COOK v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 850

COOK v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 850 [28 April 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-485-11447[2015] NZHC 850BETWEEN DESMOND COOKAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 21 April 2015Appearances: Appellant in PersonM F Clark for RespondentJudgment: 28 April 2015JUDGMENT OF WHATA JThis judgment was delivered by Justice Whata on28 April 2015 at 4.00 p.m., pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:Crown Law, Wellington[1] Mr Cook's special benefit was cancelled by the Ministry of SocialDevelopment in December 2012. The Benefit Review Committee upheld the cancellation decision. The Social Security Appeal Authority dismissed Mr Cook's appeal, finding that there were no grounds to hold that the Chief Executive'sdiscretion had been wrongly exercised. The Authority noted that Mr Cook had not shown any special or unusual expenditure compared to others in a similar position. The matter is now before me by way of case stated on two questions of law namely:(a) Did the Authority err in law in finding that there were no grounds forconcluding that the Chief Executive's discretion had been wronglyexercised?(b) Do the provisions of the Social Security Act 1964 allow for the Social Security Appeal Authority to sit with two members namely the Deputy Chairperson and one other member?[2] I will address each of these questions.Background[3] The background facts as set out in the case stated.1 They are helpfully succinct:2[4] On 9 April 2012 the Ministry made a decision to include theappellant's repayments in respect of Home Direct and [New ZealandFinance] totalling $50 a week as allowable costs in the assessment of Special Benefit which was paid to him at the rate of $67.68 per week.[5] The appellant was advised by letter on 23 April 2012 that if he continued to meet the repayments for which the Ministry had made an allowance, the two accounts would be fully repaid by dates in December 2012 and that at that time the Special Benefit would be reviewed to take into account the exclusion of those costs.1 Cook v The Chief Executive of the Ministry of Social Development HC Wellington CIV-2014- 485-11447, 14 November 2014.2 These findings largely mirror the findings in the Appeal decision: An appeal against a decision of the Benefits Review Committee [2013] NZSSAA 109.[6] A further reminder letter was sent to the appellant on 23 May 2012.[7] A review took place on 5 November 2012 adjusting the appellant'sSpecial Benefit to $36.50 a week, again taking into account the two repayments.[8] When the date for the expiry of the repayments to the financecompany occurred on 11 December 2012 the appellant's Special Benefit wasreduced by $25 a week to $11.50 a week.[9] On 20 December 2012 the appellant was further advised that his payment to Home Direct was due to expire on 25 December and his Special Benefit would be cancelled altogether.[10] The appellant made representations that he still owed sums to Home Direct and the finance company (NZ Finance). A decision was made by the Ministry to make a lump sum payment of Special Benefit to the appellant to clear the outstanding balances.[11] The repayment of the advances were made and the Ministrycancelled the appellant's Special Benefit from 25 December 2012.[12] Reference was made at the hearing by the appellant to his power costs. The Authority noted that the budget prepared by the Ministry which included power costs at $60 per week did not appear to result in a substantial deficiency of income over expenditure for the appellant. In any event taking the annual power costs rather than the winter costs the weekly figure averaged $36.19 over the period 1 November 2011 to 1 November 2012.[4] The substantive findings of the Authority are also succinctly restated in the case stated:3[13] The Authority found that on repayment of the debts to Home Direct and the finance company his outgoings reduced by $50 per week resulting in a surplus of income over expenditure.[14] Following an assessment pursuant to the formula relating to Special Benefit the Chief Executive still has a discretion as to whether to continue topay the appellant' special Benefit. In exercising that discretion the ChiefExecutive must have regard to a number of matters including the requirements in Clause 1.2 of the Ministerial Directive that Special Benefitshould not normally be granted unless the applicant's deficiency of incomeover his or her expenditure and commitments is reasonably substantial and the matters contained in Clause 3.3 of the direction.[15] Appropriate consideration was given to all of these matters. TheAuthority could find no grounds to hold that the Chief Executive's discretionhad been wrongly exercised. The Authority particularly noted the appellant had not shown any special or unusual necessary expenditure compared to others in a similar situation.3 These finding are also mirrored in the Appeal Decision.[16] The appellant's health is a concern but he receives DisabilityAllowance in addition to his basic benefit.