MALSTER v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 1368

MALSTER v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 1368 [19 June 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2013-485-008498[2014] NZHC 1368IN THE MATTER OF an appeal by way of case stated from thedetermination of the Social SecurityAppeal Authority at Wellington unders 12Q of the Social Security Act 1964BETWEEN DAVID MALSTERAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 15 April 2014(Heard at Auckland)Appearances: Appellant in personN Gray for the RespondentJudgment: 19 June 2014JUDGMENT OF GILBERT JThis judgment is delivered by me on 19 June 2014 at 11ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarIntroduction[1] This is a case stated appeal brought pursuant to s 12Q of the Social Security Act 1964 from a decision of the Social Security Appeal Authority.1[2] The appellant, Mr Malster, is aged 73. He has been in receipt of an age-related pension from the United Kingdom since he turned 70. His wife, who is now aged 65, also receives an age-related pension from the United Kingdom. These pensions have been taken into account in assessing their entitlements to New Zealand Superannuation. Mr Malster's principal contention is that the United Kingdom pensions are not state-funded and therefore should be treated in the same way as a private superannuation scheme and not deducted from their New Zealand Superannuation.Background[3] Mr and Mrs Malster settled in New Zealand in 1971. Mr Malster became eligible for New Zealand Superannuation in September 2005. In 2011, Mrs Malster, who was then aged 62, was advised by the Department for Work and Pensions in England that if she made a voluntary payment amounting to approximately $900, she would be entitled to a State Pension based on her National Insurance contributions in the United Kingdom. Mrs Malster made the voluntary payment and has been in receipt of a State Pension from the United Kingdom since September 2011. Mr Malster advised the Ministry of Social Development of his wife's receipt of this pension.[4] The Ministry wrote to Mr Malster in October 2011 advising him that hiswife's pension would be deducted from his New Zealand Superannuation payments in accordance with s 70 of the Social Security Act 1964. This section relevantly provides:1 Re Malster [2013] NZSSAA 43.70 Rate of benefits if overseas pension payable(1) For the purposes of this Act, if –(a) any person qualified to receive a benefit under this Act or Part 6 of the War Pensions Act 1954 or under the New Zealand Superannuation and Retirement Income Act 2001 is entitled toreceive or receives, in respect of that person or of that person's spouse or partner or of that person's dependants, or if that person'sspouse or partner or any of that person's dependants is entitled toreceive or receives, a benefit, pension, or periodical allowance granted elsewhere than in New Zealand; and(b) the benefit, pension, or periodical allowance, or any part of it, is in the nature of a payment which, in the opinion of the chief executive, forms part of a programme providing benefits, pensions or periodical allowances for any of the contingencies for which benefits, pensions or allowances may be paid under this Act or under the New Zealand Superannuation and Retirement Income Act 2001 or under the War Pensions Act 1954 which is administered by or on behalf of the Government of the country from which the benefit, pension, or periodical allowance is received –the rate of the benefit or benefits that would otherwise be payable under this Act or Part 6 of the War Pensions Act 1954 or under the New Zealand Superannuation and Retirement Income Act 2001 shall, subject to subsection (3), be reduced by the amount of such overseas benefit, pension, or periodical allowance, or part thereof, as the case may be, being an amount determined by the chief executive in accordance with regulations made under this Act:[][5] Mr Malster applied for review of this decision on the grounds that his wife'spension was not covered by s 70 of the Act; the use of information relating to this pension was in breach of the Privacy Act 1993; and his wife was only entitled to receive the pension as a result of having made voluntary contributions. A Benefits Review Committee dismissed Mr Malster's application for review in April 2012.