THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT V THOMPSON AND SAUNDERS HC WN CIV-2009-485-1281

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT V THOMPSON AND SAUNDERS HC WN CIV-2009-485-1281 11 February 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-1281IN THE MATTER OF an appeal by way of case stated from a determination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security Act 1964 BETWEEN THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Appellant AND PATRICIA THOMPSON and BRYAN SAUNDERS Respondents Hearing: 10 December 2009 Appearances: E Child for the appellant No appearance for the respondents P McKenzie QC and K McKenzie-Bridle as amici curiae Judgment: 11 February 2010JUDGMENT OF CLIFFORD JIntroduction[1] This is an appeal by the Chief Executive of the Ministry of Social Development ("the Chief Executive") against a determination of the Social Security Appeal Authority ("the Authority") dated 27 May 2008. [2] In that determination, the Authority concluded – amongst other things – that s 86(9A) of the Social Security Act 1964 precluded the Chief Executive from recovering certain benefit overpayments from the respondents, Mrs Thompson and Mr Saunders. The Chief Executive says that decision was wrong in law.Background[3] Prior to October 2003 the respondents had, for some time, separately been recipients of benefits at the single rate under the Social Security Act and the New Zealand Superannuation and Retirement Income Act 2001. [4] On or about 16 October 2003 the respondents purchased a house together. From then on they have lived in that house together. They each continued to receive benefits at the single rate. [5] In 2005 the Chief Executive received an anonymous allegation that the respondents were living in a relationship in the nature of marriage. If that allegation was true, the respondents should have been receiving benefits at the lesser combined (married) rate. The Chief Executive investigated that allegation by interviewing the respondents. Based on the results of those interviews, the Chief Executive concluded that the respondents were not living in a relationship in the nature of marriage. That decision was communicated to the respondents by letters dated 25 November 2005. [6] In early 2006 the Chief Executive received a second allegation that the respondents were living in a relationship in the nature of marriage. The Chief Executive conducted a further investigation. As a result of that investigation the Chief Executive concluded that the respondents were living in a relationship in the nature of marriage, and had been doing so since they had purchased, and moved into, their house on or about 16 October 2003. That conclusion was communicated to the respondents on 1 June 2006. The Chief Executive sought recovery of overpaid benefits, for the period 16 October 2003 to 30 May 2006, of $5,286.49 and $4,684.06 from Mrs Thompson and Mr Saunders respectively. [7] In a decision of 24 November 2006, the Benefits Review Committee dismissed the respondents' challenge to the Chief Executive's decision they were living together in a relationship in the nature of marriage. The Benefits Review Committee reached that decision after extensive analysis of the underlying facts and circumstances. The Benefits Review Committee also upheld the Chief Executive's decision to recover overpayments.[8] The respondents then appealed to the Authority. [9] The Authority agreed with the Chief Executive that the respondents had been living in a relationship in the nature of marriage since 16 October 2003. To that extent, it dismissed the respondents' appeal. [10] The Authority went on to determine, as regards repayment, that: a) The Chief Executive was entitled to seek repayment of the benefit overpayments for the period between 16 October 2003, when the respondents commenced to live together in a relationship in the nature of marriage, until 25 November 2005, when following the first investigation the Chief Executive concluded that they were not. b) The Chief Executive was not, however, entitled to seek repayment for the period between that decision and 30 May 2006 when he advised the respondents, following the second investigation, that they were living in a relationship in the nature of marriage. In reaching that decision the Authority concluded that the 25 November 2005 decision was an error for the purposes of s 86(9A) of the Social Security Act, that the respondents had not intentionally contributed to that error, that they had thereafter received overpayments in good faith and that it would be inequitable to permit recovery. Therefore, s 86(9A) precluded the Chief Executive from seeking to recover that portion of the benefit overpayments the respondents had received.This appeal[11] This is an appeal by way of case stated on a point of law under s 12Q of the Act. [12] The points of law raised by this appeal relate to s 86(9A) of the Social Security Act, which provides:The chief executive may not recover any sum comprising that part of a debt that was caused wholly or partly by an error to which the debtor did not intentionally contribute if— (a) the debtor— (i) received that sum in good faith; and (ii) changed his or her position in the belief that he or she was entitled to that sum and would not have to pay or repay that sum to the chief executive; and (b) it would be inequitable in all the circumstances, including the debtor's financial circumstances, to permit recovery.