DUNN V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2006-485-002588

DUNN V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2006-485- 002588 4 October 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-485-002588IN THE MATTER OF an appeal by way of case stated from a determination of the Social Security Appeal Authority at Wellington under s12Q of the Social Security Act 1964 BETWEEN FRANCIS CHESTER DUNN Appellant AND CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 18 June 2007 Appearances: Appellant in Person M Hodge for Respondent Judgment: 4 October 2007JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 4 October 2007 at 11.00 a.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Crown Law Office, PO Box 2858, Wellington Copy to: Francis C Dunn, 45 Albany Heights Road, Albany RD2[1] The appellant, Francis Chester Dunn, appeals by way of case stated under s 12Q of the Social Security Act 1964 from a decision of the Social Security Appeal Authority ("the Authority"). By its decision of 22 June 2006, the Authority had upheld a decision of the Chief Executive of the Ministry of Social Development to include in the calculation of the appellant's New Zealand Superannuation payments a deduction for a United Kingdom pension that he receives relating to the period that he lived in the United Kingdom. [2] The Chief Executive's decision was made in a purported application of the provisions of s 70(1) of the Social Security Act 1964. Mr Dunn's fundamental contention, advanced before the Authority and now in this appeal, is that the amount of his United Kingdom pension should not be deducted from his New Zealand Superannuation because, unlike New Zealand Superannuation, which is funded out of general taxation, his United Kingdom pension has been funded from his personal contributions.The Authority's decision[3] The facts found by the Authority, as set out in the case stated appeal, were as follows:[3] While living in the United Kingdom, prior to immigrating to New Zealand, the appellant made compulsory contributions to the United Kingdom National Insurance Fund under the legislation that applied there at that time. While the contributions he made were compulsory, it was also possible to make voluntary contributions. [4] The appellant was employed by the United Kingdom Government, in the Navy, for seven years prior to immigrating to New Zealand, from 1950 to 1957. [5] The appellant has been in receipt of New Zealand Superannuation at the half married rate since 11 June 1994. [6] From 7 August 2000 the appellant was granted a pension from the United Kingdom of £42.36 per week, made up of a Basic Pension of £33.75 per week, Extra Pension of £6.61 per week, and Graduated Pension of £2.00 per week.[7] The Ministry received advice of the appellant having been granted the Basic Pension and Extra Pension on 24 November 2000. The appellant declined to provide information about his receipt of Graduated Pension for a period of time, and his New Zealand Superannuation was suspended as a result. This issue is the subject of the Authority's decision No. 056/02. [8] The appellant subsequently provided verification of his full UK pension entitlement. On 6 January 2003 the Ministry reinstated the appellant's New Zealand Superannuation at the new rate, advised the appellant of the new rate of his New Zealand Superannuation, and of his review rights. [9] Correspondence followed between the Ministry, the appellant, a lawyer engaged by the appellant, and the Ministry of Social Development, between February 2003 and October 2003. [10] On 22 December 2004 the appellant sought a review of the Chief Executive's decision. [11] On 17 January 2005 the Ministry contacted the appellant to explore the possibility of the appellant's eligibility for dual entitlement. The appellant advised that he had not continued to make any contributions to the United Kingdom National Insurance Scheme while resident in New Zealand. The Ministry therefore concluded that the appellant did not meet the conditions of dual entitlement. As a result, the Ministry wrote to the appellant advising that the decision to deduct the amount of his UK pension from his entitlement to New Zealand Superannuation had been upheld on an internal review. [12] A Benefits Review Committee hearing was arranged, and took place on 4 November 2005. The Committee upheld the decision of the Chief Executive in a decision dated 18 November 2005. The appellant then appealed to the Authority.