[17] The appellant is unlikely to improve his financial situation by obtaining employment.[18] The appellant could improve his position and avoid further financial difficulties by reviewing his decisions to maintain a motor vehicle and continue to borrow money from the finance company.Jurisdiction[5] Section 12Q states that a party dissatisfied with a decision may appeal to the Court by way of case stated for the opinion of the Court on a question of law only. The appeal is then governed by the High Court Rules dealing with appeals on points of law.4Application for recusal declined[6] At the commencement of the hearing Mr Cook made an application for recusal. He raised three matters:(a) He would prefer Ellis J to hear the appeal as she was aware of his concerns and had identified two errors in the Authorities' reasoning.(b) I was prejudiced against him, having rejected an unrelated appeal, including on the basis that Mr Cook had improperly referred to a District Court Judge as senile.(c) I am a Government man.[7] I rejected the application for the following reasons:(a) A preference for a particular Judge is not a proper basis for recusal.(b) I do not accept that my previous decision declining an unrelated appeal would raise concerns about fairness to Mr Cook in the mind of4 Social Security Act 1964 s 12Q(10); High Court Rules, part 21.a fair-minded lay observer.5 The decision has no bearing on MrCook's entitlements under the Social Security Act6 and my commentsconcerning Mr Cook's submissions relate only to the previous appealand in any event were not determinative of the matters raised in that appeal.(c) Mr Cook's claim that I am a Government man is baseless.Mr Cook's primary contentions[8] Before turning to the two questions of law in the case stated, it is necessary to set out the matters raised by Mr Cook in argument, namely:(a) He only has $75 dollars per week to buy the correct food to meet his dietary requirements, pay for prescriptions and to meet his other personal necessities.(b) A letter from his doctor dated 15 Mar 2012 sent to his case manager records that he has had multiple heart attacks, requires a diet of low fat meats, fruits, fresh vegetables, low fat yogurts, milk etc and requires the amount of power he is using.(c) A letter from his doctor to Housing New Zealand dated 12 August 2013 requesting a 2 bed room house so that a family member can live with him to help him reduce his stress and health problems.(d) Two letters from Asthma Auckland dated 19 August 2014 and 24 February 2015 record that Mr Cook has ischaemic heart disease, cardiovascular disease and has had angioplasty for a myocardial infarction.5 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3], [89] and [127].6 I note for completeness that the background documents refer to Mr Cook's dealing with HousingNZ. The documents also refer to the cost for lawn mowing at his residence, an issue in the previous proceeding: Cook v Housing New Zealand Corporation [2014] NZHC 683. But the costof the lawn mowing no longer forms part of the Mr Cook's claim to a special benefit.(e) The Ministry has applied its policy too rigidly when it has a wide discretion to make a grant of a special benefit.(f) The Ministry paid off Mr Cook's debts in a lump sum in order to beable to terminate his special benefit and thereby force him into the more restrictive temporary additional support regime.(g) His application for temporary additional support was declined.The statutory frame[9] The special benefit regime was discontinued save in respect of existing special benefits grand-parented by the Social Security (Working for Families) Amendment Act 2004. More particularly, s 23 of that Act provided that a special benefit continued to be payable until the earlier of:23 Savings in respect of existing special benefits(1) A special benefit continues to be payable to a person receiving or who had applied for a special benefit immediately before this section comes into force as if the former section 61G continued in force, until the earlier of—(a) the date on which the chief executive determines, under section 81 or otherwise, that the person is—(i) no longer qualified to receive the special benefit under the former section 61G; and(ii) no longer entitled to have fixed in respect of him or her, under the former section 61G, a special entitlement to a special benefit; or(b) if the special benefit was granted under the former section 61G for a specific period, the end of that period.