[6] Mr Malster appealed against the decision of the Benefits Review Committee to the Social Security Appeal Authority on the grounds that the pensions he and his wife receive from the United Kingdom are similar to Government occupational pensions and are outside the scope of s 70; the Ministry's use of informationregarding his wife's pension was a breach of privacy; and the deductions made from his New Zealand Superannuation entitlement breached the Magna Carta. TheAuthority dismissed Mr Malster's appeal in April 2013. The present appeal by wayof case stated is from this decision.The Authority's decision[7] After briefly stating the facts, the Authority discussed the essential elements of s 70 of the Act as follows:[6] Section 70 of the Social Security Act 1964 provides for benefits received from overseas to be deducted from entitlement to New Zealand benefits in certain circumstances. The essential elements of s 70 of the Act are that where:A benefit, pension or periodic allowance which forms part of a programme providing benefits, pensions or periodic allowances is paid to the recipient of a benefit in New Zealand or to that person's spouse,partner or dependents; andThe programme provides for any of the contingencies for which benefits, pensions or allowances may be paid under the Social Security Act 1964, or the New Zealand Superannuation and Retirement Income Act 2001 or the War Pensions Act 1954; andThe programme is administered by or on behalf of the Government of the country from which the benefit, pension or periodic allowance is received;that payment must be deducted from the amount of the benefit payable under the Social Security Act 1964 or the Social Welfare (Transitional Provisions) Act 1990 or the New Zealand Superannuation and Retirement Income Act 2001.[7] The provisions of s 70(1) of the Social Security Act 1964 are very wide. It is not necessary for example for the pension or benefit paid by the United Kingdom Government to be identical to one of the benefits paid in New Zealand. The comparison is not between individual types of pension but a comparison between schemes of social assistance.[8] The Authority then considered whether the pensions received by Mr and Mrs Malster came within the scope of s 70:[8] The current legislation governing the United Kingdom retirement pension the appellant receives is contained in the Social Security Contribution and Benefits Act 1992. This Act also provides for the payment of retirement pensions, Unemployment Benefit, Sickness Benefit, Invalid's Benefit, Maternity Benefit, Widow and Widower's Benefits under acontributory scheme. There are also benefits arising from a non contributory scheme including Severe Disablement Allowance, Invalid Care Allowance, Disability Living Allowance, Guardian Allowance and benefits for the aged.[9] The benefits that flow from both the contributory and non- contributory schemes are part of the United Kingdom Government programme providing benefits, pensions or periodic allowances for the contingencies of illness, unemployment and old age. This programme is comparable to the programme for social security in New Zealand contained in the Social Security Act 1964, the New Zealand Superannuation and Retirement Income Act 2001 and the War Pensions Act 1954 which provides for the contingencies of old age (New Zealand Superannuation) anddisability (Sickness and Invalid's Benefit) and unemployment.[10] We understand that in this case there is no dispute that the programme which is laid out in the Social Security Contribution and Benefits Act 1992 (UK) is a programme administered by or on behalf of the Government of the United Kingdom. On the face of it therefore theappellant's New Zealand Superannuation must be reduced by the amount ofhis pension entitlement from the United Kingdom and by that of his wife'spursuant to the provisions of s 70 of the Social Security Act 1964.[9] The Authority next considered whether the pensions received by Mr or Mrs Malster were Government occupational pensions and therefore exempt from the deduction regime under s 70. An "overseas pension" for the purposesof s 70 does not include a "Government occupational pension" which is defined as follows:2Government occupational pension -(a) means a benefit, pension, or periodical allowance paid by or on behalf of the Government of any country to a person by reason of –(i) a period of employment, direct or indirect, by thatGovernment of that person or that person's deceased spouseor partner or that person's deceased parent; or(ii) a period of service to that Government (including, without limitation, service in the armed forces, service in the Police, and service as a judicial officer or other person acting judicially) by that person or that person's deceased spouse or partner or that person's deceased parent; but(b) does not include any part of that benefit, pension, or periodical allowance that is paid by the Government of that country by reason of anything other than that period of employment or service; and(c) does not include any part of that benefit, pension, or periodical allowance to which the Government of that country contributes by reason of anything other than that period of employment or service; but2 See definition of "overseas pension" in s 3(1) of the Social Security Act 1964.(d) does not include a benefit, pension, or periodical allowance of the kind set out in paragraph (a) if the person would have been entitled to receive a similar benefit, pension, or periodical allowance paid by, or on behalf of, the Government of that country under a scheme or other arrangement in respect of persons who were not employees or in the service of that Government.