education provider."23 The Authority then said:[29] As the education provider has no statutory power to make the decision,it appears clear the Chief Executive gets information from the providerregarding the course work-load, and then makes the decision in respectof the individual student. However, we did not consider the discretionwas confined to considering only the course work-load. If that were thecase it would not be necessary to gather information for individualstudents. Furthermore, we do not consider that the Chief Executive isobliged to regard a student as engaged in a full-time course simplybecause they are enrolled in sufficient components of a course.[35] The Authority then noted that pursuant to s 401(3) of the SSA, the Authorityhas all the functions and powers that the Ministry has in respect of the respondent'sentitlement (which the Ministry does not dispute). The Authority stated that it wastherefore required to consider whether the respondent was enrolled in a full-timecourse. The Authority reiterated its view that "this case concerns a discretionarydecision".24[36] The Authority then stated:[35] The provisions that are determinative are:21 Re l, above n 2, at [24].22 At [26].23 StudyLink "Full-time definition", above n 17.24 Re B, above n 2, at [34].[35.1] Section 67(b), in this case ineligibility for an accommodationsupplement arises if [the respondent] would be eligible for abasic grant under the regulations but for her level of income.[35.2] That turns on reg 12 which is expressed in the negative "nostudent is eligible unless". There is no mandatoryentitlement through meeting the criteria. One of theprohibitions is reg 12(c)(i) requiring enrolment in a "full-timecourse".[35.3] The definition of "full-time course" is a recognised course ofstudy "approved by the chief executive as a full-time course".[36] There is nothing in the regulations that deem a person entitled to anallowance without the Chief Executive's discretionary decision. It isobvious that in the ordinary course there will be prescribed courses andit is unnecessary to apply individual decision-making. However, in aparticular case if a person created a perverse outcome by somecombination of courses that was not acceptable, the Chief Executivecould choose to decline to approve that person's course.[37] In this case the reality is that [the respondent's] course was not, for her,full-time. That is the factual reality of her circumstances. The ChiefExecutive is not obliged to blindly consider she was in a full-timecourse simply because someone else in different circumstances wouldbe in a full-time course studying for the same papers. That is the pointof the legislation providing that entitlement turns on a discretion on thepart of the Chief Executive.[38] The Chief Executive is charged with making decisions that take accountof all the material legislation. In this case, the legislation concernsaccommodation supplements and student allowances. Under s 401(3)of the Act, when hearing and determining an appeal, the Authority hasall the duties, functions, and powers that the Ministry had in respect ofthe same matter. That includes all of the Chief Executive'sdiscretionary powers.[39] We can and must take account of [the respondent's] circumstances, andthe policy in the Act as well as the Regulations. We are satisfied for thefactors that apply to [the respondent], not other students generally,identified above in paragraph [30] we determine [the respondent's]course of study is not approved as full-time, and accordingly she isineligible under reg 12.(Footnotes omitted)[37] The Authority accordingly allowed the respondent's appeal.The parties' submissionsThe Ministry's submissions[38] As noted, the Ministry says that the Authority erred in law, in that a student'spersonal circumstances, and the time that he or she might devote to his or her courseof study, is irrelevant to whether the student is "enrolled in a full-time course".[39] The Ministry's starting point is what it says is the proper interpretation ofreg 12(1)(c)(i) by reference to the natural and ordinary meaning of the phrase "enrolledin a full-time course". Counsel for the Ministry, Ms Ewing, submits that in its ordinarysense, "full-time" is understood as an objective measure of the amount of time that aparticular activity will occupy.[40] Ms Ewing accepts that the Regulations do not explicitly define a "full-timecourse" by reference to a given course load. But she suggests that the definition doesnot provide any basis to depart from that usual meaning. Counsel highlights that otheraspects of the definition emphasise the qualities of the course itself, and no mention ismade of the student's own circumstances.[41] Ms Ewing accordingly submits that the Ministry's approach is consistent withthe concept of being "enrolled" in a full-time course. She submits that either a studentis "enrolled in" a particular type of course or they are not, and that question cannot beaffected by how a student approaches their study.[42] Ms Ewing further submits that this approach is consistent with the context ofthe Regulations more generally. Elsewhere in the Regulations, references to"full-time" study assume this will represent an objective assessment of the courses astudent is taking, without reference to that student's personal circumstances.Ms Ewing refers, for example, to reg 30, which requires the Chief Executive tosuspend a student's basic grant where the courses the student has passed "in theopinion of the chief executive, [were] equivalent to half of or less than half of afull-time course" (emphasis added). She says that the concept of a full-time coursebeing divided in half suggests it represents a numerical measure of course load, and itis unclear how this calculation could be undertaken if someone who has a full-timecourse load may "not in reality be studying full-time".