[10] The power to grant and/or review7 a special benefit is subject to s 5 of the Social Security Act 1964 which makes the exercise of powers and functions by the Chief Executive subject to directions given by the Minister. As at 2012, the relevant direction included the following provisions:87 Social Security Act, s 81.8 Ministerial Direction, Special Benefit, unofficial consolidated version as at 20 August 2012 (as in force on 20 December 2012).Clause 1. General principles1.1 That the intention of a special benefit under the Act is to alleviate financial hardship and that a special benefit should not to be granted unless without the grant, the applicant or a person dependent upon the applicant would suffer financial hardship.1.2 That a special benefit should not normally be granted unless the applicant's Deficiency of Income over his or her expenditure and commitments is reasonably substantial, and that Deficiency is likely to continue for a period that justifies special benefit being granted.1.3 That a special benefit should be considered only in respect of costs of the applicant that are essential and not reasonably avoidable.1.4 That in considering any application for special benefit, consideration should be given to-(a) The applicant's ability to meet the Deficiency from the applicant's own resources; and(b) The assistance that is or might be available to the applicant from other sources to meet the applicant's Deficiency,In particular, when considering-(c) An application for a special benefit by a full-time student or the student's dependent spouse or partner , you should take into account the availability of financial support during the academic year under the student allowance or student loan schemes; or(d) An application for special benefit for the costs of any essential health services or disability services (as those terms are defined in the New Zealand Public Health and Disability Act 2000), you should take into account the assistance available under that Act,-and special benefit should not normally be considered for expenses normally covered by the assistance available under those schemes or that Act unless the applicant has extraordinary expenses and has exhausted his or her entitlements under those schemes or that Act.Clause 3. Assessment procedure3.1 Subject to clauses 3.3 and 3.4, you should regard as justified the fixing of a special benefit at a rate that is the lesser of a or b if-(a) The applicant has cash assets of not more than-(i) For a single person, the amount in clause 1 of Schedule 31 of the Act; or(ii) For a person who is married or in a civil union or in a de facto relationship or a sole parent, the amount in clause 2 of that Schedule; and(b) The applicant's disposable income is less than the applicant's standard costsDefinitions for the purposes of clause 3.1In this clause-a is the applicant's standard costs less the applicant's disposable income;b is-(a) for an applicant with 1 or more dependent children, 25% of the applicant's allowable costs; or(b) in any other case, 30% of the applicant's allowable costs.3.3 Upon completion of the appropriate calculation set out in clauses 3.1 or 3.2, you must consider whether there is justification for increasing or decreasing the rate of special benefit paid to the applicant, or to fix or decline to fix an entitlement to special benefit, having regard to the principles set out in clause 1 and to the following matters:(a) Whether the applicant has any special or unusual financial expenditure compared to others in a similar general position to the applicant and the extent of any such expenditure;(b Whether the applicant has any special or unusual reasons for any expenditure item that has caused or contributed to his or her Deficiency;(c) The nature of the financial difficulty, and the likely duration of the Deficiency;(d) The age and health of the applicant and his or her dependants and any special needs arising from that age or health;(e) The ability of the applicant to improve his or her financial situation;(f) The causes of the applicant's financial difficulty;(g) The extent to which the basic necessities of life for the applicant or his or her dependants would be at risk if a grant of special benefit at the rate calculated, or another rate, was not made;(h) Any other matters that in the circumstances of the particular case, you consider to be relevant.3.4 Nothing in clauses 1 and 3 requires you to grant a special benefit, or a special benefit, at any particular rate, if, in your discretion, you determine that in the circumstances of the particular case, such grant ought not to be made.[11] The effect of this benefits regime was described by the Court of Appeal inSmith v Chief Executive of Work and Income New Zealand,9 which I adopt:The direction and the statutory framework[4] There are three tiers of benefit under the Act. The first tier comprises basic benefits such as unemployment and sickness benefits. The second tier comprises benefits designed to deal with specific needs, such as the accommodation supplement and disability allowance. The third tier includes various discretionary benefits such as the special benefit (nowreplaced with "temporary additional assistance").[5] [6] Under s 5 of the Act the relevant Minister may issue written directions to the respondent about how to exercise powers under the Act. The respondent is obliged to comply with such directions. The Minister issued several directions concerning s 61G. The direction at issue in the present case was issued on 10 February 1999.