[4] The Authority referred to the wide language of s 70(1) of the Social Security Act 1964. It held that, in order for the United Kingdom pension to be deducted from New Zealand Superannuation, it was not necessary for the United Kingdom pension to be identical to one of the benefits paid in New Zealand. If it was sufficient if, as it held to be the case, the legislation governing the United Kingdom pensions provided for a range of benefits comparable to the programme of social security under relevant New Zealand Social Security legislation. [5] The Authority further held that the provisions of s 70 of the Act did not make any distinction between contributory and non-contributory schemes. It was sufficient if the pension in question formed part of a programme providing for the "contingency" for which benefits are payable in New Zealand. No significance could properly be attached to the fact that while the New Zealand scheme wasfunded by taxation, the appellant's pension was derived from compulsory contributions. [6] Further, the Authority considered that the appellant's claim that his pension was "earned" or "awarded" rather than "granted" did not have any substance. The position was simply that the Government of the United Kingdom, having required the appellant to make a compulsory contribution to the government-administered pension fund had then agreed to pay him a pension based on the contributions that had been made. [7] Referring to Article 15 of the Convention attached to the Social Security (Reciprocity with The United Kingdom) Order 1990 (the "Reciprocity Order"), the Authority held that it reinforced the provisions of s 70 of the Social Security Act, providing that the amount of any benefit which the claimant was entitled to receive under the United Kingdom legislation should be deducted from the amount of the benefit that would otherwise have been payable to him under the New Zealand legislation. It held that there was no basis for an argument, evidently advanced by the appellant before the Authority, that the Convention did not apply to contributory benefits and was only in place to allow persons who did not qualify through residence for New Zealand Superannuation to access benefits that they would otherwise not be entitled to. [8] Next, the Authority noted that there were two exceptions to the requirements of s 70 that the United Kingdom pension be deducted. One of those is based on an exemption in the case of "Government occupational pensions". Although the appellant had been employed in the United Kingdom Navy between 1950 and 1957, the Authority held that the information available did not suggest that the pension that he was receiving from the United Kingdom was a "Government occupational pension". The second exemption, based on the reciprocal agreement, concerned cases where a person, resident in New Zealand on 1 January 1970 made, while resident in New Zealand, contributions to national insurance under the United Kingdom legislation. Mr Dunn, however, acknowledged that he did not make contributions to the United Kingdom scheme following his arrival in New Zealand and consequently, his was not a case falling within the exemption.[9] For these reasons, the Authority was satisfied that the appellant's United Kingdom pension should be deducted from his entitlement to New Zealand Superannuation under s 70 and under Article 15 of the Reciprocal Agreement.The questions of law[10] The questions of law stated for the opinion of this Court are whether the Authority erred in law in:[i] Determining that the appellant's pension 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 the Social Security Act 1964, the Social Welfare (Transitional Provisions) Act 1990, the New Zealand Superannuation & Retirement Income Act 2001, or the War Pensions Act 1954, which is administered by or on behalf of the Government of the United Kingdom? [ii] Determining that it is not necessary for the pension or benefit paid by the United Kingdom Government to be identical to one of the benefits paid in New Zealand? [iii] Determining that the provisions of s 70 do not make any distinction between contributory and non-contributory schemes? [iv] Applying the High Court's decision in Hogan v The Chief Executive of the Department of Work and Income in determining that no significance can be attached to the fact that while the New Zealand scheme is funded by taxation the appellant's UK pension is derived from compulsory contributions? [v] Determining that the Reciprocal Agreement applies to the appellant? [vi] Determining that the New Zealand Superannuation received by the appellant must be reduced by the amount of the appellant's UK pension in accordance with s 70 of the Act and Article 15 of the Reciprocal Agreement?Relevant statutory provisions[11] Before dealing directly with the questions raised by the appeal, it will be convenient to set out the relevant statutory provisions. I begin with s 70(1) of the Social Security Act, which provides as follows: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 under the Social Welfare (Transitional Provisions) Act 1990 or under Part 6 of the War Pensions Act 1954 or under the New Zealand Superannuation and Retirement Income Act 2001 is entitled to receive 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's spouse or partner or any of that person's dependants is entitled to receive 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 Social Welfare (Transitional Provisions) Act 1990 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 under the Social Welfare (Transitional Provisions) Act 1990 or under Part 6 of the War Pensions Act 1954 or under the New Zealand Superannuation and Retirement Act 2001 shall, subject to subsection (3) of this section, 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: Provided that if the chief executive determines that the overseas benefit, pension, or periodical allowance, or any part of it, is in the nature of, and is paid for similar purposes as,— (a) compensation for injury or death for which payment could be made under the Injury Prevention, Rehabilitation, and Compensation Act 2001 if the injury or death had occurred in New Zealand after the commencement of that Act; or (b) a war pension or allowance granted under the War Pensions Act 1954 of a type which would not affect any recipient's entitlement to a benefit in accordance with section 72 of this Act unless the pension or allowance is a pension or payment granted under Part 6 of the War Pensions Act 1954; or (c) a disability allowance granted under this Act— such overseas benefit, pension, or periodical allowance, or part of it, as the case may be, shall be treated as if it were in fact such compensation, war pension or allowance, or disability allowance.[12] Some general observations can appropriately be made about s 70(1) of the Act at this point. For present purposes, the key provision is in s 70(1)(b). The question that it poses is whether a benefit or pension, granted elsewhere than in New Zealand, is "in the nature of a payment" which "forms part of a programmeproviding benefits, pensions, or periodical allowances for any of the contingencies for which benefits, pensions, or allowances may be paid under this Act". The question of whether the pension that Mr Dunn receives from the United Kingdom is a payment of a kind referred to in subsection (1)(b) is the question which lies at the heart of this case. [13] It is also relevant to refer to the terms of the Reciprocity Order mentioned above, which was made pursuant to s 19 of the Social Welfare (Transitional Provisions) Act 1990. The Reciprocity Order came into effect on 1 April 1990. It provided that provisions contained in the Convention set out in the Schedule to the Order were to have force and effect so far as they related to New Zealand. Paragraph 2(2) of the Reciprocity Order provided as follows:The provisions of the Social Welfare (Transitional Provisions) Act 1990 and of the Social Security Act 1964 and of Part 6 of the War Pensions Act 1954 and of the Regulations and Orders in force under those Acts shall have effect subject to such modifications as may be required for the purpose of giving effect to the said Convention.[14] The authority for an order in those terms was plainly set out in s 19(1)(b) of the Social Welfare (Transitional Provisions) Act 1990 and no issue arises as to the lawfulness of the order in that respect. [15] Article 15 of the Convention attached to the Reciprocity Order provided as follows:(1) Subject to the provisions of paragraphs (3) and (4) of this Article, for the purpose of any claim to receive benefit under the legislation of New Zealand, whether by virtue of the provisions of this Convention, the former Agreements, or otherwise, the amount of any benefit which the claimant is entitled to receive under the legislation of the United Kingdom shall be disregarded in the computation of his income and shall be deducted from the amount of benefit which would otherwise have been payable to him under the legislation of New Zealand. Provided that, in the case of a married claimant, the amount to be deducted shall be the aggregate amount of any benefit which the claimant and the claimant's wife or husband are entitled to receive under the legislation of the United Kingdom, or such part of that aggregate amount as may be determined by the competent authority of New Zealand.(2) For the purpose of applying the provisions of paragraph (1) of this Article, benefit under the legislation of the United Kingdom includes any increase of or additional amount payable therewith. (3) Notwithstanding any other provision of this Convention, a person – (a) who is in receipt of New Zealand national superannuation otherwise than by virtue of this Convention or the former Agreements; and (b) who was usually resident in New Zealand on 1 January 1970; and (c) was, while so resident in New Zealand prior to that date, a contributor to National Insurance under the legislation of the United Kingdom, shall be entitled to receive that national superannuation without diminution, notwithstanding that he is also entitled to receive a retirement pension under the legislation of the United Kingdom. (4) For the purpose of any claim to receive benefit under the legislation of New Zealand, whether by virtue or the provisions of this Convention, the former Agreements or otherwise, an industrial disablement pension payable under the legislation of the United Kingdom shall be treated as if it were accident compensation payable under the legislation of New Zealand.