[43] The second example referred to is reg 12A, which permits the Chief Executiveto "approve a course of study for a student that is less than a full-time course" if certaincriteria apply (emphasis added). Ms Ewing submits that this, and the broader contextof reg 12A,25 is significant for three reasons:(a) First, where the Chief Executive has had discretion to consider astudent's personal circumstances as relevant to grant eligibility, theRegulations mention this expressly.(b) Second, the language used to describe part-time study in reg 12A ("lessthan a full-time course") suggests this is a "bright line" concept, notsome form of discretionary balancing exercise (in other words, either acourse of study is full-time or it is not).(c) Third, the presence of reg 12A as a "safety valve" for students withdifficult personal circumstances suggests that the Chief Executive willnot already be considering those circumstances when decidingeligibility under reg 12(1)(c)(i).[44] Ms Ewing accepts that the Regulations do not require the current measure ofEFTS to be used to determine what is or is not a full-time course and that theChief Executive could "change that measure tomorrow". But she submits that thescheme of the Regulations overall requires that what is approved as a full-time courseis to be tied to an objective measure of workload. Ms Ewing accordingly submits thatwhile the Chief Executive must "approve" an individual student's course as full-time,the Authority was wrong to suggest that this gives the Chief Executive a broaddiscretion to distinguish between two students with identical course loads based ontheir personal circumstances. Ms Ewing says that on the contrary, the Regulationswhen read as a whole contemplate the Chief Executive setting an objective measure25 Set out at [21] above.for what workload will constitute a full-time course of study, and then applying thatthreshold consistently in the case of individual students.[45] Ms Ewing also submits that this approach is consistent with the purpose ofboth the Regulations and the SSA, and in particular, s 67(b)(iii) of the SSA. Shesubmits that the clear purpose of s 67(b)(iii) is to ensure that students cannot accessthe accommodation supplement simply because they earn too much to claim theequivalent of the student entitlement. Ms Ewing says that the effect of s 67(b)(iii) isintentional, and the Authority should not resort to a purposive interpretation toeffectively circumvent that legislative intent. Counsel also submits that it is notperverse to deny welfare assistance to someone who has chosen to study full-time, butmade a deliberate choice to engage in a significant enough proportion of work to abatethe accommodation benefit under the basic grant to zero.[46] Ms Ewing also draws support for the Ministry's approach from earlieriterations of the Regulations. She notes that the Tertiary Bursaries Regulations 1976(the 1976 Regulations) required the holder of a tertiary bursary to be "enrolled as afull-time student in a recognised course of study" and pursuing "as a full-time studenta full-time programme" (emphasis added).26 Ms Ewing notes that subsequentiterations of the Regulations simply required a recipient to be "enrolled in arecognised course of study" and, in any given year, "enrolled in a full-timeprogramme"27 (or later, a "full-time course").[47] Ms Ewing accordingly says that all of the earlier iterations of the Regulationshave approached the concept of a full-time course, or full-time programme, as directedto the nature of the programme itself, and it was only the 1976 Regulations that alsorequired the recipient to be pursuing a full-time programme as a "full-time student".She submits that irrespective of what that additional component was intended tocapture, it no longer forms part of the test, having been removed from the baselineeligibility criteria in 1980.26 Regulation 7.27 Tertiary Assistance Grants Regulations 1980, reg 19(2).The respondent's submissions[48] The respondent's submissions centre on the proposition that the requirementfor the Chief Executive to "approve" a full-time course is the exercise by the ChiefExecutive of a discretionary power. Counsel for the respondent, Mr Hoffman, whodelivered most of the oral submissions on the respondent's behalf, refers to this Court'sdecisions in Ankers v Attorney-General and Osborne v Chief Executive of the Ministryof Social Development, in which he submits the Court was critical of the ChiefExecutive making discretionary decisions in a mechanical way (described in Ankersas "a mechanical analysis of input data by a computer").28[49] Mr Hoffman submits that the starting point must be the purpose of the SSA,which is primarily to help people find and retain paid employment. Counsel submitsthat in her decision-making, the Chief Executive must have regard to the principle ofthe primacy of finding paid work to offer the best opportunity for people to achievesocial and economic wellbeing.29[50] In exercising what is described as a discretion when deciding whether or notto approve a particular course as full-time, Mr Hoffman submits that it is wrong toconsider only the workload required of the course. He argues that this approach fettersthe discretion to a narrow and automatic decision to the effect that, if a course has acertain workload, it will be considered full-time.