[7] The Minister's 1999 direction opens as follows:In the exercise of your discretion to grant a special benefit under section 61G of the Act, and without derogating from your duty to have regard to the particular financial circumstances and commitments of the applicant, you must have regard to the following matters.[8] The direction then goes on in clause 1 to set out certain generalprinciples. Clause 1.1 states that the intention of a special benefit is "to alleviate financial hardship" and that such a benefit should not be granted unless the applicant would suffer financial hardship without it. Clause 1.2 says that a special benefit should not normally be granted unless theapplicant suffers from a "reasonably substantial" deficiency of income overexpenditure and commitments and the deficiency is likely to continue for a period that justifies the grant of a special benefit. Clause 1.3 provides that aspecial benefit should be considered only in respect of the applicant's costs "that are essential and are not reasonably avoidable". Finally, clause 1.4identifies some factors that the respondent must consider on any application for a special benefit.[9] Clause 2 of the direction contains definitions. Two definitions are relevant here – "allowable costs" and "standard costs".[10] The opening portion of the definition of "allowable costs" is:9 Smith v Chief Executive of Work and Income New Zealand CA181/05, 23 October 2006."Allowable costs", in relation to an application and subject to section68A of the Act, means any regular essential expenses reckoned on a weekly basis arising out of the special circumstances of the applicant and his or her spouse (if any) which cannot readily be avoided orvaried"The definition then goes on in paragraphs (a) to (h) to list certain costs thatare specifically included as "allowable costs". These are the applicant'sactual accommodation costs, hire purchase and similar payments for a washing machine, refrigerator, television or other household furniture where the acquisition of the item was essential, disability related expenses, telephone, motor vehicle, transportation and childcare costs in certain circumstances. There are then some specified exclusions from the definition (eg, electricity line charges).[11] [12] Clause 3 of the direction sets out the assessment procedure. It contemplates a two-stage process. The first stage involves the application of a formula, utilising allowable costs and standard costs, which is designed to identify whether the applicant has a deficiency of expenditure over income. This process produces a preliminary outcome. Following the completion of the first stage of the process, the direction requires the respondent to look at the position overall before making a final decision. In other words, the preliminary outcome is not binding.[12] The Appeal Authority is empowered by ss 12I of the Social Security Act 1964 to hear an appeal against a determination under s 61G. More specifically, s 12I states:12I Functions of Appeal Authority(1) The functions of the Appeal Authority shall be to sit as a judicial authority for the determination of appeals in accordance with section 12J of this Act.(2) In hearing and determining any appeal, the Appeal Authority shall have all the powers, duties, functions, and discretions that the chief executive had in respect of the same matter.[13] Section 12 J refers to appeals against decisions in Part 1P which includes forpresent purposes the decision to review Mr Cook's special benefit. A detailed appealprocedure is provided at s12K and section 12M provides for the hearing and determination of the appeal. Subsections 12M(1), (3), (6) and (7) are particularly apposite here:12M Hearing and determination of appeal(1) Subject to subsection (7) of section 12K, every appeal against a decision of the chief executive shall be by way of rehearing; but where any question of fact is involved in any appeal, the evidence taken before or received by the chief executive bearing on the subject shall, subject to any special order, be brought before the Authority as follows:(a) as to any evidence given orally, by the production of a copy of the notes of the chief executive or of such other material as the Authority thinks expedient:(b) as to any evidence taken by affidavit and as to any exhibits, by the production of the affidavits and such of the exhibits as may have been forwarded to the Authority by the chief executive, and by the production by the parties to the appeal of such exhibits as are in their custody.(3) The Authority shall have full discretionary power to hear and receive evidence or further evidence on questions of fact, either by oral evidence or by affidavit.(6) The Authority shall, within the scope of its jurisdiction, be deemed to be a commission of inquiry under the Commissions of Inquiry Act 1908, and subject to the provisions of this Act, all the provisions of the Act, except sections 2, 10, 11, and 12, shall apply accordingly.(7) Subject to subsection (2) of section 12I, in the determination of any appeal the Authority may confirm, modify, or reverse the decision or determination appealed against.