[10] The Authority was not aware of any basis on which the pensions paid to Mr and Mrs Malster could be considered to be Government occupational pensions:[14] The appellant has not suggested that either he or his wife were either employed by the Government of the United Kingdom or in the service of the Government of the United Kingdom. In fact he refers to his employers andhis wife's employers as being private employers. We are not satisfied that there is any basis on which the pension paid to the appellant can be considered to be a Government Occupational pension and therefore exempt from the deduction regime contained in s 70.[11] The Authority then addressed Mr Malster's submission that the pensions heand his wife received should be treated in the same way as a private superannuation scheme because the payments are funded by contributions made by them and their employers, not by the Government. It addressed this issue in the following paragraphs of its decision:3[15] Private superannuation schemes are not caught by the deduction regime in s 70. The appellant suggests that the pensions he and his wife are entitled to were awarded as a result of their contributions to the National Insurance fund and as a result of the contributions by themselves and their private employers. He submits that because they contributed to the pension funds the pensions they receive are more akin to a private scheme or even the New Zealand Government Superannuation Fund.[16] The contributions the appellant and his wife made to the National Insurance fund were made compulsorily as a result of legislation enacted by the Government of the United Kingdom. Most employees in the United Kingdom at the time were required to make contributions to the scheme. A genuine private scheme would not generally be the subject of legislation and would not be compulsory.[17] The provisions of s 70 of the Social Security Act 1964 do not require any distinction to be made between contributory and non-contributory schemes. The benefit, pension or periodic allowance must simply form part of a programme providing for the contingencies for which benefits are paid in New Zealand. In Tetley Jones v The Chief Executive of Work and Income New Zealand the High Court found:3 Re Malster, above n 1, (footnotes omitted).Section 70 hinges deductibility upon the nature of the payment received by way of an overseas pension, rather than how the particular pension is funded.[18] We do not consider that any significance can be attached to the fact that while the New Zealand Superannuation is funded by taxation theappellant's pension is derived from compulsory contributions. In Hogan v The Chief Executive of the Department of Work and Income France J found:It is not necessary in terms of s 70 to conduct an enquiry as to how the relevant Government collects the funds, in particular whether they are from taxation or from some othertype of compulsory acquisition from a person's incomewhich the Government chooses not to call taxation".[19] Likewise in R v Carson v the Secretary of State for Work and Pensions a case concerning the same scheme from which the appellant receives his pension Lord Hoffman found at paragraph 24:It is, I suppose the words 'Insurance' and 'contributions'which suggest an analogy with a private pension scheme. But from the point of view of the citizens who contribute, National Insurance contributions are little different from general taxation which disappears into the communal pot of a consolidated fund. The difference is only a matter of public accounting.[20] The fact that the appellant and his wife made identifiable contributions to the United Kingdom scheme does not put them in the same category as a private insurance scheme or meet the criteria of a Government occupational pension.[12] Finally, the Authority rejected Mr Malster's submission that the deductions made from his New Zealand Superannuation under s 70 of the Act are in breach of the Magna Carta.Case stated[13] The Authority has stated three questions of law for the opinion of the Court:(a) Did the Authority err in its interpretation and application of s 70 of the Act?(b) Was there any evidence which entitled the Authority to conclude that the pensions received from the United Kingdom by Mr and Mrs Malster were not exempt from s 70 of the Act?(c) Does the Magna Carta prevent the operation of s 69H(1)(b) and 70 of the Act?I now address each of these questions.Did the Authority err in its interpretation and application of s 70 of the Act?[14] The essential point raised by Mr Malster is that the pensions he and his wife receive from the United Kingdom are not Government funded and should therefore not be deducted from their New Zealand Superannuation under s 70 of the Act. This argument, which is contrary to the clear wording of the section, has been repeatedly rejected by this Court.