[51] Mr Hoffman submits that in exercising her discretion, the Chief Executivemust consider all mandatory considerations and would not be exercising the discretionwrongly to take into account relevant (albeit not mandatory) considerations. Therespondent notes that the Court in Osborne said that when exercising a discretionarypower (in that case, the power to seek recovery of overpayments), the Chief Executiveis free to consider anything reasonable and relevant to the decision to be made.3028 Ankers v Attorney-General [1995] 2 NZLR 595 (HC) at 607; and Osborne v Chief Executive ofthe Ministry of Social Development [2010] 1 NZLR 559 (HC).29 Referring to SSA, s 4(a)–(c); see [15] above.30 Osborne v Chief Executive of the Ministry of Social Development, above n 28, at [63].[52] Mr Hoffman further submits that what is relevant to the present situation is thatthe respondent is working to support herself and her dependent children, and in doingso, she is doing what the SSA intends and desires working age people to do. Incontrast, counsel submits that it is clear that the objective of the Regulations is toprovide allowances only to those students whose predominant activity is studying. Inthis way, Mr Hoffman says that eligibility for a student allowance (and its predecessor,a bursary) has always been restricted only to those students whose main activity isstudying and not something else, for example, being in full-time employment.Counsel submits that the original 1976 Regulations illustrate this most clearly, byincluding the express requirement for a student to pursue a full-time programme as afull-time student. Mr Hoffman says that there is nothing in the legislation to indicatethat this underlying intention no longer exists under the current Regulations. To putthe point another way, Mr Hoffman argues that there is nothing in the presentRegulations to suggest the exclusion of an express reference to pursuing a full-timeprogramme or course "as a full-time student" was intended to have any substantiveeffect.[53] Accordingly, Mr Hoffman submits that whether an individual student isstudying full-time is a factual question turning on all of the student's individualcircumstances. Counsel says that while it appears the Regulations proceed on anassumption that a student enrolled in a full-time course will engage in study as theirpredominant activity, it can never be true of every student and the respondent is theperfect example of that.[54] Responding to the Ministry's argument that the respondent's approach createsunacceptable uncertainty in terms of the entitlement to assistance at any given time,Mr Hoffman submits that that is no answer, and that many aspects of welfare benefitsturn on a person's individual circumstances at any given point in time. Counsel refersin this regard to the requirement for a recipient of certain benefits or higher rates ofbenefits to have at least one "dependent child",31 which is defined in part as a childwhose care is the "primary" responsibility of the recipient.32 Mr Hoffman says that31 Counsel gives the example of entitlement to sole parent support: SSA, ss 29(a) and 30; andentitlement to a higher maximum amount of accommodation supplement: SSA, sch 4 pt 7 cl 1.32 SSA, sch 2.examples like this demonstrate that taking into account individual circumstances doesnot create insurmountable difficulties in the Chief Executive properly exercising herdiscretion, and that it would be wrong for the Chief Executive not to considerindividual circumstances simply because that would be inconvenient or createadditional work. Mr Hoffman submits that an approach to approval of a full-timecourse that reflects whether the student is undertaking their course load as theirpredominant activity is a sufficiently objective test, and no less objective than anumerical assessment of course load.[55] Mr Hoffman further says that there must be "leeway" within the Regulationsfor the Chief Executive not to approve a course of study as a full-time course on thebasis of something other than case load, citing as an example that the subject matterof the course is so very objectionable that it simply should not be approved.Mr Hoffman further submits that it would be artificial and "wilfully blind" to proceedon the basis that if person X is undertaking Y amount of course load, it means X isdoing Z amount of study. Counsel accepts that that may normally be the case, but ifas a matter of fact that is not actually so, then the student concerned should not beentitled to receive the basic grant as they are not actually engaging in a full-timecourse.[56] Pressing the theme that there is an inherent presumption in the Regulations thatthe relevant student is approaching their course load as their predominant activity,Mr Hoffman submits that the presence of the abatement regime does not underminethat argument. While he accepts that the abatement regime reflects that a student isnot undertaking their course as their predominant activity (but rather is devoting "toomuch" time to work), Mr Hoffman says this operates as a "safety check" only.DiscussionSummary of approach[57] A focus of Ms Ewing's submissions was the interpretation of "full-time course"as that term is used in reg 12, and the proposition that reg 12 (in contrast to reg 12A)involves the exercise of judgment rather than discretion.33 I consider that the properfocus, however, at least as a starting point, is not reg 12 itself, but rather the definitionof a "full-time course" in reg 2 and the concept of the Chief Executive "approving" arecognised course of study as a "full-time course".