[16] Reference will also be necessary to some relevant United Kingdom legislative provisions. I will do that at the appropriate point in the discussion below. [17] I also record at this point that in the course of an argument that was quite wide-ranging Mr Dunn did not specifically address many of the individual questions posed by the case stated appeal. Rather, he dealt with the matter in general terms. I add that, in the course of his submissions, he referred me to a number of International Instruments that Mr Hodge had included in the bundle of documents provided because Mr Dunn wished to refer to them. The documents included the United Nations Charter of Human Rights, the International Labour Organisation Convention on Equality of Treatment (Social Security) and the European Conference on Human Rights, Protocol 1. I have not found any of the provisions to which I have referred of assistance in resolving the issues raised by the appeal, and I will not mention them further. [18] Another document that was included was a letter written by a solicitor employed by Crown Law to the respondent dated 6 September 2001. At the outsetof the hearing Mr Hodge explained that that document had also been included at Mr Dunn's request but he contended that it was subject to legal professional privilege. Having heard the parties, I upheld Mr Hodge's submission and I have not referred to that letter for the purposes of resolving the appeal. [19] I now turn to the specific questions that are raised on the appeal.First question[20] This question asks whether the Authority erred in its determination that the appellant's pension was 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 the Social Security Act 1964, the Social Welfare (Transitional Provisions) Act 1990, the New Zealand Superannuation and Retirement Income Act 2001, or the War Pensions Act 1954, which is administered by or on behalf of the Government of the United Kingdom. [21] Mr Hodge, who argued the appeal for the respondent, submitted that this question essentially raised two issues. The first issue is whether the appellant's pension formed 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 the New Zealand legislation. The second issue is whether the appellant's pension is administered by or on behalf of the Government of the United Kingdom. In submissions in support of the appeal, Mr Dunn did not directly address the first of those issues. Instead, he mounted a tangential attack on the fact that he had been asked to provide the details of his United Kingdom pension. He contended that the Authority was erroneous "in allowing the Ministry to breach my rights under the Privacy Act, when complying with 69G and recording all details under s 69H of the SS Act as the private details of my pension were awarded [sic] because of personal contributions". [22] Section 69G of the Act enables the Chief Executive to require any applicant for a benefit under the Act to provide information establishing to the Chief Executive's satisfaction that the applicant has taken all reasonable steps to obtain anyoverseas pension to which he is entitled. Section 69H enacts that every applicant for a benefit under the Act must provide the Chief Executive with information establishing to the latter's satisfaction the rate of any overseas pension "granted" to the applicant. [23] I apprehend that it is the appellant's argument that because of the nature of the pension that he receives from the United Kingdom it is not to be equated with a pension that was "granted" (the term used in s 69H(1)). Therefore, he should not have been asked to provide the information. He contends that it is only because his right to privacy has been breached that the respondent has been in a position to reach the decisions that it had and which are subject to appeal. [24] The appellant's stance is apparently based upon his perception that there is a fundamental difference between the United Kingdom scheme which was essentially a contributory scheme to which both he and his employers made payments, and the New Zealand scheme which is a State funded scheme paid out of general taxation revenue. He contends that no pension has been "granted" to him because the payments made under his United Kingdom pension are payments that have been "earned" by personal contributions made by him and his employers. Consequently, he argues that it is not "public money" and it followed that s 69H did not apply. I observe that the word "granted" is also used in s 70(1)(a). I understand that Mr Dunn sees, in the use of that word, justification for the distinction that he draws between contributory and non-contributory schemes. [25] I do not consider that the use of the word "granted" can have the implications for which Mr Dunn contends. Whether 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 have been made, the word "grant" is apt to describe the payment of entitlements under either scheme. The Oxford English Dictionary gives as one relevant meaning of "grant", "to accede to, consent to, fulfil (a