G SKELTON V CEO DEPT WINZ HC AK CIV 2004-485-1422

G SKELTON V CEO DEPT WINZ HC AK CIV 2004-485-1422 5 April 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2004-485-1422UNDER the Social Security Act 1964 IN THE MATTER OF an appeal by way of case stated from the determination of the Social Security Appeal Authority under s12Q of the Social Security Act 1964 BETWEEN GEORGINA SKELTON Appellant AND CHIEF EXECUTIVE OF THE DEPARTMENT OF WORK AND INCOME NEW ZEALAND Respondent Hearing: 15 February 2006 Appearances: A P Crabb for the Appellant L M Hansen for the Respondent Judgment: 5 April 2006 at 11 amRESERVED JUDGMENT OF PRIESTLEY JCounsel: A Crabb, P O Box 20-706, Glen Eden, Auckland L M Hansen, Crown Law Office, P O Box 2858, Wellington CentralCase Stated[1] This dispute, involving overpayment of a Social Welfare benefit to the appellant, comes before the Court by way of case stated under s12Q(1) of the Social Security Act 1964 ("the Act"). [2] A case stated appeal requires answers to specific questions. The questions posed for the Court are: i) Was there any evidence on which the Authority could base its decision that it was appropriate for the Chief Executive to establish an overpayment against the appellant for half of the total amount paid in respect of the period 30 December 1993 to 28 April 1998? ii) Did the Authority err in law by applying s86(3) of the Social Security Act 1964 in relation to the period the full amount of New Zealand Superannuation was paid to Mr Warde? iii) Does a formal burden of proof apply in this case? iv) If a formal burden of proof applies did the Authority apply the burden correctly?Background[3] The appeal arises out of a decision of the Social Security Appeal Authority ("the Authority") delivered on 22 January 2003. The effect of the Authority's decision was to confirm an earlier decision of the Benefits Review Committee to the effect that $10,050.53, being the appellant's share of New Zealand Superannuation, was an overpayment and as such recoverable. The Authority additionally held "it would not be inequitable" to require repayment of the debt by the appellant and that there was no basis for directing the debt should not be recovered.[4] Many of the relevant background facts were not in dispute. The overpaid sum related to the appellant's share of superannuation paid between 30 December 1993 and 28 February 1998. [5] The appellant and her husband (Mr Warde) had married in August 1989. The respondent's computer records indicated that the appellant's half share of New Zealand Superannuation was paid automatically into a bank account ("the bank account") number 11-5250-0107815-055 on a regular basis between early October 1993 and 8 March 1997. Thereafter the appellant's share had been paid into her husband's account. [6] Since the appellant had the status of a "non-qualified spouse" the entitlement to her component of the superannuation was subject to what is colloquially known as means testing, or in any event to her income not exceeding a prescribed figure. [7] The respondent's investigations indicated that between August 1993 and April 1997 the appellant earned modest wages as a cleaner. She was employed when a departmental investigation began. [8] The appellant's relationship with her husband was possibly erratic and they appear to have separated in February 1998. Both had periodic problems with alcohol. Mr Warde's New Zealand Superannuation was cancelled on 15 March 2000. [9] Between April 1997 and February 1998 all payments of New Zealand Superannuation was apparently paid into Mr Warde's account with the Auckland Savings Bank as a result of some agreement between the parties arising out of Mr Warde's need to address his debts. [10] In August 2000 both the appellant and Mr Warde (who at that stage was in a rest home) were interviewed separately by departmental officers. [11] On 13 December 2000 the Department wrote to the appellant asserting that a review of Mr Warde's New Zealand Superannuation had been finalised and that,having regard to relevant income exemptions and in particular the appellant's income, the total overpayment over a period of seven calendar years (December 1992 to December 1999) amounted to just over $17,300. [12] That overpayment, for reasons which do not concern the Court, was varied downwards as a result of a hearing before the Benefit Review Committee in September 2002 and the Committee's subsequent decision.The Authority's Hearing and Decision[13] In terms of s12M of the Act the Authority has wide powers to receive evidence.12M Hearing and determination of appeal(1) Subject to subsection (7) of section 12K of this Act, 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. (2) Notwithstanding anything in subsection (1) of this section, on any appeal against a decision or determination of the chief executive, the Authority may rehear the whole or any part of the evidence, and shall rehear the evidence of any witness if the Authority has reason to believe that any note of the evidence of that witness made by the chief executive is or may be incomplete in any material particular. (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. (4) The Authority shall also have regard to any report lodged by the chief executive under section 12K of this Act and to any matters referred totherein and to any evidence tendered thereon, whether or not such matters would be otherwise admissible in evidence. (5) In the exercise of its powers under this section the Authority may receive as evidence any statement, document, information, or matter which in the opinion of the Authority may assist it to deal with the matters before it, whether or not the same would be admissible in a Court of Law. (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.[14] The Authority had before it an affidavit sworn by Mr Warde. This indeed was the only affidavit evidence the Authority read. The appellant apparently chose not to give any evidence herself. [15] Counsel for the appellant criticised the Authority's approach to Mr Warde's affidavit. I thus set it out in full. The affidavit was sworn on 8 November 2002, five days before the Authority hearing.I ALAN MICHAEL WARDE of Auckland, Retired, swear: 1. THAT in 1988 I applied to the Department of Social Welfare for my then de facto partner Georgina Skelton to be included in my National Superannuation payments as a non-qualifying spouse. 