[13] Section 86(9B) goes on to provide:In subsection (9A), error— (a) means— (i) the provision of incorrect information by an officer of the department: (ii) any erroneous act or omission of an officer of the department that occurs during an investigation under section 12: (iii) any other erroneous act or omission of an officer of the department; but (b) does not include the simple act of making a payment to which the recipient is not entitled if that act is not caused, wholly or partly, by any erroneous act or omission of an officer of the department.[14] As relevant for the purposes of this appeal, the Authority's reasoning was as follows:[35] Whilst Mr Thompson [Mrs Thompson's son who represented the respondents before the Authority] did not identify with precision the nature of the error which he maintained had been made by the Ministry in this case it seems to the Authority that the only possible error within the terms of the section which could be contended has been made is the determination by the Ministry's investigating officer conveyed to the appellants on 25 November 2005 that having completed enquiries into the appellants' benefit entitlement the enquiries had not resulted in any changes to the benefit. This communication followed the investigating officer's enquiries initiated by anonymous information received on 26 July 2005 which had led to interviews with both appellants whose written statements were obtained. [36] In light of the Authority's finding that the appellants were since 16 October 2003 living in a relationship in the nature of marriage the Ministry was in the Authority's opinion in error in reaching the conclusion as at 25 November 2005 that this was not the case.[37] The Ministry has not pointed to any acts or omissions on the part of the appellants which it relies on in constituting intentional steps by the appellants to cause the Ministry to reach a wrong conclusion apart from the proposition that the appellants failed to advise the Ministry of their circumstances. But those circumstances had been investigated by the Ministry. The impression the Authority has is that the investigating officer conducted an enquiry confined largely to quite detailed interviews with the appellants in which they answered the questions put to them. Whilst the Authority has some reservations about some of the answers that were given at that time there is no cogent evidence of an intention to contribute to the Ministry deciding in error that no relationship in the nature of a marriage existed. [38] The Authority considers that the appellants from 23 November 2005 when an error was made received the full benefits in good faith and proceeded to change their position by spending the benefits they received in the belief that following the Ministry's advice they were entitled to those benefits and would not have to repay them. In these circumstances it is considered inequitable that recovery of the benefit overpayments between 25 November 2005 and 30 May 2006 be permitted.[15] It is against those aspects of the Authority's decision that the Chief Executive now appeals. [16] The Authority has stated the following points on appeal:[i] Did the Authority err in law in finding that the Chief Executive's conclusion as at 25 November 2005 as to the nature of the relationship between Mr Saunders and Mrs Thompson was an error for the purpose of s 86(9A) of the Social Security Act 1964? [ii] Did the Authority err in law in finding that Mr Saunders and Mrs Thompson did not intentionally contribute to the error, that error being the conclusion formed in November 2005 by the Chief Executive that Mr Saunders and Mrs Thompson were not living in a relationship in the nature of a marriage? [iii] Did the Authority err in law in finding that it would be inequitable to permit recovery of the overpayment between the period 25 November 2005 to 30 May 2006?[17] I consider each point in turn.DiscussionChief Executive's conclusion as to error for purpose of s 86(9A) wrong in law?[18] It is helpful, if only to me, to place s 89(9A) in its immediate statutory context.[19] Pursuant to s 85A(f) of the Social Security Act, where a benefit is paid in excess of the amount to which a beneficiary is by law entitled, the resulting overpayment is a debt due to the Crown. Section 85A(f) is, therefore, to be seen as creating a statutory right to recover a payment that the Chief Executive has made by way of what would, in legal terms, be described as a mistake. In the absence of s 85A(f), the Crown would have to rely on the general law relating to rights of recovery for payments made or received by way of mistake in order to be able to recover such amounts. [20] Pursuant to s 86, the Chief Executive may bring proceedings in his name to recover such a debt owed to the Crown, or may do so by way of deduction from amounts otherwise payable as benefits, student loans or grants of special assistance. It is such recoveries that s 86(9A) precludes. [21] In Cowley v Chief Executive of the Ministry of Social Development HC Wellington CIV-2008-485-381, 1 September 2008 I had occasion to consider s 86, and in particular the relationship between what was there accepted as the "residual" discretion as to recovery reflected in the terms of s 86(1) and the prohibition on recovery reflected in the terms of s 86(9A). I commented:[46] Taken overall, therefore, the general presumption will be that the Chief Executive will take recovery action as regards overpayments. He may not take such steps where s 86(9A) applies. In terms of principles affecting the Crown's general discretion as to whether or not to recover debts, he may also not take such action [in terms of the so-called "residual" s 86(1) discretion] where considerations of "practicality" lead him to that conclusion. Finally, he may also not take such action where considerations of the circumstances of an individual beneficiary within the policy framework created by the Act lead to such a conclusion.