request, prayer, wish etc.). However, another relevant meaning is simply "to allow to have". Section 70(1)(a) of the Social Security Act speaks of the person being "entitled" to receive a benefit or pension "granted elsewhere than in New Zealand". It does not distinguishbetween different kinds of "entitlement" and I see no room for the argument that the appellant advances that the payment of his United Kingdom pension is not an entitlement granted to him in the United Kingdom. It may be that he has earned the entitlement by making specific payments to obtain it. It is still an entitlement. [26] The scheme to which Mr Dunn made contributions in the United Kingdom was that country's National Insurance Fund. It was not a private scheme. The contributions that he made were compulsory, although it was possible also to make voluntary contributions. The Social Security Contributions and Benefits Act 1992 (UK) provides for a social security scheme that includes both contributory and non- contributory benefits. The former is dealt with in s 20 of that Act and includes short and long-term incapacity benefits, maternity allowances, widowed mother's allowances and window's pensions, bereavement payments and allowances, "category A and B retirement pensions", certain additional pensions and child's special allowances. [27] Non-contributory benefits payable under the United Kingdom Act include various allowances, together with category C and category D benefits. Mr Dunn is not in receipt of a category C or category D retirement pension. He receives a category A pension, that is to say a pension payable to a person by virtue of his own contributions. Under the United Kingdom legislative scheme the category A pension consists of a basic pension payable at a weekly rate, and an additional pension payable where there are one or more surpluses in the pensioner's earnings factors for the relevant years. The amount of the basic pension that he receives is £33.75 per week. He receives an extra pension of £6.61 per week. In addition, he receives a graduated pension of £2 per week under s 36 of the National Insurance Act 1965 (UK). [28] The payment of Category A pensions is out of the National Insurance Fund (s.173 of the Social Security Administration Act 1992 (UK)).That is administered by the Commissioners for Her Majesty's Revenue and Customs (s 161 of that Act). Funds in the National Insurance Fund are also allocated towards the National Health Service (s 162) as well as to a number of other authorised objects (s 163). There isprovision for adjustments between the National Insurance Fund and the Consolidated Fund (s 165)). [29] Given the nature of the appellant's United Kingdom pension, there can be little doubt that it forms part of a "programme providing benefits, pensions or periodical allowances" within the meaning of s 70(1)(b) of the Social Security Act. The question then is whether that programme provides for "contingencies for which benefits, pensions or allowances may be paid" under the New Zealand legislation. Plainly it does. The "contingency" is the attainment of the qualifying age for receipt of the payments (see Roe v Social Security Commission, HC WG M270/86, 10 April 1987, Davison CJ; Ruifrok v Attorney-General: Van Lindt v Attorney-General (HC WG AP199/97, 237 October 1999, Gendall and Durie JJ); Hogan v The Chief Executive of the Department of Work and Income of New Zealand (HC WN AP49/02, 26 August 2003, Ellen France J and Tetley-Jones v The Chief Executive of the Department of Work and Income of New Zealand (HC AK CIV 2004 485-1005, 3 December 2004, Winkelmann J. [30] I think it is also clear that the appellant's pension is one administered by or on behalf of the government of the United Kingdom. The provisions of the United Kingdom Legislation, to which I have referred above, make that plain [31] In Hogan v The Chief Executive of the Department of Work and Income Act, Ellen France J said at [26]: I accept the respondent's submission that 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 a person's income which the Government chooses not to call taxation. True private savings schemes will not be caught by s 70 as a programme administered by the Government will not pay them.[32] I agree with those observations. Putting the position in a slightly different way, s 70(1)(b)'s requirement that the overseas fund be one administered "by or on behalf of the Government of the country from which the benefit, pension or periodical allowance is received" means that contributions which are paid to a private scheme will not be caught by the provision. It is clear, however, that that is not the case in respect of Mr Dunn's pension. The same point, it seems to me, liesbehind what was said by Lord Hoffman in respect of the United Kingdom arrangements in paragraph [21] of his judgment in R (on the application of Carson) v Secretary of State for Work and Pensions [2005] 4 All ER 545:National insurance contributions have no exclusive link to retirement pensions, comparable with contributions to a private pension scheme. In fact the link is a rather tenuous one. National insurance contributions form a source of part of the revenue which pays for all Social Security Benefits and the National Health Service (the rest comes from ordinary taxation).