2. THAT the application to have Georgina included in my National Superannuation was made without her knowledge, as were subsequent renewals of the benefit and income declarations made in respect of payments continuing. 3. THAT I received payments of National Superannuation in respect of Georgina up until 2000 when the Department of Work and Income discovered that Georgina and I were no longer living together as man and wife. 4. THAT Georgina and I have not been living together as man and wife since approximately August 1996 when she moved from the property we had shared up until this time. 5. THAT I received all payments of National Superannuation made in respect of Georgina and that these were made into bank accounts that I had sole access to and that Georgina had no access to.[16] The relevant parts of the Authority's decision which led to its conclusion are clear. The Authority referred to the background. The Authority referred to the bank account (supra) as being the appellant's bank account and assesses that the prefix "11" indicated the account was a Post Bank account. [17] After reviewing the appellant's employment history and the record of the appellant's 23 August 2000 interview the Authority then outlined the appellant's case before it which relevantly was:• Superannuation payments from April 1997 onwards were made into an account which was Mr Warde's account to which the appellant had no access.• The forms which lay behind the application for the appellant to be included in her husband's New Zealand Superannuation and various statements made at that time had been filled in by a number of different people on their face. Various discrepancies over signatures were apparent.• In the absence of evidence to the contrary it should be assumed the bank account was solely accessed by the appellant's husband.• Section 83 of the Act places liability for the debt on the appellant's former husband to whom the superannuation monies were paid. His alone was the liability for any over payment. [18] The Authority then reviewed the law and made the following findings.[29] Little weight can be placed on the affidavit of Mr Warde lodged by the appellant with the Authority on the day of the hearing. Mr Warde is an elderly man living in a rest home. He has apparently had a number of small strokes. His daughter has power of attorney in respect of his affairs. Whilst Ms Quinn was able to tell us that at the time she interviewed him Mr Warde had a good recall of the necessary events, we have no knowledge of Mr Warde's present capacity to swear an affidavit. Nor are we aware of the extent to which the appellant is able to influence him. The appellant told Ms Quinn in 2000 that she and Mr Warde are still good friends and she maintains regular contact with him. [34] We are of the view that the appellant did not separate from Mr Warde until early 1998. Moreover it is clear to us that throughout the period 1993 to 1998 the appellant received the benefit of the Superannuation payments. It appears to us that both the appellant and Mr Warde called at the Avondale office to arrange for the payment of the full amount of New Zealand Superannuation into an account in Mr Warde's sole name in 1997, to enable him to tackle the debt problems which the appellant's mismanagement of her money was creating. [35] There is no dispute in this case that until 1997 50% of the New Zealand Superannuation payment went into a Postbank account. The appellant acknowledged in her interview with Ms Quinn that her payments of New Zealand Superannuation were going into a Postbank account, that she had a card for this account and that she was collecting her half. Mr Warde's share on the other hand was paid into his ASB account. If the appellant wished to refute the statement given to Ms Quinn she needed to attend the hearing and explain why her statements to Ms Quinn should be disregarded. The evidence about whose account the Postbank Account was or who had access to that account is limited to the information the appellant gave Ms Quinn as the appellant did not attend the hearing and give evidence to the Authority. We do not accept the submission of the appellant's advocate that the appellant did have access to the money in this account. That submission is clearly contradictory to what the appellant told Ms Quinn. [36] In relation to the period April 1997 to February 1998 it appears that the total amount of the Superannuation payments were made into Mr Warde's ASB account by the agreement of the parties. We do not accept that the appellant did not continue to receive the benefit of those payments and in our view there is no basis for requiring repayment of the full amount of the debt from Mr Wade [sic]. [37] It is submitted on behalf of the appellant that s.83 of the Act places liability for the debt with Mr Warde because the benefit monies were paid to him. This submission overlooks the provisions of s86(3) which specifically provides for the recovery of overpayments from a husband or wife where the husband or wife misleads any officer engaged in the administration of the Act. [38] The appellant initially admitted in her interview with Ms Quinn that together with Mr Warde she had signed a statement submitted to the Department on 30 October 1998 declaring that neither she nor Mr Warde had any income apart from New Zealand Superannuation in the preceding 52 weeks. While at a later stage in the interview the appellant tried to resile from her initially unequivocal statement that she had signed the form, she has not seen fit to appear before the Authority to explain her change of mind. The form is clearly signed by someone other than Mr Warde and in the face of her initial admission that it was her signature we are prepared to accept that the form was signed by the appellant. [39] In view of her taking advantage of a benefit amnesty in 1993 we infer that the appellant was well aware of her obligations to the Department and in particular her obligations to advise the Department if she wasworking. The