[14] As can be seen from the foregoing, the Appeal Authority has very broad powers of general appeal by way of rehearing.The first question is too broad[15] I immediately observe that the first question of the case stated is very broadly framed. It is an invitation to undertake an open ended review to determine whether the Authority was wrong. That cannot be a proper basis for an appeal by way of case stated on a question of law.10 Rather, my jurisdiction on appeal is limited to10 Harrison v Ministry of Transport [2004] NZAR 106 (CA) at 109 and 113.questions of law only. In fairness, the Authority was no doubt responding to MrCook's broad complaint, namely that the Chief Executive got it wrong.[16] Following discussion with Ms Clark, the critical issue arising on the appeal iswhether the Authority undertook its own assessment of Mr Cook's claim to a specialbenefit as it is empowered to do by s12I and s12M. Ms Clark responsibly signalled to the Court that at [10] of the decision the Appeal Authority has used language akin to judicial review. I agree. While this is not an error of law per se, I must be satisfied that the Authority has come to its own view on the merits in order to be sure that Mr Cook's right of appeal has been properly vindicated.11 An analogue can be drawn to the power of this Court to hear appeals of law and fact. As the Supreme Court stated in Austin, Nichols & Co Inc v Stichting Lodestar:12On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.[17] And further at [16]:Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.[18] I therefore proceed on the basis that the first question requires an assessmentof whether the Authority arrived at its own assessment of the merits of Mr Cook'sclaims.Is there a problem?[19] Mr Cook's general complaint about the Appeal Authority's conclusions aboutthe Chief Executive's decision cannot succeed. Save in one respect, the decision11 See also Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 (CA) at [109]- [111] as to the important distinction to be made between a 'review' function and a de novoappeal. The Court of Appeal held that the unfairness that tainted the decision under scrutiny was not remedied or cured by the subsequent decision of the Review Panel that did not consider the correctness of the decision de novo.12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].displays due consideration of the Chief Executive's decision and endorses it forreasons stated in the decision.[20] I have tested robustness of the decision by reviewing the Report of the Benefits Review Committee and the Ministry's report under s 12K(4)(e) of the Social Security Act 1964. It is abundantly clear to me (as it was to the Appeal Authority) that the Ministry and the Benefits Review Committee thoroughlyassessed the merits of Mr Cook's claim to a special benefit.[21] The Benefits Review Committee report details Mr Cook's and the Ministry'scase. Mr Cook claimed he had only $70-80 to pay for among other things, his car registration costs, phone costs and special dietary needs. The Ministry assessed whether, in accordance with the Ministerial direction, the applicants deficiency of income over his or her expenditure and commitments is reasonably substantial. The Ministry observed that there was no deficiency based on the following assessment:Chargeable IncomeInvalids Benefit $256.19Disability Allowance $60.17Total Weekly Chargeable Income (A) $316.36Allowable CostsRent $64.00Disability Allowance costs $81.55Total Weekly Allowance Costs (B) $141.55Deficiency/SurplusDisposable Income $176.74Less Standard Costs $166.62Surplus $10.1230% of allowable costs $42.47[22] The Benefit Review Committee report concluded:6.11 the Committee noted that the Special Benefit was grantedpursuant to legislation under former Section 61G of The Act and Ministerial Direction given under Section 5 of The Act.6.12 The Committee notes that Section 81 of the Act allows the Ministryto conduct a review of the Applicant's benefit. It states:The chief executive may from time to time review any benefit in order to ascertain-(a) Whether the beneficiary remains entitled to receive it; or(b) Whether the beneficiary may not be, or may not have been, entitled to receive that benefit or the rate of benefit that is or was payable to the beneficiary-6.13 The Committee notes that in relation to the Special Benefit beingcancelled from 25 December 2013, it found that the 'lump sum payments' approved reduced the Applicant's need for a continuinggrant as the payment eliminated two essential costs.6.14 The Committee found the Special Benefit was being paid at rate of $67.68 per week. However, the Ministry utilised discretion when it paid in full the Applicants outstanding balance of $1061.42 to Instant Finance and $1304.79 to Home Direct reducing the Applicants outgoings by $50.00 per week. Therefore, the Ministry was correct to cancel this Supplement as there was no deficiency of income to warrant the on-going payment of Special Benefit.6.15 Furthermore, the committee noted that the Applicant has received Special Benefit for more than 10 years and the Ministry has exercised discretion in the fullest over this period of time. A