[15] The rationale for the deduction under s 70 of the Act was explained by the Chief Justice in Roe v The Social Security Commission:4The reason why the receipt of a private fund does not result in a deduction is that the Act, s 70(1), applies only to Government administered funds. It is only Government administered funds – such as the U.S. retirement benefit is– which are required to be deducted. The policy behind that is no doubt that Governments of countries do not consider it their obligation to pay retirement benefits to a person when another Government is also doing so. If a person, however, wishes to provide for additional retirement benefits by paying into a private fund for such purpose, he is entitled to follow that course.[16] The scope of s 70 is very broad and is limited only by the nature of the contingency for which the benefit, pension or allowance is paid and the requirement that the programme must be administered by or on behalf of the Government. This was emphasised by Ellen France J in Hogan v Chief Executive of the Department of Work and Income New Zealand:5The appellant takes issue with Roe. However, s 70(1) is very broad. The limiting factors are the nature of the contingency and the requirement that the programme be administered by the Government.[17] Section 70 contains no reference to funding and does not differentiate between pensions, benefits or allowances that are funded by the state and those that4 Roe v The Social Security Commission HC Wellington M270-86, 10 April 1987.5 Hogan v Chief Executive of the Department of Work and Income New Zealand HC Wellington AP49/02, 26 August 2002 at [25].are not. It does not matter how the money to fund the overseas pension is gathered, so long as the relevant pension, benefit or allowance is administered by the Government. Ellen France J dealt with this issue in Hogan:6Perhaps the strongest argument for the appellant that Roe is wrong as to the effect of the source of funds is in his submission as to the purpose of s 70 . Namely, he says that the intention of s 70 is to prevent an individual from collecting twice from Government funds, whereas under the CPP [theCanada Pension Plan] the appellant is simply recouping his/his employer's own contribution. In the end, however, I accept the respondent's submissionthat it is not necessary in terms of s 70 to conduct an inquiry as to how the relevant Government collects the funds and particularly whether they are from taxation or from another type of compulsory acquisition from theperson's income which the Government chooses not to call taxation. Trueprivate savings schemes will not be caught by s 70 as a programme administered by the Government will not pay them.[18] Roe and Hogan have been applied by this Court in numerous subsequent cases.7 However, Mr Malster relies on the judgment of Doogue J in Chief Executive of the Ministry of Social Development v Rai in support of his contention that the pensions he and his wife receive should not be deducted under s 70 because they are not Government funded.8[19] Rai concerned the interpretation of the exclusion in (d) from the definition of Government occupational pension. Although I have quoted this section above, it is helpful to set out the relevant parts of the definition again:Government occupational pension –(a) means a benefit, pension, or periodical allowance paid or on behalf of the Government of any country to a person by reason of –(i) a period of employment, direct or indirect, by thatGovernment of that person or that person's deceased spouse or partner or that person's deceased parent; or6 At [26].7 See for example Ruifrok v Attorney-General HC Wellington Jurie and Gendall JJ AP199/97, 27 October 1999; Tetley-Jones v Chief Executive of the Department of Work and Income New Zealand HC Auckland CIV-2004-485-1005, 3 December 2004; Dunn v Chief Executive of the Ministry of Social Development [2008] NZAR 267 (HC); Boljevic v Chief Executive of the Ministry of Social Development HC Wellington CIV-2010-485-206, 10 November 2011; Horn v Chief Executive of the Ministry of Social Development HC Wellington CIV-2010-485-1589, 15 November 2010.8 Chief Executive of the Ministry of Social Development v Rai HC Auckland CIV-2003-485-2615, 2 September 2004.(ii) a period of service to that Government (including, without limitation, service in the armed forces, service in the Police, and service as a judicial officer or other person actingjudicially) by that person or that person's deceased spouse or partner or that person's deceased parent; but[](d) does not include a benefit, pension, or periodical allowance of the kind set out in paragraph (a) if the person would have been entitled to receive a similar benefit, pension, or periodical allowance paid by, or on behalf of, the Government of that country under a scheme or other arrangement in respect of persons who were not employees or in the service of that Government.[20] The facts in Rai were far removed from the present case. Mr Rai had received for many years his New Zealand Superannuation in full as well as a Fiji Government Service Pension paid in respect of his service as a former employee of the Fiji Government. The Fiji pension was not deducted from his New Zealand Superannuation because it was considered to be a Government occupation pension and therefore outside the scope of s 70.