[22] Section 86 has been amended on occasion over the years. The most recent significant amendments, and ones of particular relevance to this appeal, were in 2002. Section 86(9A) then read:Notwithstanding anything to the contrary in this section, the Chief Executive may, in the Chief Executive's discretion, authorise the provisional writing- off of a debt which arose as a result of an error, made by an officer or employee of the department, not intentionally contributed to by the debtor. If the Chief Executive is satisfied that the person receiving the amount so paid in error did so in good faith and has so altered his position in reliance ofthe validity of the payment that it would be inequitable in all the circumstances, including his financial circumstances, to require repayment.[23] What was, therefore, prior to the 2002 amendments, a discretionary power to write-off a debt arising as a result of an error, became a statutory provision which precluded the Chief Executive from recovering such a debt. On reflection, and with reference to my decision in Cowley, I now observe that when s 86(9A) provided a specific discretion not to recover, the terms of s 86(1) could more easily be understood as comprising a "residual" discretion than is perhaps the case now. [24] Be that as it may, in September 2002, and as relevant for these purposes, s 86(9A) was substituted by ss 86(9A) and 86(9B) as set out at [12] and [13]. At the same time, s 86(1B) was also added. Section 86(1B) provides as follows:86(1B)Nothing in section 94B of the Judicature Act 1908 or any rule of law relating to payment by or under mistake prevents recovery of a debt under subsection (1).[25] Hansard, to which I was referred to by both Mr Child for the Chief Executive and Mr McKenzie as amicus, records the following remarks being made by the responsible Minister on the second reading of the bill incorporating those amendments:The bill also makes changes to debt policy. It makes it fairer and more transparent when the Ministry of Social Development can recover a debt if it has made a mistake. Following recent High Court decisions, the debt- recovery provisions in the Social Security Act will be extended to define the word "error". The new definition of error restores to those provisions the original policy intent established by the 1972 Royal Commission on Social Security in New Zealand about when a debt should not be recovered. Recent High Court cases gave an interpretation of error that was at odds with the original policy intent. That intent was that where the department had made an error to which the beneficiary had not contributed, and which resulted in the person being overpaid, then that should be addressed. The bill does not reverse or overturn the recent High Court decisions, but it does restore the meaning of error to its original intent of an error made by the department. In the light of the High Court decisions, the bill extends the scope of current debt provisions by explicitly preventing the Ministry of Social Development from recovering a debt when the ministry has not done the right thing. I believe that the ministry, as a matter of course, should give beneficiaries correct information. It should also, as obliged under the Act, investigate an application for a benefit and ensure that the person is given the correct entitlement. Where the ministry is at fault by not doing that, the debtshould not be recovered. Those two situations are now included under the definition of error.[26] In light of those comments, it is of some assistance in resolving the first point of law raised by this appeal to consider the report of the 1972 Royal Commission on Social Security in New Zealand, as well as the "recent High Court decisions" counsel agreed were being referred to. [27] At the time of the report of the 1972 Royal Commission on Social Security, s 86 provided for recovery of an overpayment whatever the cause of the overpayment. There was no equivalent of s 86(9A), either as it was in force in 2002 or as subsequently amended. There was, in other words, no reference in the legislation to any discretion as regards the recovery of benefit overpayments. The Ombudsman, with the support of the Salvation Army, proposed that a specific statutory discretion not to recover overpayments in certain circumstances should be introduced. The Social Security Department opposed that proposition. [28] The Commission approached the issue on the basis that s 86 of the Act required recovery of an amount overpaid whatever the cause of the overpayment. It noted, however, that there were general powers under the then Public Revenues Act and the Treasury Regulations and Instructions for debts to be written off by the Audit Office and the Treasury. It went on to comment that the question of whether an overpayment should be recovered was relatively clear-cut when it resulted from a failure by the beneficiary to give correct or complete information or to notify a change in circumstances. It did not consider it to be so clear-cut, however, when the overpayment was the result of administrative error to which the beneficiary in no way contributed. Expressing the view that an insistence on recovering such payments would harm the department's public image, the Royal Commission recommended that the section be amended to provide the department with an explicit discretion to waive recovery of an overpayment of up to $100 which occurred as a result of an administrative error and to which the beneficiary in no way contributed. (at 386)[29] Following that recommendation s 86 was amended by the introduction of s 86(9A) in the terms set out at [22].