Special Benefit is not intended as a long-term solution to a client's financial shortfall unless the client's individual circumstances justify this. It is instead paid to help clients meet their essential living costs while they make efforts to reduce their commitments and live within their usual income.6.16 The Committee notes that the Applicants disability costs such astravel, doctor's visits and medications are included on the Disability Allowance which is more advantageous to the Applicant as that supplement is paid dollar for dollar to the maximum allowance of $60.54.6.17 The Committee found the Ministry could not exercise discretion to include costs such as life insurance and car registration in the assessment of Temporary Additional Support as these have been taken into account in the Standard Costs are not considered allowable costs under Schedule 2 of the Regulations.6.18 The committee would like to address the issue of the Applicant'sdietary requirements due to his medical issues and are satisfied withthe explanation from the Social Security Appeals Authority 'Using the Otago Food Cost survey figure we are satisfied that a healthy diet can be purchased for $86 per week and possibly less for a man in the Auckland region' therefore it does not deem the Applicant to have special or unusual reason's for extra expenditure when buyingfood as compared to others in a similar general position.6.19 The Committee found the Applicant is being paid full and correct entitlement, furthermore it would like to congratulate the Ministryfor the good service the Applicant acknowledges he has received when dealing with them.6.20 The Committee is satisfied in its findings that the Ministry has actedfairly in this instant case and followed correct procedure's inaccordance with the appropriate legislation.[23] The Ministerial report, also before the Authority, provides a very detailed narrative of the background events, Mr Cook's claim and the Ministry's assessment.This report concludes that Mr Cook is left with approximately $74-$84 per week after taking into account specified expenditure. Reference is also made to the following:5.24 Although the appellant's budget is tight, the Ministry would submitthat it does not appear that he had a substantial deficiency of income over expenditure. In this regard the Ministry notes:-d. that based on the University of Otago Food Cost Surveyfor 2013 a basic diet for a man in the Auckland area is $64 per week. In 2012 it was $66, $86 and $103 respectively.The Ministry submits that the appellant's requirements couldadequately be met by a basic or moderate diet[24] A copy of the Food cost Survey 2013 report is attached to the report.[25] The Authority then makes a number of positive findings in light of the available material, namely:(a) The appellant has not shown any special or unusual expenditure compared to others in a similar situation.(b) He had additional expenditure in connection with the finance company loan and his purchases from Home Direct, but these payments were eliminated when the two debts were repaid.(c) Mr Cooks health is a concern, but he receives the Disability allowance in additional to his basic benefit.(d) Mr Cook could improve his position and avoid further financial difficulties by reviewing his decisions to maintain a motor vehicle and to continue to borrow money from the finance company.[26] Problematically however it is not immediately obvious from the record of the Appeal Authority decision that it has independently turned its collective mind to thesubstance of Mr Cook's claim about his dietary requirements. Indeed there isnothing in the decision dealing specifically with Mr Cook's claim to special dietary requirements as evidenced by the letter from his Doctor. As noted the issue wascanvassed by the Benefit Review Committee and in the Ministry's report byreference to the findings of the Otago Food Cost survey to the effect the cost for a moderate diet was $86 per week. A moderate diet is defined in the survey to mean:13The Moderate cost category allows for an increase in the variety of meats, fish, fruits and vegetables and the inclusion of some convenience foods. This category is calculated from the basic cost by adding 30% to the basic cost figure.[27] I am prepared to assume that the Authority considered all of this material.But I cannot be sure that the Authority specifically assessed Mr Cook's dietaryrequirements against this study and formed its own view on whether (a) the moderate diet was suitable and (b) whether Mr Cook had sufficient income to pay for it.[28] Ordinarily succinctness of expression is to be commended. But I have cometo the view that the Authority's decision does not satisfy me that it has turned itsmind to, and independently assessed, whether Mr Cook's income is sufficient to payfor his special dietary requirements. The matter must be referred back to the Authority to consider this specific issue.