CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v CV [2019] NZHC 3135

CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v CV [2019] NZHC 3135 [29November 2019]ORDER PROHIBITING DISCLOSURE OF RESPONDENT'S NAMEIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-485-216[2019] NZHC 3135IN THE MATTER of an appeal by way of case stated undersection 12Q of the Social Security Act 1964BETWEEN CHIEF EXECUTIVE OF THE MINISTRYOF SOCIAL DEVELOPMENTAppellantAND CVRespondentHearing: On the papersAppearances: O Upperton for the AppellantRespondent in personH Peart counsel appointed to assist the CourtJudgment: 29 November 2019JUDGMENT OF MUIR JThis judgment was delivered by me on 29 November 2019 at 11.30 ampursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:Solicitors:Crown Law, Wellington.Schmidt & Peart Law Ltd, OnehungaCopy to:RespondentIntroduction[1] The Chief Executive of the Ministry of Social Development (the ChiefExecutive) appeals by way of case stated from a decision of the Social Security AppealAuthority (the Authority).1 The Chief Executive, the respondent and counselappointed to assist the Court, Mr Peart, all agree that the appropriate outcome is anamendment of the case stated as filed, and orders quashing the Authority decision andremitting the matter to the Authority for reconsideration. I intend to order accordingly.BackgroundThe respondent's complaint[2] The respondent became eligible for New Zealand Superannuation (NZS) on 19April 2012 when he turned 65. He was at that time in fulltime employment and didnot consider himself eligible for NZS. He ultimately applied for superannuation on7 October 2015 and NZS commenced from that date.[3] Through various review and appeal processes, however, the respondent soughtto have his NZS backdated to the date when he turned 65. He relied on s 80AA(2)(a)(i)of the Social Security Act 1964 (the Act) which allows the Minister of Social Welfareto consent to payment of a benefit from a time earlier than application if the benefithad not been applied for or granted due to "some erroneous action or inaction on thepart of the Department". Although that argument was rejected by the Department'sDeputy Chief Executive (acting under delegated authority of the Minister) andalthough this decision was upheld by the Benefits Review Committee, a further appealby the respondent to the Authority was successful.The Authority's decision[4] The Authority considered that the factual background relating to the appealwas not in dispute. Significantly, the Authority recorded that the respondent's statedreason for not applying for NZS on the date he turned 65 was that, "he was not awarethat he was entitled to NZS while he was in paid employment".21 In the Matter of an Appeal by [the respondent][2018] NZSSAA 029.2 At [4].[5] The decision records acceptance by the respondent that he received a letterfrom Inland Revenue (IRD) "when he turned 65",3 but he stated that the IRD lettercontained nothing to indicate he would be eligible for NZS while working, nor did itrequire him to complete an application. He also said he did not expect the IRD to besending him information "relating to some benefit" because "IRD take money fromyou".4[6] Although the letter from IRD was not produced to the Authority (and the ChiefExecutive said it was not within her power to request it), the evidence as to its contents(and in particular the absence of reference to his having an entitlement to NZS despitepaid employment) was accepted by the Authority.[7] The Authority's reasons for allowing the appeal are contained in the followingparagraphs:[19] We asked Ms Ji whether the Ministry had considered whethers 80AA(2)(b) imposed any obligation on it to provide better information to aclass of people such as immigrants, however she was not aware of anysituation where the Ministry had done so. In our view, this is the purpose ofs 80AA(2)(b) of the Act. It imposes on the Ministry a duty to provide peopleof a certain kind or description with more extensive, targeted informationand/or services than it generally provides.[20] The High Court decision in I A M can be distinguished from the casebefore us as the appellant in I A M had received various benefits for some 12years before reaching the age of entitlement for NZS and there is nosuggestion that he was unfamiliar with the social welfare system. The issuethe High Court considered in that case was the extent of the Ministry'sobligation to advise persons generally of their entitlement; the Court was notaddressing the provision in s 80AA(3) of the Act.[21] We consider that, at the time the appellant reached the age of 65, theinformation generally provided by the Ministry did not adequately explain thecriteria for NZS entitlement to people who emigrated to New Zealand fromcountries which did not have similar provisions for social welfare. Thequestion is whether the failure to do so constitutes an error as defined by s80AA(3) of the Act.