[30] In those terms s 86(9A) gave the Director-General a discretion to authorise the writing-off of a debt which arose under s 85A(f) where there had been an error by an officer or employee of the department where the debtor had not intentionally contributed to that error. In those circumstances, to exercise the discretion the Director-General was also required to be satisfied that the beneficiary had received the payment in good faith, and that it would be inequitable in all the circumstances to require repayment. [31] Over time, there was a tendency to construe the provision as requiring a "culpable error", that is an error involving negligence or fault. This tendency would appear to have arisen from the judgment of Tipping J in Southern District Review Committee v Baird [1993] NZAR 280. That case concerned a retrospective loss of benefit. Tipping J concluded that there had been no error on the part of a departmental officer because the beneficiary only lost his entitlement to be paid once he had been absent from New Zealand for longer than thirty weeks. In those circumstances, the only error had been committed by the debtor and therefore was not a qualifying error for the purpose of s 86(9A). [32] Both Mr Child and Mr McKenzie agreed that one of the High Court decisions that was seen, in terms of the remarks of the responsible Minister on the second reading, as one which "gave an interpretation that was at odds with the original policy intent" of s 86, was Moody v Chief Executive Department of Work and Income [2001] NZAR 608. [33] In Moody the Court considered (at [28]) that the department's entitlement to recover overpayments was analogous to the general right at common law to recover money paid under mistake of fact, and that s 86(9A) thus had the effect of permitting the provisional writing-off of a debt which would, in any event, not be able to be recovered due to s 94B of the Judicature Act 1908 and common law principles. [34] The Court further stated that there was uncertainty regarding the meaning of the word "error" in s 86(9A). It noted the tendency to look for a "culpable error". In discussing whether the word "error" should be construed as meaning "culpable error", the Court opined that:[33] [s]ection 86 as a whole will usually only apply to cases where the Department has acted in error, at least in the sense of having made payments to which the recipient was not entitled. So it might be sensibly thought that the word "error" in s 86(9A) simply refers to the underlying error in making the payments in issue. If so, the subsection could apply in any case where the recipient of the payment had not "intentionally contributed" to the departmental error as to his or her entitlement to the overpayment.[35] The Court then concluded that s 86(9A) applied irrespective of whether fault or negligence on the part of the department had been shown, and that the section was to be construed in a way which meant that it operated consistently with s 94B of the Judicature Act and the common law. For these reasons, the Court found that the department acted in error when it made a payment to the appellant on the mistaken assumption that she was entitled to the Domestic Purposes Benefit. By reference to those elements of the Court's decision in Moody, as Duffy J observed in Osborne v Chief Executive of the Ministry of Social Development HC Auckland CIV-207-485- 2579, 31 August 2009:[59] The strengthening of the language in s 86(9A) and s 86(9B), coupled with the express overriding of s 94B of the Judicature Act, and the rules of law relating to the recovery of money paid under mistake, in s 86(1B), can be understood as Parliament's response to aspects of the decision in Moody, which acknowledged that the general law on recovering money paid under a mistake was applicable to decisions under s 86. The response Parliament adopted suggests that Parliament was troubled by those aspects of Moody [36] In my judgment those amendments to s 86 – the exclusion of s 94B of the Judicature Act and any rule of law relating to payments by mistake, and the provision of a narrower or more specific definition of the term "error" – broadened the right of recovery by the Chief Executive relative to the position as indicated inMoody. Counterbalancing those changes, the Chief Executive's discretion not to recover overpayments became a bar on the recovery of overpayments. In other words, while the Chief Executive previously had a choice whether or not to authorise the writing-off of a debt within subs (9A), he now "may not recover" any debt falling within that provision. [37] What then is "an error" to which s 86(9A) will apply? [38] The combined effect of the three definitions of the term "error" in para (a) of s 86(9B), together with the exclusion found in para (b) of that section, mean that theact of making a payment to which a recipient is not entitled (itself an error in a general sense) is not an error for the purposes of the section unless it is caused wholly or partly by an "erroneous act or omission" of an officer of the department. [39] Further, the provision of incorrect information by an officer of the department can be a relevant error (where it has the necessary causative effect) as can, by reference to clauses (ii) and (iii) of that paragraph, any other "erroneous act or omission". Therefore, and for the mistake of an overpayment to be a qualifying error in terms of the definition contained in subsection (9B), the overall position, in my view, is that it is necessary to