[58] As will be apparent from the discussion of the Authority's decision at [30] to[37] above, the decision turned significantly on the Authority's view that theChief Executive's power to approve a recognised course of study as a full-time courseis a broad discretionary power and that when exercising that power, it is legitimate totake into account a student's individual circumstances. I therefore start by consideringwhether the Chief Executive's power to approve a course of study as a full-time courseis a discretionary power, or whether it is more properly characterised as requiring anexercise of judgment.Approval as a "full-time course" – discretion or judgment?[59] There is no clear guideline in the case law for determining whether adecision-making power is discretionary or not. Indeed, the Court of Appeal recentlycommented in Taipeti v R that the distinction between judgment and discretion "isincapable of precise definition".34 The Court observed that:[44] The difference between the appellate approach to an ordinary appeal andan appeal against the exercise of a discretion is therefore not in doubt. Theissue has been determining where the distinction between the two types ofdecisions, and therefore the two types of appeal, lies. There is no decision ofthe Supreme Court or this Court that sets out a guideline for determiningwhether a decision is discretionary or not. Tipping J had gone on to observein Kacem v Bashir, "[t]he distinction between a general appeal and an appealfrom a discretion is not altogether easy to describe in the abstract."35Importantly the Judge noted that "the fact that the case involves a [sic] factualevaluation and a value judgment does not of itself mean the decision isdiscretionary".36(Emphasis added)33 With reference to the approach adopted in Tyler v Attorney General [2000] 1 NZLR 211 (CA), inwhich the Court of Appeal distinguished between eligibility for a particular benefit, being anexercise of judgment, and granting relief on the basis of hardship, being an exercise of discretion.34 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [50].35 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].36 At [32].[60] Nevertheless, in Taipeti, which involved a bail appeal, the Court identifiedseveral principles to be applied in determining whether a decision-making powerconfers a discretion.37 In doing so, the Court reviewed the relevant authorities, andI gratefully adopt the Court's summary:[45] The meaning of discretion was also discussed in R v Gwaze, where theSupreme Court considered whether a decision as to the admissibility ofevidence under the Evidence Act 2006 was a question of law or an exercise ofa discretion.38 It concluded that it was a question of law.39 In reaching thatconclusion Elias CJ observed:[49] All the rules of exclusion provided by the Act are binding onjudges. Although their application may raise "nice questions ofjudgment", they do not confer discretion as to the admission ofevidence. They prescribe standards to be observed. Such rules do nottherefore assume distinct allocation of responsibility between trialjudge and Court of Appeal which restricts appellate oversight. Ifhearsay evidence is not reliable, the judge must exclude it. If expertopinion evidence does not meet the standard of "substantialhelpfulness" set by s 25(1), it is not admissible. If the probative valueof evidence is outweighed by the risk that the evidence will have anunfairly prejudicial effect on the proceeding, it must be excluded bythe judge. Whether these standards are met entails judgment, not theexercise of a judicial discretion. If the standards are not met and theevidence is wrongly admitted, the error is one of law which can becorrected on appeal.(Footnotes omitted and emphasis added)[46] She also stated:40Compliance with legislative minimum standards, a question of law,may be contrasted with cases concerned with the exercise ofdiscretion entrusted to the trial judge which, unless the discretion hasbeen exercised on wrong principle, do not give rise to error of law.The fulfilment of a statutory condition for admissibility (withoutwhich evidence must be excluded) is not the same thing as exclusionin the exercise of discretion. Even if determination of whether thestatutory condition is fulfilled turns on a preliminary assessment offact by the judge, it remains a question of law because "the absenceof legal justification for admitting evidence at trial involves a questionof law".[47] In R v Hughes the Supreme Court dealt with the test for a dischargewithout conviction under ss 106 and 107 of the Sentencing Act 2002.41 TheCourt treated the question of whether the test under s 107 was met as a matter37 Taipeti v R, above n 34.38 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.39 At [49] and [51].40 R v Gwaze, above n 38, at [51] (footnotes omitted).41 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.of fact requiring judicial assessment.42 Once the s 107 threshold was met, thediscretionary power for a court to discharge without conviction arose.Similarly, in Fagan v Serious Fraud Office this Court described the approachto suppression of a defendant's identity under s 200 of the Criminal ProcedureAct 2011 as a two-stage analysis.43 The court must first be satisfied that oneof the consequences listed in s 200(2) would be likely to follow if no orderwere made. If it is satisfied that one of the threshold grounds is established,the court then has a discretion as to whether or not a suppression order shouldbe made.[61] The Court also referred to its own decision in Ophthalmological Society ofNew Zealand Inc v Commerce Commission, in which McGrath J said:44A key indication of a discretion is whether the area for personal appreciationby the first instance court or decision maker is large. In the context of theorders and decisions of Masters, whether the interests involved in a particularmatter are purely procedural, or concern wider issues of principle in relationto the application of the law to the facts, will also be relevant to whether adecision is discretionary in nature. In the latter type of case it may more readilybe seen that ultimately only one view is legally possible, even if there is scopefor considerable argument as to what it is. If that is the case the decision makerdoes not have the margin of appreciation inherent in discretion.