[22] Providing information only through the IRD, which did not state thatpeople in paid employment were eligible for NZS, and failing to make theuniversal application of NZS clear to immigrants who had not engaged withthe social welfare system was an omission to provide the information3 The evidence now establishes that it was sent approximately seven weeks prior to his birthday.4 The evidence now establishes that the letter, although on IRD letterhead was signed jointly by themanager of IRD and the National Manager, Senior Services of the Ministry of SocialDevelopment.necessary for an application for NZS by a person in the appellant's situation.We are satisfied that this omission by the Ministry meets the definition of anerroneous action under s 80AA(3)(b) and that, as a result of the error by theMinistry, the appellant failed to apply for NZS when he turned 65.[8] I note the following in respect of this analysis:(a) Paragraph [22] confirms the Authority's acceptance of the respondent'sevidence about the content of the IRD letter.(b) The Authority does not identify that, although the letter was on IRDletterhead, it was co-signed by both the Manager of IRD and theNational Manager, Senior Services of the Ministry of SocialDevelopment.5(c) Although the respondent had advanced his case on the basis that he wasa "particular applicant" who could not reasonably have been expectedto apply at an earlier time because of erroneous Departmental action orinaction (s 80AA(2)(a) of the Act), paragraph [19] of the decisionsuggests an analysis based on s 80AA(2)(b). This section relates toapplicants of a "kind or description who could not reasonably have beenexpected to apply earlier because of erroneous action or inaction".(d) The summary of reasons provided in paragraph [22] of the decisiondoes not identify whether the decision proceeds on the basis of therespondent's status as a "particular applicant" or as an applicant of a"kind or description".Case stated appeal[9] The Chief Executive appealed from this decision by way of case stated underPart 21 of the High Court Rules 2016. The case stated is that of the Chairperson ofthe Authority.5 Its omission in this respect had its evident origins in the submission made by the Chief Executive'sagent and recorded at [12] of the decision.[10] Paragraph [3] of the case stated records the facts of the case as determined bythe Authority to be:(a) The respondent received a letter from the IRD sometime before heturned 65 which did not state that people in paid employment wereeligible for NZS.(b) The respondent turned 65 on 19 April 2012.(c) The respondent submitted his superannuation application on 7 October2015 and was granted superannuation from that date.(d) The respondent states the reason he did not apply for superannuationon the date he turned 65 was that he was not aware that he was entitledto superannuation while in paid employment.[11] The questions of law submitted for the opinion of the High Court were asfollows:(a) Did the Authority err in law in finding the Chief Executive has a dutyto provide people of a certain kind or description with more extensive,targeted information and/or services than it generally provides?(b) Did the Authority err in law in finding the Chief Executive has a dutyto make it clear to immigrants who had not engaged with the socialwelfare system that NZS is universal and available to people in paidemployment.[12] It will be observed that, in the form filed, the case had as one of its essentialfactual premises that the respondent had not been told he was entitled to NZS despitepaid employment. This reflected the Authority's acceptance of the respondent'sevidence that the letter received by him on IRD letterhead had not alerted him to thatfact – a conclusion which it reached without sighting the actual correspondence.[13] Subsequently, however, the respondent has obtained a copy of the relevantletter from the IRD. It is now clear that his assumptions about its content wereincorrect. Under the heading "Applying for New Zealand Superannuation (NZSuper)" the letter, among other things, stated:As you are about to turn 65 you may be able to get NZ Super.To get NZ Super you must be 65 years old or over and have lived in NewZealand for at least 10 years since you turned 20 – five of these years must besince you turned 50. There are some exceptions to these residencyrequirements and you will find details about them on our websitewww.seniors.msd.govt.nz.You can still receive NZ Super if you are working.[14] The letter then went on to emphasise the importance of a prompt applicationbecause "if you apply after you turn 65 your payments will only start from the dateyou applied". Details of how to apply were included.[15] On 26 November 2019 (the day before the scheduled hearing of the appeal) Ireceived a joint application by the Chief Executive and the respondent (endorsed byMr Peart), seeking leave to adduce new evidence on the appeal. The proposedevidence included a copy of the letter dated 27 February 2012 explaining therespondent's potential entitlements (subject to residency requirements).