[29] As to the balance of Mr Cook's substantive concerns, I see no merit in them.The Chief Executive was empowered to review the need for a special benefit and save in respect of the issue I have identified, the Authority properly addressed Mr Cook's claim. For completeness I see nothing in the decision to pay Mr Cook's13 Department of Human Nutrition, University of Otago "Information package for users of theestimated food costs 2013" at 3.debts in a lump sum. That was entirely a matter for the Ministry in the exercise of its discretion to review and then cancel a special benefit.Question 2[30] I also dismiss the appeal on the second question of law.[31] The Social Security Appeal Authority is established by s 12A of the Society Security Act 1964. It states:12A Social Security Appeal Authority(1) There is hereby established an Authority to be known as the Social Security Appeal Authority.(2) The Authority shall consist of 3 persons appointed by the Governor- General on the recommendation of the Minister given after consultation with the Minister of Justice.(3) One of the members shall be appointed as Chairman of the Authority.[32] Section 12N then deals with the sitting of the Appeal Authority and it states:12N Sittings of Appeal Authority(1) The presence of the chairman and 1 other member shall be necessary to constitute a sitting of the Authority.(2) The decision of a majority of the members present at a sitting of the Authority shall be the decision of the Authority. If the said members are equally divided in opinion, the decision of the chairman shall be the decision of the Authority.(3) Every sitting of the Authority shall be held in private and in such place as it considers convenient having regard to the nature of the matters to be decided:provided that the Authority may, in any case if it considers that the interests of the parties to the appeal and of all other persons concerned will not be adversely affected, order that the sitting or any part of it shall be held in public.(4) It shall not be lawful to publish any part of the proceedings before the Appeal Authority unless in any case the Authority orders otherwise.(5) Every person who acts in contravention of subsection (4) commits an offence and shall be liable on conviction to a fine not exceeding $100.[33] Section 12E provides:12E Deputies of members(1) In the event of the incapacity of any member of the Appeal Authority by reason of illness or absence or any other cause, the Governor- General may, on the recommendation of the Minister given after consultation with the Minister of Justice, appoint some other person qualified for appointment to act in the place of the Chairman or member, as the case may require. Every person so appointed as deputy shall, while the incapacity continues, be deemed for all purposes to be the Chairman or a member of the Authority, as the case may be.(2) No appointment of a deputy, and no acts done by a deputy acting as Chairman or by the Authority, while the deputy is acting as such, shall in any proceedings be questioned on the ground that the occasion for his appointment had not arisen or had ceased.(3) Notwithstanding the provisions of subsections (1) and (2), the Governor-General may, on the recommendation of the Minister given after consultation with the Minister of Justice, appoint some other person qualified for appointment to be Deputy Chairman, to act as Chairman from time to time as required.[34] Plainly this section enables the appointment of deputy members in the eventof incapacity of the chairman of the Authority including by reason of "absence" andfor a deputy chairman to sit as and when required as chairman.[35] In the present case the Authority was comprised of Mr R D Bernard, identified as chairperson, and Mr K Williams as a member. Mr Bernard wasappointed "deputy chair" in 2013 in accordance with s 12A(2) of the Act.[36] I therefore accept the argument on behalf of the Authority that the deeming provision at s 12E(1) of the Act means that while Mr Bernard has been appointed"deputy chairperson" he was deemed to be chairman in the incapacity or absence ofthe chairman.[37] In case I am wrong about this, I would dismiss the appeal in any event on the basis that the error was immaterial and inconsequential. This is not a case where themembers of the Authority were not formally appointed in accordance with the legislative requirements. I note in this regard that Mr Bernard was appointed by way of notice in the New Zealand Gazette on 30 May 2013.[38] This second limb or question is therefore answered in the negative.Outcome[39] The appeal is allowed in part only. The matter is remitted back to the Social Security Appeal Authority to reconsider whether the Chief Executive erred in findingthat Mr Cook's dietary requirements did not mandate continuance of his specialbenefit.[40] I wish to conclude by commending Counsel for the Chief Executive for the full canvas of the background, the law and the transparent presentation of the issueregarding the apparent form of the Appeal Authority's decision.Costs[41] There will be no order as to costs given that Mr Cook was self represented. Mr Cook is entitled to have his reasonable disbursements as fixed by the Registrar paid by the respondent.