[21] The exclusion from the definition of Government occupational pension in (d) was introduced by the Social Welfare (Transitional Provisions) Amendment Act 2002 which came into force on 22 April 2002. Following that amendment, the Chief Executive deducted the Fiji Government pension from Mr Rai's New ZealandSuperannuation. This was because, in 1966, while Mr Rai was working in the Fiji civil service, he could have elected to move from the Fiji Government Service Pension scheme to the Fiji National Provident Fund, a contributory superannuation scheme for employed persons in Fiji. On this basis, the Chief Executive argued thatMr Rai came within (d) in that he "would have been entitled to receive a similar pension paid by, or on behalf of, the Government [of Fiji] under a scheme or arrangement in respect of persons who were not employees or in the service of that Government."[22] Doogue J upheld the decision of the Social Security Appeal Authority which rejected the Chief Executive's contention that Mr Rai's Fiji pension was covered by(d) and therefore not a Government occupational pension excluded from s 70. His Honour noted that for (d) to apply the relevant pension to which Mr Rai would havebeen entitled, namely the Fiji National Provident Fund, had to be "paid by, or on behalf of, the Government" of Fiji. As this fund was not Government funded, his Honour considered that (d) had no application:[45] For (d) to apply the scheme must be Government funded as if it isnot the pension cannot be paid by or on behalf of the Government.[46] The only scheme to which the appellant points is the FNPF. But that is not a Government funded scheme. It is a contributory scheme. The funds for a non-Government employee's pension come from the contributions of the employee and the employer and not from the Government. The Government does not contribute to the FNPF except as an employer or lender. In no sense can payments from the FNPF be said to be by or on behalf of the Government. The payments from the FNPF are exactly that.They are not payments by the Government. If they are paid on anyone'sbehalf, other than the FNPF, it is on behalf of the contributing employers and employees, not the Government as such.[47] The appellant seeks to rely on the role of the Government in relation to the FNPF and its role as a principal employer contributor. None of those matters can convert the FNPF into a Government funded scheme of the kind envisaged by (d), where payments are made by or on behalf of a Government and not by and on behalf of a contributory superannuation scheme.[23] Rai does not assist Mr Malster. It was concerned solely with the interpretation of the words "paid by, or on behalf of, the Government" in (d) of thedefinition of Government occupational pension. These words do not appear in s 70and have no relevance to Mr Malster's position. He does not suggest that thepensions he and his wife receive from the United Kingdom are Government occupational pensions.[24] It is worth noting that after the judgment in Rai was delivered, the Chief Executive applied for it to be recalled because Doogue J had not been referred to theCourt's decisions in Roe and Hogan. The Chief Executive was concerned that the judgment in Rai could be interpreted as a finding that contributory superannuation schemes are not subject to deduction under s 70. His Honour declined to recall his judgment but made it clear that the issue he had dealt with was quite distinct from the issues arising in Roe and Hogan and that he accepted the reasoning in those decisions:99 Chief Executive of the Ministry of Social Development v Rai HC Auckland CIV-2003-485-2615, 2 November 2004.[4] The appellant seeks recall of the judgment not for any reason relating to the outcome of the judgment but because of statements in paragraphs 48, 49 and 53 of the judgment that in the submission of the appellant could be interpreted as a finding that contributory superannuation schemes cannot be caught by the s 70 direct reduction regime under the Social Security Act 1964. Recall is sought because I was not referred to two decisions relevant to that issue namely Roe v The Social Security Commission and Hogan v The Chief Executive of the Department of Work and Income New Zealand.[5] The cases cited do not impact in any way upon the substance of my decision. Thus this is not a case where there is any basis for me to recall thejudgment. However the appellant's point can be met by making it clear thatnothing in my judgment was intended to be read in a manner in conflict with the decisions just cited. The issue before me was quite different from the issue in those cases which is not addressed by me. I accept the reasoning in those decisions. The paragraphs of concern to the appellant should be read in the context of the issues that I was determining and not as in conflict in any way with the decisions of Roe and Harding [sic] on the different issue being considered in those judgments.