[33] The answer to the first question is therefore, no.Question 2[34] This question asks whether the Authority erred in law in determining that it is not necessary for the pension or benefit paid by the United Kingdom Government to be identical to one of the benefits paid in New Zealand. [35] Once again, Mr Dunn did not directly deal with this question. The basic distinction which he sought to draw and emphasise, between a contributory and a non-contributory scheme, focuses on the source of the funds paid into the scheme. This question concerns the benefits paid out of the scheme. In Tetley-Jones v The Chief Executive of the Department of Work and Income of New Zealand (supra) Winkelmann J said at [48]: I do not accept the need for the Chief Executive to undertake a specific comparison of the contingencies for which the New Zealand and overseas payments are made. I accept Ms Hansen's submissions that all that is required is that the overseas pension programme that provides benefits for one or more of the contingencies for which benefits are provided for in the New Zealand Social Security legislation.[36] I suspect that there are some words missing in the second sentence and that the meaning Her Honour was intending to convey was that "all that is required is that the overseas pension programme be one that provides benefits etc.". With that alteration, I respectfully agree with Her Honour's observations. In my view, it would make s 70 unworkable if subs (1)(b) required some kind of close comparative analysis between the New Zealand and overseas entitlements. There is no indication in any of the language used that the legislature intended such a result. It is sufficient,I think, if it can be shown that the entitlements in each country are payable in similar circumstances. In my view, this second question must also be answered in the negative.Question 3[37] The third question asks whether the Authority erred in law in determining that the provisions of s 70 do not make any distinction between contributory and non-contributory schemes. For reasons that I have already traversed, I consider that this question must also be answered in the negative. [38] Mr Dunn's argument was essentially based on the use in s 70(1)(a) of the Social Security Act of the expression "benefit, pension or periodic allowancegranted elsewhere than in New Zealand". I have already dealt with the implications of the use of the word "granted". I have also already considered the implications of the fact that Mr Dunn made periodic contributions to the United Kingdom scheme. I cannot find in any of the language used in s 70(1) any distinction between contributory and non-contributory schemes. It is worth noting here a further observation made by Lord Hoffman in R (on the application of Carson) v Secretary for State for Work and Pensions, (supra)). At [24] he said: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 the consolidated fund. The difference is only a matter of public accounting.[39] I agree with Mr Hodge's submission that it would be illogical to make a distinction between contributory and non-contributory, government-run schemes. The only difference is that in the case of a contributory scheme a contributor pays money specifically earmarked for the purposes of the scheme into the fund, and in the case of a non-contributory scheme the payments are simply part of the income tax paid. Once again, the Authority has not erred in law, and the question must be answered, no.Question 4[40] In making its decision, the Authority referred to and purported to apply the decision of the High Court in Hogan v The Chief Executive of the Department of Work and Income, (supra). This question asks whether or not it was correct to do so. Plainly, it was bound to do so and Mr Dunn did not present any argument to the contrary. [41] This question must, therefore, also be answered, no.Question 5[42] This question asks whether the Authority erred in law by determining that the reciprocal agreement applied to the appellant. Mr Dunn submitted that the Authority had erred in this respect. He referred to a submission dated 15 November 2005, by the Ministry of Social Development, which he maintained stated that he was not subject to the reciprocity order, a fact that he had been "trying to get across to the Ministry since December 2000". However, it appears that Mr Dunn must have misunderstood the submission. Paragraph 10 of it reads as follows:In regard to the reciprocal agreement with the United Kingdom, the applicant is correct in his assertion that he does not require the reciprocal agreement to qualify for New Zealand Superannuation. The Ministry submits that nonetheless, Article 15 of that agreement, which reflects s 70 of the Social Security