THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v PORT [2016] NZHC 1314

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v PORT [2016] NZHC 1314[16 June 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2016-485-51[2016] NZHC 1314IN THE MATTER of an appeal by way of case stated fromthe determination of the Social SecurityAppeal Authority at Wellington unders 12Q of the Social Security Act 1964BETWEEN THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTAppellantAND DEBBIE PORTRespondentHearing: 9 June 2016Counsel: I Clarke and A Allan for AppellantS Fraser for RespondentJudgment: 16 June 2016JUDGMENT OF SIMON FRANCE JIntroduction[1] The Chief Executive appeals by way of case stated against a decision of theSocial Security Appeal Authority which directed the Chief Executive to contribute topayments Ms Port was incurring in relation to an item of gym equipment.1 Thepayments have been directed to be included as part of an assessment of Ms Port'sdisability costs. The sum is $26.84 a week, being a part payment of the obligationMs Port has incurred.1 In Re Port [2015] NZSSAA 47.[2] Whilst three questions have been stated, I am satisfied that an issue wrappedup in the first stated question is determinative and so immediately address that.[3] Ms Port purchased an item of gym equipment having seen it advertised. Thepurchase price was $3,000, which Ms Port arranged to pay in 72 instalments. Sheapplied to have this expense included within her disability allowance. The ChiefExecutive declined but Ms Port successfully appealed to the Social Security AppealAuthority.[4] Disability payments are provided for in s 69C of the Social Security Act 1964.There are various conditions that must be met before the Chief Executive's discretionis engaged, but relevant here is s 69C(2A) which provides:(2A) A disability allowance is not payable to or on account of any personexcept to the extent that—(a) the person has additional expenses of an ongoing kind arisingfrom the person's disability (subject to section 68A); and(b) the assistance towards those expenses available under this Actor any other enactment is insufficient to meet them.[5] The Chief Executive submits, and I consider correctly, that the expenseincurred by Ms Port is not an expense of an ongoing kind. It is the one-off acquisitionof an item, albeit that Ms Port has arranged to make payment by instalments. Theintent of the section is to prescribe for repeating costs that occur because of thedisability. It cannot be said that the need to purchase a stair climber or other suchpiece of equipment is ongoing, or repeating.[6] The centrality of "ongoing" is further emphasised by s 69C(2) which identifiesthe necessary characteristics of a disability, which include that there be a need for"ongoing support" or "ongoing supervision".[7] As is contemplated by the Act, the Minister has issued directions to the ChiefExecutive concerning how the provision is to be approached.2 These repeat theemphasis on an ongoing expense. Ms Clarke, on behalf of the Chief Executive, draws2 Social Security Act 1964, s 5.further support from the legislative process. Although I consider little can be read intoit, I record that some submissions to the Select Committee queried this restriction ofthe disability allowance to ongoing expenses, noting that irregular or one-off costs canbe equally legitimate. Departmental advice to the Committee was that the limitationwas intended, and that one-off expenses could be addressed under other programmes.The draft bill remained unchanged.[8] It is important to note that the disability allowance can cover goods andconsumables; it is just that the need for the particular good must be recurring.Ms Clarke cites batteries for hearing aids as a recurring expense that is covered.[9] Mr Fraser submitted that whether something was ongoing was a question offact and degree, and did not raise a point of law. He cited a gym membership, whicheveryone accepts is a permissible expense, but which can be paid for in a lump sum orby instalments. It is a fair point, but one which ultimately counts against his position.What it emphasises is that the true nature of the expense must be considered, ratherthan how it manifests. Gym membership is an ongoing recurring event; purchasing asignificant piece of gym equipment for home use (which is the "expense" for thepurposes of the section) is plainly a one-off event.[10] Mr Fraser's submission highlights that where lines are drawn can lead tosomewhat arbitrary results. For example, it would seem the rental costs of hiring thisequipment could be provided for out of a disability allowance, but not its purchase. Itis to be noted, however, that usually there will be a different programme or grant thatcould potentially cover the matter if the merits permit.[11] I am satisfied there is a question of law, which is whether a one-off expensecan be converted into an expense of an ongoing kind by arranging for payment to bemade in instalments. The answer is no.[12] The other questions concerned whether the Authority correctly approached theissue of causation, and whether the quantum of the payment was permissible.Concerning causation I would not have allowed the appeal. Although it was asurprising conclusion to find that the expense arose from the disability, it was not aconclusion that could not be reached. Accordingly no point of law arises.[13] The third issue concerns the quantum of the contribution. It is plain theAuthority erred. The amount of contribution, when added to the sums already beingreceived, exceeds the maximum that Ms Port can receive by way of disabilityallowance. An adjustment would have been required. The Chief Executive notes thatthe extra could have been assessed under the Temporary Additional SupportProgramme but this was not considered by the Authority. If it had been necessary Iwould have reduced the quantum to the maximum available, namely $15.48, andremitted the adjustment back for consideration of the applicability of the TemporaryAdditional Support Programme.Conclusion[14] The appeal must be allowed as the expense is not one that comes within thedisability allowance. It is not of an ongoing kind. I cancel the directions of the SocialSecurity Appeal Authority that the Chief Executive must contribute to Ms Port'spayments.[15] The question of whether it was an expense of an ongoing kind, and the issueof how much could be paid under Ms Port's allowance, were not raised orally by theappellant in front of the Authority. In those circumstances I consider costs should liewhere they fall.[16] Ms Port sought name suppression. It would be an exercise of the inherentjurisdiction to grant it. While I appreciate that publicity is distressing, the AppealAuthority decision was covered in the media without name suppression. It would notbe appropriate at this stage to now suppress the further appeal. Anonymisation of therespondent's name would be futile given the detail that is already in the public domain,and would cause undue complexity as regards past publication. The application isdeclined.___________________________Simon France J