[62] The Court concluded that "[t]hree possible indicia of the presence of discretionemerge" from the authorities:45[49] These decisions show that the classes of case which appeal courts classifyas an exercise of a discretion are dwindling.46 Three possible indicia of thepresence of discretion emerge. First, the extent to which the decision-makercan apply his or her own "personal appreciation" has been identified as a "keyindication".47 Clearly, the greater the level of prescription in terms of what isrequired of the decision-making process the more likely the decision is anevaluative process, rather than the exercise of a discretion. Second, proceduraldecisions are more likely to be an exercise of discretion than wider issues ofprinciple involving the application of law to the facts. Third, if only one viewis legally possible, that points away from a discretion. In other words, wherethere is scope for choice between multiple legally "right" outcomes, thatpoints towards a discretion.[50] Nevertheless, a review of the decisions confirms Tipping J's observationthat the distinction between a discretionary decision, giving rise to limitedreview, and an evaluative judgment, giving rise to a general review of the42 R v Hughes, above n 41, at [8].43 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]. See also Robertson v Police [2015] NZCA7 at [39]–[41].44 Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145 (CA)at [37] as cited in Taipeti v R, above n 34, at [48].45 Taipeti v R, above n 34.46 See also Financial Markets Authority v Vivier and Co Ltd [2016] NZCA 197, [2016] 3 NZLR 70at [40]–[46].47 Ophthalmological Society of New Zealand Inc v Commerce Commission, above n 47, at [37].merits, is incapable of precise definition. Indeed there are now voices thatquestion whether the distinction continues to have any value.48[63] Applying these principles, the Court held, contrary to earlier authority, thatdecisions granting bail are evaluative decisions (that is, requiring judgment) whichwarrant a full review on appeal. It said:49[51] The provisions of the Act dealing with pre-trial bail have created adecision-making process that involves an evaluation of stated factors, ratherthan an unconstrained freedom to choose. The language of the statute isprecise. There is no room for vagueness or instinct in the process. In contrastto the previous regime, there is a defined standard according to which thedecision must be made. There are mandatory considerations. There is nodiscretion to refuse bail if the statutory criteria for continued detention are notmet.(Footnotes omitted)[64] In contrast to the position in New Zealand, English jurist Francis Benniondraws a clear distinction between judgment and discretion in his article"Distinguishing judgment and discretion" and in his text Bennion on StatutoryInterpretation: A Code.50[65] It should be emphasised that Bennion's somewhat more emphatic approach isnot the law in New Zealand; indeed, as noted above, the courts have declined to drawa precise distinction between judgment and discretion. Moreover, Bennion's approachis only one view of the distinction. As Ellen France J noted in delivering the annualEthel Benjamin commemorative address for 2011, Bennion prefers "to identifydiscretion by contrasting it with judgment" (with there being no overlap between thetwo concepts), whereas other commentators have favoured "defining discretion byreference to the existence of choice".51 Nevertheless, Bennion's explanation is helpfulfor understanding the hallmarks or indicia of judgment versus discretion, which arealso identified in the New Zealand authorities.48 See MB Rodriguez Ferrere "The Unnecessary Confusion in New Zealand's AppellateJurisdictions" (2012) 12 Otago Law Rev 829.49 Taipeti v R, above n 34.50 Francis Bennion "Distinguishing judgment and discretion" [2000] Public Law 368; and FARBennion Bennion on Statutory Interpretation: A Code (5th ed, LexisNexis, London, 2008)[Bennion on Statutory Interpretation] at 123–130.51 Ellen France "Discretion, diversity, and other matters of judgment" (Ethel Benjamincommemorative address, 19 August 2011) at 8 and 11–12.[66] According to Bennion, the function of judgment is to assess a situation whichrequires a definitive answer.52 The term "evaluate" may be used.53 Certain criteria,which may be express or implied, determine the choice of result.54 These criteria areinflexible, meaning there is notionally only one right answer.55 Therefore, judgmentis necessarily restricted because its sole purpose is "to arrive at a conclusion of fact orlaw which accurately reflects reality".56 Bennion notes that in practice there may bewhat Lord Bingham CJ called "the area of judgment".57 Depending on the precisionwith which the relevant criteria are identified, different decision makers maylegitimately arrive at differing outcomes.58[67] Bennion explains that discretion, on the other hand, requires the decisionmaker to determine how to exercise a power of choice.59 Discretion "is usually to beapplied where it is expressly left to the judge to make a determination at any pointwithin a given range", for example when fixing a sentence at a point within theavailable range of punishments.60 Bennion observes that a discretion may also relateto two possible alternatives, giving the example of a decision on leave to appeal:61If asked to give leave to appeal a judge may either grant leave or refuse it. Thisis discretion not judgment because the decision is left to the judge, and thereis no "right" answer.