[16] As a result, I convened a short notice telephone conference with the parties andMr Peart. At the commencement of the conference I granted the application to adducefurther evidence. I then raised with counsel and the respondent what I saw as theimplications of such an order in terms of the case stated. I suggested that, in light ofthe new evidence, the Authority's decision appeared to have proceeded on the basis ofa factual finding which was demonstrably incorrect and that the error of fact was ofsuch magnitude as to probably qualify as an error of law under the well recognisedtest in Edwards v Bairstow.6 I requested counsel and the respondent to reflect on howthis might impact on the intended process and whether the appropriate course might6 Edwards v Bairstow [1956] AC 14 (HL) at [36].not be to reformulate the case stated, allow the appeal on the basis of this newlyidentified error of law and to remit the matter to the Authority for reconsideration.[17] I subsequently received a joint memorandum (supported by Mr Peart), seekinga consent judgment in the following terms:6.1 The case stated is amended7 by removing the two questions of lawstated to the Court and substituting the following question:6.1.1 Did the Authority err in law in finding that the letter sent to[the respondent] on 27 February 2012 did not state that peoplein paid employment were eligible for New ZealandSuperannuation?6.2 The new question of law is answered "yes" on the basis of the newevidence admitted by direction of the Court on s6 November 2019.6.3 The Authority decision under appeal is quashed.6.4 The matter is remitted to the Authority for reconsideration in light ofthe judgment and newly admitted evidence.6.5 The hearing scheduled for 27 November is vacated and appearancesexcused.6.6 No order is made as to costs.[18] I vacated the hearing accordingly.Discussion[19] I accept the proposed consent orders as appropriate. The Court cannot assumethat, if the facts were correctly before the Authority, the same result would follow.Moreover, even if it were to do so, the Authority's reasoning would necessarily bedifferent. The existing decision is not, therefore, a satisfactory basis on which theHigh Court should give guidance on matters of principle – in particular as to the extentof any duty to communicate with those not ordinarily in contact with the Departmentor immigrant groups.[20] I do not at this stage consider it appropriate to give detailed guidance on theseunderlying principles. As indicated, their relevance cannot be assumed in the context7 High Court Rules 2016, r 21.12(2).of a new decision premised on accurate factual findings. I say no more than toemphasise that:(a) On the established authorities, before the Chief Executive is under anyobligation to provide "active assistance" to any individual, his/herneeds must be broadly communicated, typically by way of a claim.8Moreover, the Chief Executive is under no obligation to correct amisapprehension of which the Ministry is unaware.9(b) This background necessarily informs the proper ambit of ss 80AA(2)(a)and (b), to the extent that a failure to communicate at all with therespondent prior to his 65th birthday about his potential NZSentitlements would not, on the existing authorities, appear to constitutean "erroneous inaction".(c) The question for the Authority on remission will therefore be whetherthe letter received by the respondent on 27 February 2012 – a letter sentvoluntarily rather than in fulfillment of any statutory duty – couldqualify as an erroneous action or inaction on account of some identifieddeficiency in its terms, taking into account the fact that the principalcriticism the respondent made of that letter (that it did not identify hisentitlement to NZS despite continued paid employment) has now beenidentified as inaccurate.Result[21] I amend the case stated on appeal by deleting the two questions of law referredto in the case stated, dated 16 April 2019, and substituting the following new question:(a) Did the Authority err in law in finding that the letter sent to therespondent on 27 February 2012 did not state that people in paidemployment were eligible for NZS?8 Taylor v Chief Executive of Department of Work and Income [2005] NZAR 371 (HC) at [16],Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418 at [44].9 I A M v Chief Executive of the Ministry of Social Development [2013] NZHC 762 at [26].[22] I answer the new question in the affirmative.[23] I quash the decision of the Authority dated 16 May 2018.[24] I remit the matter to the Authority for reconsideration, in light of this judgmentand the newly admitted evidence.Timing of remitted hearing[25] I am advised that, despite the terms of the Authority's decision, the respondenthas not yet received NZS for the period between his 65th birthday and the date of thesubsequent application. It will be apparent from this judgment that the road toresolution of his claims has been prolonged and difficult. It is unfortunate that as aresult of the factual error made by the Authority, the matter must again be remitted toit for reconsideration. In these circumstances this Court respectfully requests thatpriority be given to the remitted hearing.Costs[26] By agreement of the parties, no order as to costs is made.__________________________Muir J