Act, does apply to the applicant [43] The Ministry's submission was in response to a submission made by the appellant on 4 November 2005 to the International Benefits Review Committee. The nub of the appellant's submission was that s 70 of the Act applied only to what he described as "State funded" overseas pension schemes and not to contributory schemes. The writer of the submission, on behalf of the Ministry, rejected that contention and confirmed the Ministry's view that s 70 of the Act did not make such a distinction. [44] It is plain from Article 2 of the Convention attached to the Reciprocity Order that its provisions apply to the relevant United Kingdom legislation. The appellant's United Kingdom pension is clearly a "benefit" as that term is used in Article 15 (1) and I note in that respect that it is described as a "contributory benefit" under theSocial Security Contributions and Benefits Act 1992 (UK). In addition, it is clear, if Article 15(3) and 15(1) of the Convention are read together that the term "benefit" relates to both the New Zealand Superannuation and United Kingdom retirement pensions. [45] In the circumstances, question 5 must also be answered in the negative.Question 6[46] Question 6 effectively contains two questions. The first is whether the Authority erred in law in determining that the New Zealand Superannuation received by the appellant must be reduced by the amount of the appellant's United Kingdom pension in accordance with s 70 of the Act, and the second is whether it erred by holding that was required as a result of Article 15 of the Reciprocal Agreement (i.e. the Convention). [47] Insofar as the first of those questions is concerned, the appellant did not argue that any of the exemptions set out in proviso to s 70(1) applies. Section 2 of the Social Security Act defines an "overseas pension" by reference to the benefits, pensions or periodical allowances referred to in s 70(1), exempts those kinds of payment referred to in the proviso to s 70(1) and also excludes a "Government occupational pension". In this case, the Authority decided that the pension was not a Government occupational pension and it recorded that finding in paragraph 21 of the case stated appeal. That was a question of fact for the Authority to determine, and it could not be, and has not been, challenged on appeal. [48] In the circumstances, s 70 required deduction of the amount of the appellant's United Kingdom pension from the New Zealand Superannuation payments. [49] As to the Convention, Article 15 requires that the amount of the appellant's pension be deducted from superannuation. It is a provision to the same effect as s 70. There is also a provision in Article 15(3), which the Authority discussed, and I have mentioned earlier, concerning payments made by a person resident in NewZealand on 1 January 1970 into the United Kingdom fund, prior to that date. The appellant was not entitled to the benefit of that exception. [50] Consequently, the answer to question 6 is no.Question 7[51] This question asks whether the provisions of the Reciprocity Order override the provisions of the New Zealand Superannuation and Retirement Income Act 2001 and s 70 of the Social Security Act 1964. Mr Dunn did not specifically address this question in his submissions. Mr Hodge submitted that so far as is relevant for the purposes of the present case Article 15(1) of the Convention is entirely consistent with the deduction provisions set out in s 70(1) of the Act. In the circumstances, no modification of s 70(1) was necessary to give effect to the Article. [52] As has been noted, however, Article 15 did modify s 70 of the Social Security Act, to the extent that it added a further exemption from deduction, in Article 15(3) for persons resident in New Zealand on 1 January 1970 who contributed to the United Kingdom scheme prior to that date. Neither party referred me to the provisions of the New Zealand Superannuation and Retirement Income Act 2001 and I prefer not to answer that part of the question in the circumstances. Otherwise, the answer should be that, insofar as the Social Security Act 1964 is concerned, the provisions of the Reciprocity Order do not override the provisions of s 70 of the Act, but they do modify them.Result[53] The various questions raised on the case stated appeal are answered in accordance with the foregoing judgment. In summary, the answers to questions 1 to 6 (inclusive) are all No. In relation to question 7, the answer is that the provisions of the Social Security (Reciprocity with The United Kingdom) Order 1990 do not override the provisions of s 70 of the Social Security Act 1964, but they do modify them.[54] If any question of costs arises, I will receive memoranda on the subject from counsel for the respondent and from Mr Dunn. Submissions should be filed and served, starting with the respondent within three weeks of the date of delivery of this judgment. Mr Dunn may have a further 14 days to reply to any submission that he receives from the respondent.