[68] Bennion emphasises that "[d]iscretion is free, except for limitations placedupon it (expressly or impliedly) by the defining formula under which it is conferred"(emphasis added).62[69] Viewed against this backdrop, I consider the Chief Executive's power toapprove a recognised course of study as a full-time course is a discretionary power. It52 Bennion "Distinguishing judgment and discretion", above n 50, at 369.53 Bennion on Statutory Interpretation, above n 50, at 125.54 Bennion "Distinguishing judgment and discretion", above n 50, at 369.55 At 369.56 At 368.57 R v Criminal Cases Review Commission, ex parte Pearson [1999] 3 All ER 498 (QB) at 523 ascited in Bennion "Distinguishing judgment and discretion", above n 50, at 369.58 Bennion "Distinguishing judgment and discretion", above n 50, at 368.59 At 373.60 At 370. Similarly, in New Zealand, sentencing is "the classic illustration" of a discretionarydecision: France, above n 51, at 6 citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; andsee Heke v R [2010] NZCA 476.61 Bennion "Distinguishing judgment and discretion", above n 50, at 370.62 At 368.involves the exercise of a choice, rather than an evaluation of facts against certain legalstandards in respect of which there is only one "right" legal outcome. Like theexample given by Bennion of a Judge either granting leave to appeal or not, the ChiefExecutive is empowered to approve a recognised course of study as a full-time courseor not. The decision is left to the Chief Executive and there is no "right" answer.[70] But while the power to approve (or not approve) a recognised course of studyas a full-time course is a discretionary power, the exercise of that power is notunconstrained. The limits on what might at first blush appear to be a broad discretionwere explained by the Court of Appeal in Department of Internal Affairs v WhitehouseTavern Trust Board, in which the Court stated:63[88] But, like all such wide discretionary powers, the power conferred onthe Secretary by s 116 is not unfettered. It must be exercised lawfully inaccordance with the relevant legislative purposes and provisions and takinginto account all mandatory and relevant considerations.[71] Similarly, when exercising a discretionary power, a decision maker must nottake into account irrelevant considerations.64[72] Furthermore, as the authors of De Smith's Judicial Review explain, "[t]here aredegrees of discretion, varying the scope for manoeuvre afforded to thedecision-maker."65Are a student's personal circumstances relevant when exercising the discretionarypower to approve a recognised course of study as a full-time course?[73] For the reasons that follow, I accept the Ministry's submission that theChief Executive's power to approve a recognised course of study as a full-time courseis limited to doing so by reference to the quantitative attributes of the course of studyitself,66 and that a student's personal circumstances are irrelevant.63 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR1708 (footnotes omitted).64 Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 356;and see Philip A Joseph Constitutional and Administrative Law in New Zealand (online ed,Thomson Reuters) at [2.23.2.3].65 Harry Woolf and others (eds) De Smith's Judicial Review (8th ed, Sweet & Maxwell, London,2018) at [5-006].66 Likely, but not required, to reflect case load.[74] When deciding whether to approve a recognised course of study as "a full-timecourse", the focus is the attributes of the course of study itself, rather than the student'sown circumstances or approach to that course of study. This can be illustrated by, forexample, the distinction between "a full-time course" and studying on a full-timebasis. The former describes one attribute of the course (being a quantitative feature),whereas the latter describes the student's actions in relation to that course. The twoare quite different concepts, and the submissions made on the respondent's behalf donot, in my view, appropriately recognise this distinction.[75] That a full-time course is to be determined by reference to the attributes of thecourse itself and not a student's activity is consistent with a student being "enrolledin" a full-time course. As the Ministry submits, either someone is "enrolled in" aparticular type of course or they are not, and that question cannot be affected by howa student approaches their study or what additional commitments they might have.This approach is also evident in the definition of a "dependent student", which isdefined in part as someone who is "attending a full-time course".67 Either someone isattending a full-time course or they are not.[76] This approach is reinforced by the definition of "recognised course of study",being one component of the definition of "a full-time course". A "recognised courseof study" is "a course of study leading to the completion of a recognisedprogramme".68 This again focuses on the course of study itself (by reference to aqualitative feature), rather than the manner in which any individual student approachesthat course of study.[77] All of this is, in my view, consistent with the ordinary meaning of "full-time"in the context of the Regulations, namely an objective measure of the amount of timethat a particular course of study is expected to occupy. A useful analogy is the conceptof "a full-time job". In its ordinary sense, this conveys a job that is expected to occupya certain number of hours per week.67 Student Allowances Regulations 1998, s 2.68 Section 2.