identify some erroneous act or omission by an officer of the department that, wholly or partly, caused the payment to be made. [40] Some guidance on what would constitute a situation where the department has made an error "beyond merely making an overpayment" is provided in the Explanatory Note to the Social Security (Working Towards Employment) Amendment Bill 2001 (178-1). By reference to Moody, the Note raises the concern that the section as previously drafted was unclear about whether failing to investigate properly a claim for a benefit was an error. It states that such a failure would amount to an error under the amended subsection (9A). [41] The issue here is whether the Authority erred in law in finding that: the [Chief Executive's] conclusion as at 25 November 2005 as to the nature of the relationship between Mr Saunders and Mrs Thompson was an error for the purpose of s 86(9A) of the Social Security Act 1964?[42] The appellant argued that the term "error" connotes some act or omission by one of its officers that was wrong or mistaken, and for which the appellant is in some way responsible. It says that the error must be more than just a wrong or a "different" decision. It submits that, in some way, an officer must be culpable for an erroneous act or omission for an error, as defined, to arise. The appellant further argued that here there was no error as, based on the information that was or should reasonably have been available at the time, there was nothing wrong with the conclusion that the respondents were not in a relationship in the nature of marriage.[43] Mr McKenzie, as amicus curiae, first submitted that the Authority had found an error that, by its assessment, did involve culpability on the Chief Executive's part. Therefore, if the Chief Executive's view of the law was correct, the Authority had not erred. Alternatively, Mr McKenzie suggested that the effect of ss 86(9A) and (9B) was not, as the Chief Executive argued, to require "culpability". Rather, those sections – when enacted – did not go that far. Therefore, the correct answer to the first question stated by the Authority was that it did not err in law. [44] I agree with the appellant's submission that an error under subsection (9A) must be more than merely a wrong determination or conclusion as to entitlement, just as "the simple act" of making an overpayment cannot amount to an error. Instead, the section requires some "erroneous act or omission" of an officer of the department that leads to the conclusion that caused the payment to be made. The simple act of making an overpayment will, it seems to me, always reflect some official decision to that effect. Therefore a simple decision, just as a simple act, will not necessarily constitute an error. Given that the Chief Executive has a statutory duty of inquiry when a benefit is granted (s 12 of the Social Security Act) it seems unlikely that the legislature – given the explicit definition of "error" now provided – intended that s 96(9A) could preclude recovery of overpayments where a subsequent investigation showed that an earlier decision to grant or renew a benefit had, as a matter of fact, resulted in benefit overpayments. It follows that what the Authority was required to determine was whether an error, as statutorily defined, was made as part of the first investigation that wholly or partly caused the Chief Executive to conclude that the respondents were not living in a relationship in the nature of marriage. [45] In my judgment, the Authority erred in law because it did not look for or identify such an error. Rather, it concluded that by reason of the Authority's finding as at 30 May 2006 that Mr Saunders and Mrs Thompson had since October 2003 lived in a relationship in the nature of marriage, the Ministry was necessarily in error when – after the first investigation – it reached the contrary conclusion as at 25 November 2005. That the earlier decision was shown to be wrong at the time it was made because of the later decision does not, in my judgment, mean that it was necessarily an error as defined. To determine that it was such an error, a relevanterroneous act or omission had to be identified. This, in my view, the Authority failed to do. [46] As noted, in his submissions the Chief Executive argued that the statutorily defined concept of error involves the concept of culpability. The concept of culpability is not referred to in the statutory definition. The legislature chose to adopt the words "erroneous act or omission" and I prefer to base my finding on those words. I consider it sufficient, for these purposes, to leave open the possibility that as cases are argued before the Authority, and subsequently considered by the Courts, the Courts may in the future come to the view that the concept of an erroneous act or omission does involve some concept of culpability. Given the manner in which this case was argued before me, and particularly as the respondents played no active part, I do not consider it is necessary for me to go that far in reaching my decision on this appeal. [47] Mr McKenzie alternatively submitted that the Authority treated the Chief Executive's conclusion as being made in error, in the defined sense, because its investigation was "flawed". He says that the Authority made findings to the effect that the Chief Executive ought to have done more when carrying out the first investigation under s 12. [48] The Authority, in considering whether or not the respondents had intentionally contributed to the error, did comment on the first investigation being "confined largely to quite detailed interviews with the appellants in which they answered the questions put to them" (at [37]). That is not, in my view, a sufficiently clear finding of an error, as now statutorily defined, to accept Mr McKenzie's submission. [49] I therefore answer the first question of law in the affirmative.Authority erred in law on question of intentional contribution[50] On the basis of its decision that a relevant error had been made, the Authority had then to consider whether the respondents had intentionally contributed to that error. If they had, s 86(9A) would not preclude recovery actions.