[25] Mr and Mrs Malster received their overseas retirement pensions under the Social Security Contributions and Benefits Act 1992 (UK). As noted, this Act provides for a Social Security scheme that includes contributory and non- contributory benefits. The contributory benefits are paid out of the National Insurance Fund. Contributions to the fund are made by employers, employees and self-employed persons.[26] In Dunn v Chief Executive of the Ministry of Social Development, Cooper J found that pensions falling into the same category as those received by Mr and Mrs Malster were caught by s 70.10 His Honour rejected an argument that these pensions did not come within s 70(1)(a) because they are not state-funded and therefore are not "granted":11Whether a superannuation scheme is funded out of taxation, such as is the case with New Zealand Superannuation, or whether the payments are made out of a fund into which contributions by an employer and an employee havebeen made, the word "grant" is apt to describe the payment of entitlementsunder either scheme.10 Dunn v Chief Executive of the Ministry of Social Development [2008] NZAR 267 (HC).11 At [25].[27] The Court of Appeal declined Mr Dunn's application for leave to appealagainst this decision finding that the word "granted" in s 70(1) simply means "made available".12[28] On the basis of these authorities, there can be no doubt that the pensions received by Mr and Mrs Malster come within s 70(1)(a) unless they are otherwise excluded.[29] The Authority correctly observed that there are two criteria to be satisfied under s 70(1)(b). The first of these criteria is clearly satisfied in this case because the pensions received by Mr and Mrs Malster are available for the same contingency as New Zealand Superannuation, namely support in old age. The second criterion is also satisfied because the pensions are administered by the Government under the Social Security Contributions and Benefits Act 1992 (UK).[30] I conclude that the Authority correctly interpreted and applied s 70 of the Act. The answer to the first question is "no".Was there any evidence which entitled the Authority to conclude that the pensions received from the United Kingdom by Mr and Mrs Malster were not exempt from s 70 of the Act?[31] Mr Malster's sole argument in support of his appeal is based on his contention that the pensions he and his wife receive from the United Kingdom are contributory schemes that are not state funded and therefore are not caught by s 70. He does not contend that the United Kingdom pensions he and his wife receive fit within any particular exemption.[32] Mr Malster does not suggest that the pensions he and his wife receive are Government occupational pensions. It is plain from the evidence that they do not fall within the proviso in s 70(1) or any of the other exclusions in s 70 and Mr Malster does not contend otherwise. Mr and Mrs Malster did not arrive in New Zealand until October 1971 and accordingly they do not come within Article 15(3) of the Social Welfare (Reciprocity with the United Kingdom) Order 199012 Dunn v Chief Executive of the Ministry of Social Development [2009] NZAR 94 at [10].which provides an exemption for persons who were usually resident in New Zealand on 1 January 1970.[33] The evidence before the Authority was sufficient to support its conclusion that Mr and Mrs Malster's pensions are not exempt from s 70. It made no error oflaw in reaching this conclusion. The answer to question 2 is also "no".Does the Magna Carta prevent the operation of s 69H(1)(b) and 70 of the Act?[34] Chapter 29 of the Magna Carta (25 Edw 1) is part of New Zealand law under s 3(1) of the Imperial Laws Application Act 1988. It provides:29 Imprisonment, etc contrary to law. Administration of justice.No free man shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.[35] Mr Malster submits that the reference to "freehold" in Chapter 29 of the Magna Carta should be taken to mean "privately owned". He argues that the effectof deducting his pension from his entitlement to New Zealand Superannuation is to"disseise" him of his "freehold" because his United Kingdom pension is paid into his personal bank account and is privately owned by him.[36] I do not accept Mr Malster's submissions. The Magna Carta has no relevancein the present case. Mr Malster's pension has not been taken from him; it is merely taken into account in assessing his entitlement to New Zealand Superannuation. In any event, Chapter 29 of the Magna Carta does not limit the sovereignty of Parliament.13 The Magna Carta did not restrict Parliament's power to enact s 70. Section 69H(1)(b) of the Act, which requires benefit applicants to provide various information to the Chief Executive, is similarly not affected by, or to be read subject to, the Magna Carta. The answer to question 3 is also "no".13 Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154 (CA).Result[37] The answer to all three questions is "no". The Authority's decision isconfirmed. The appeal is dismissed.[38] The respondent does not seek costs and accordingly I make no order as to costs._____________________M A Gilbert J