[78] Other aspects of the Regulations confirm that a "full-time course" is to beobjectively defined by reference to its quantitative attributes. For example:(a) As noted at [42] above, reg 30(1) requires the Chief Executive tosuspend a student's basic grant where the courses the student has passedare equivalent to "half of or less than half of a full-time course".It would be impossible for the Chief Executive to make such adetermination under reg 30 unless the concept of a "full-time course"were determined by some objective measure that was capable ofquantification.(b) Similarly, under reg 12A, the Chief Executive may approve a course ofstudy for a student that is "less than a full-time course". Again, the needto determine whether something is "less than" a full-time coursesuggests that there is a "hard" or objective "edge" to what is approvedas a full-time course by the Chief Executive.(c) A similar theme is seen in reg 12A(1)(b)(iii), which refers to "a course,or combination of courses, that constitutes more than half of a full-timecourse".69 Again this suggests an objectively quantifiable attribute ofthe course or combination of courses, rather than an individual student'spersonal circumstances and approach to their study.(d) Finally, reg 30(2) refers to passing "the required proportion of afull-time course". A "required proportion" of a full-time course againindicates an objective quantification of what makes up a full-timecourse.[79] Drawing these threads together, the Chief Executive's power to approve arecognised course of study as a "full-time course" is to be exercised by reference tothe quantitative attributes of the course of study itself. A student's personal69 See also Student Allowances Regulations 1998, regs 12A(2) and 32 and sch 2, which all refer to"more than half" a full-time course.circumstances, including the amount of time they devote to their studies, are irrelevantto the exercise of the Chief Executive's discretion.[80] Before leaving the text and context of the Regulations themselves, two furthermatters fortify the above approach:(a) First, reg 12A specifically provides for the Chief Executive to take intoaccount a student's personal circumstances, though in a highlyprescribed way. I accept the Ministry's submission that the presence ofreg 12A as a "backstop" for students with difficult personalcircumstances suggests that the Chief Executive will not already beconsidering those circumstances when deciding whether or not toapprove a course of study as a full-time course.(b) Second, the approach advocated for on the respondent's behalf wouldrender the abatement regime under the Regulations redundant (orlargely redundant). As explained, the abatement regime is predicatedon a student's weekly income, and when that income reaches a certainlevel, the grant abating to zero. This would not be necessary if a studentwas only deemed to be "enrolled in a full-time course" in the first place(and thus eligible for the grant) if they pursued their course of study astheir predominant activity. I accept Mr Hoffman's broad propositionthat the thrust of the Regulations is to "look after" those students whosepredominant activity is studying and not doing something else. But thatis reflected in the basic grant being abated the more a student is in fact"doing something else" (namely working), rather than in the concept ofthe student being "enrolled in a full-time course".[81] The approach outlined at [79] above is also more consistent with commonsense, and promotes transparency and certainty. It avoids creating arbitrarydistinctions between students studying an identical course load. It also enablesstudents to clearly understand what is required for them to be "enrolled in a full-timecourse" and their resulting entitlement to allowances, and to plan accordingly.[82] Accordingly, while I accept Mr Hoffman's submission that study being astudent's "predominant activity" is an objective measure, the difficulty is that such ameasure, which focuses on the student's activity rather than the attributes of the courseof study, is simply not evident in the Regulations themselves. The example given byMr Hoffman of certain benefits payable in relation to a child whose care is the"primary" responsibility of the recipient does not assist. That threshold for paymentis expressly tied to the recipient's personal circumstances.[83] I also do not agree that the concept of a student actually studying full-time, orstudy being a student's predominant activity, remains "embedded" in the Regulationsdespite the removal of that express requirement from the 1976 Regulations in 1980.70To recap: one of the two requirements of the holder of a tertiary bursary under the1976 Regulations was that the student was "pursu[ing] in New Zealand as a full-timestudent a full-time programme".71 Importantly for present purposes, this reflectsthe two distinct concepts discussed at [74] above, the first directed to the studenthimself or herself, the second to the programme or course.