[51] Although the Authority made it clear that it had "some reservations about some of the answers" provided during the first investigation, it considered that there was no cogent evidence "of an intention to contribute to the Ministry deciding in error that no relationship in the nature of marriage existed" (at [37]). [52] The appellant argues that the Authority's view was not reasonably open to the Authority on the evidence, and that the respondents' failure to provide accurate and candid answers invites an irresistible inference that there was an intention to contribute. [53] It is clear that the interviews that were conducted as part of the investigation include some statements by both respondents which raise a real possibility of a finding of "intentional contribution". The issue, however, is whether the Authority's finding that the respondents did not intentionally contribute to the error was wrong in law. The concept of error of law extends to a finding that is so insupportable on the evidence as to be untenable: Bryson v Three Foot Six Ltd [2005] 3 NZLR 721. It must be emphasised however that this:[26] will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs "in which there is no evidence to support the determination" or "one in which the evidence is inconsistent with and contradictory of the determination" or "one in which the true and only reasonable conclusion contradicts the determination". (footnotes omitted)[54] The appellant focused on four of the answers given by the respondents in the interviews, claiming that these were either inaccurate or inconsistent with the circumstances as they were later found to have existed at the time. Given those inaccuracies and inconsistencies and the very clear context of the Chief Executive's inquiries at the time, the Chief Executive in effect argued that the necessary inference is that the respondents did intend to contribute to the Chief Executive's error. [55] Considering the evidence as a whole, and having regard to the requirement that the Authority's finding be inconsistent with and contradictory of the evidence, I am not able to conclude that the Authority made an error of law in finding that the respondents did not intentionally contribute to the Chief Executive's error. While Iam of the opinion that the evidence might, viewed differently, suggest that there was such an intention, that does not mean that the Authority was not entitled – as a matter of law – to take a different view of this matter. The respondents offered explanations as to why the interview answers were seemingly inconsistent with documentary records. Moreover, the Authority had the benefit of hearing Mrs Thompson give evidence, and was therefore in a far better position than me to assess this issue of intentional contribution. [56] I therefore answer the second question of law in the negative.Recovery inequitable?[57] I turn now to the third question. [58] Before me, Mr Child for the Chief Executive acknowledged that if I answered the second question in the negative, it would follow that the third question should be answered similarly. That is, if the respondents did not "intentionally contribute", then – even if there had been an error – to permit recovery would in these circumstances be inequitable. I agree, and so answer the third question in the negative also.Relief[59] On the basis of my answer to the first question, the traditional response would be to remit this matter to the Authority for consideration by the Authority of the question of "error" in terms of this judgment. [60] The issue I now raise is whether there is any purpose in so doing. [61] On the one hand if the Authority, following such reconsideration, concluded that no error had occurred, then s 86(9A) would not come into play. The Chief Executive would have his "residual" discretion under s 86(1). My understanding is that, in terms of fiscal considerations, the Chief Executive does not consider it practicable to pursue recovery now, either by way of proceedings or deductions. Ifthat understanding is correct, then there is no utility in remitting the matter to the Authority. [62] On the other hand, if the Authority were to conclude that an error had occurred, recovery would be precluded in any event under s 86(9A) on the basis of the Authority's findings – which I have upheld – as to "intentional contribution" and "inequitable". [63] I do not therefore propose at this stage to order that the matter be remitted to the Authority for further consideration. I invite a memorandum from the Chief Executive advising whether or not he considers such relief to be of benefit in the circumstances. Given the time that has passed, the age as I understand it now of the respondents, the fact that the respondents did not participate in any way in this hearing and, as acknowledged by the Chief Executive, the relatively small amounts of money involved, I would hope that the legal finding in this judgment in favour of the Chief Executive is sufficient for his purposes."Clifford J"Solicitors: Crown Law Office, Wellington for the appellant. P McKenzie QC, Wellington as amicus curiae.