[84] Nothing has been found to explain the rationale for the removal of therequirement in the 1976 Regulations to pursue a full-time programme as a full-timestudent. The concept of being "a full-time student" did not disappear altogether,however, but was shifted elsewhere, to two supplementary grants available where astudent's individual circumstances might affect the way he or she approached his orher studies.72 The removal of the concept from eligibility for a student grant and ashift to the supplementary grants tends to suggest a deliberate change. Later iterationsof the Regulations do not shed any further light. The two supplementary grants didnot feature in the Student Allowances Regulations 1988, and the concept of pursuingstudy "as a full-time student" has not featured in the student allowances regulationsagain.70 Tertiary Assistance Grants Regulations 1980, reg 19(2)(b).71 Tertiary Bursaries Regulations 1976, reg 7. The concept of being "enrolled as a full-time student"was undefined.72 The first was a supplementary hardship grant, available where the recipient of a study grant wouldotherwise suffer financial hardship and be "unable to pursue his studies as a full-time student"(Tertiary Assistance Grants Regulations 1980, reg 37(1)); and the second a special grant, availablewhere the recipient of a study grant had a spouse and dependent children or other exceptionalcircumstances, and would otherwise suffer financial hardship and be "unable to pursue his studiesas a full-time student" (reg 38(1)).[85] Whatever the rationale for these legislative changes, however, the presence ofthe requirement to be a "full-time student" in the 1976 Regulations does not in myview assist the respondent's argument, and if anything, undermines it. As notedalready, it serves to highlight the distinction between being a full-time student andbeing enrolled in a full-time course.[86] I also do not accept Mr Hoffman's suggestion that there must be sufficientleeway in the Chief Executive's discretionary power to approve something as afull-time course by reference to attributes unrelated to course load, such as (to use theexample given by counsel) declining to approve a course of study as a full-time courseon the basis that its content is objectionable. What the Chief Executive is to approve(or not approve) as a full-time course is a "recognised course of study". That is acourse of study leading to a "recognised programme".73 As can be seen from thedefinition of the latter term, the gist of that definition is a programme of some merit,approved as such by the relevant regulators. A truly objectionable course of studywould not lead to a "recognised programme" and thus would not be a "recognisedcourse of study". That is the proper place for the assessment of the qualitativeattributes of a course of study, leaving approval as a full-time course focused on itsquantitative attributes.[87] Finally, but no less importantly, the approach adopted is consistent with therelevant legislative purposes. As the Ministry notes, different policies and purposesapply to the provision of state assistance to those in hardship generally, and to thosestudying in New Zealand. Key purposes of the SSA are to help people to supportthemselves and their dependants while not in paid employment, to help people forwhom work is not currently appropriate and to provide financial support to alleviatehardship.74 In other words, to help those who are unable, for a variety of reasons, tohelp themselves. The purpose of the Regulations is to provide targeted financialsupport to those studying in New Zealand. Reflecting the long-term economic benefitsaccruing to individuals from undertaking tertiary education, student support is sharedbetween taxpayers, individual students and their families.75 Because of these different73 Student Allowances Regulations 1998, s 2.74 SSA, s 3.75 See [18] above.underlying policies and purposes, the SSA is clear that financial assistance to studentsis to be determined under the bespoke regime for such support, namely theRegulations. In relation to the accommodation supplement in particular, that is thevery purpose of s 67 of the SSA.[88] For these reasons, it is not a perverse outcome that a student enrolled in afull-time course might receive neither the accommodation supplement under the SSAnor the basic grant under the Regulations. On the contrary, such an outcome isexpressly envisaged by s 67(b)(iii) of the SSA.Result[89] The respondent's approach to her studies and her other commitments,including the care of her two children and work, is to be commended. One canunderstand the Authority's view that there was a degree of unfairness in the respondentlosing her accommodation supplement, yet not being entitled to the basic grant underthe Regulations by simply increasing her course load to complete her studies asquickly as possible. Yet this was not a perverse outcome or a legislative quirk underthe statutory regime. Rather, it was an anticipated consequence of the statutoryregime, and s 67(b)(iii) of the SSA in particular.[90] The Authority accordingly erred in law when deciding whether to approve therespondent's recognised course of study as a full-time course by taking into accountan irrelevant consideration, namely the respondent's work and other personalcommitments. The answer to the question of law stated by the Authority for theopinion of the Court is therefore "yes".[91] I do not make any further orders at this stage, in terms of whether the Courtshould reverse, amend or remit the Authority's determination, or make any other orderthat is just. I am conscious that reversing the Authority's determination may, if therespondent has been paid the accommodation supplement in the period following theAuthority's decision, require her to repay that supplement, which may be a significantamount given the effluxion of time in the Ministry's appeal being heard anddetermined, over which the respondent had no control.[92] I invite the parties to confer and ideally file a joint memorandum within15 working days of the date of this judgment as to whether any further orders arerequired from the Court. If a joint memorandum is not possible, separate memorandaare to be filed within the same timeframe. The memorandum or memoranda shouldalso address the question of costs.[93] Unless I need to hear further from counsel, I will then determine any remainingmatters on the papers._______________________Fitzgerald J