appellant did not give this advice in relation to New Zealand Superannuation. [40] We have no doubt that the appellant's failure to advise the Department of her employment misled the Department and as a result an overpayment occurred. We are of the view that it was appropriate for the Chief Executive to establish an overpayment against the appellant for half of the amount overpaid. [44] We are then required to consider whether or not the appellant intentionally contributed to the error. We believe that the appellant was aware that she was receiving a half share of New Zealand Superannuation in a Post Bank account up till 1997 and that from 1 April 1997 the full amount of National Superannuation at the married rate was being paid into an account under Mr Warde's control. [45] We think on the balance of probabilities that the appellant knew that she ought to have advised the Department of her employment, that she failed to do so and that she intentionally contributed to the overpayment.Discussion[19] Relevant to the appellant's duty towards the respondent is s80A(1) which provides:80A Duty to advise change of circumstances affecting entitlement to benefit(1) Every beneficiary shall forthwith advise an officer of the Department of any change in circumstances which affects the right of the beneficiary to receive the benefit received by him or which affects the rate of any such benefit.[20] Relevant to the apportionment of benefits between the appellant and Mr Warde so far as New Zealand Superannuation is concerned is s83 which provides:83 Apportionment of benefit between spouses [or partners](1) Subject to subsection (2) of this section, where any person is entitled to a benefit at a rate prescribed in respect of a person who is married or in a civil union, 50 percent of that benefit and any other benefit payable under this Act shall be paid to the person so entitled and 50 percent shall be paid to the spouse or partner or other person who qualifies the beneficiary to be paid at that rate. (2) Subject to section 12(2) of the New Zealand Superannuation and Retirement Income Act 2001, in any case where the chief executive determines that it would not be appropriate for any benefit to be paid asprovided in subsection (1) of this section, the whole of the benefit may be paid to the person entitled to the benefit or the benefit may be allocated in such proportions as the chief executive determines between the beneficiary and the spouse or partner or other person who qualifies the beneficiary to be paid at the rate referred to in subsection (1). (3) In any case where a benefit is apportioned under subsection (1) or subsection (2) of this section, the proportion of the benefit paid to each person shall be deemed for the purposes of the Income Tax Act 2004 to be the income of the person to whom it is paid.[21] Finally, both the issue of overpayment and also the second question in the case stated bring s86 into play which provides:86 Recovery of payments made in excess of authorised rates(1) The chief executive, in order to recover a debt referred to in section 85A, may— (a) bring proceedings in the name of the chief executive; or (b) deduct all or part of that debt from any amount payable to that person by the department as a benefit or a student allowance; or (c) in the case of a debt referred to in section 85A(d), deduct all or part of that debt from any payment of a grant of special assistance under a welfare programme approved under section 124(1)(d). (3) If, in the opinion of the chief executive, the spouse or partner of any beneficiary makes any false statement to or otherwise misleads any officer engaged in the administration of this Act, in relation to his or her income or other personal circumstances, as a result of which the benefit or an instalment of benefit is paid in excess of the amount to which the beneficiary is by law entitled, the amount so paid in excess may be recovered from that spouse or partner as a debt due to the Crown at the suit of the chief executive, or the excess payment may be recovered by way of deduction from any instalments of any benefit or student allowance thereafter becoming payable to that spouse or partner. [22] The distinction between s86(1) and 86(3) assumes some importance in the light of the facts. Section 86(1) applies to the recovery of an excess payment simpliciter. Section 86(3), however, covers situations where an excess payment is "as a result of" the husband or wife of any beneficiary making any false statement or "otherwise" misleading the Department.Decision[23] The first two questions of the case stated relate to the substance of the dispute between the parties and the undoubted fact that an overpayment of New Zealand Superannuation had been made during the lengthy period when the appellant was employed, she thus not meeting the criteria for a non-qualified spouse. [24] The second two questions relate to a possible formal requirement for a burden of proof. It is far from clear to me why these two questions have been posed. [25] Dealing with the questions concerning burden of proof first, the law is tolerably clear. A number of administrative or quasi judicial tribunals established by statute are inquisitorial in their nature. There is no need to list these tribunals, but the Authority is one. [26] Section 12M confers broad powers on the Authority to hear and determine appeals. Section 12M(1) states that subject to s12K(7), (of no applicability here), every appeal shall be by way of rehearing. Section 12M confers broad permissive powers on the Authority to hear and receive evidence. [27] Section 12I sets out the Authority's broad functions, and the powers it can exercise.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 and section 16A of the War Pensions Act 1954. (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.[28] Given the clear statutory function of the Authority and the subject matter of the appeals with which it deals, a rehearing, in my judgment, means just that. The Authority is essentially obliged to consider de novo, on the basis of the materials and evidence before it, the entitlement or non-entitlement as the case may be of a claimant to a benefit or other form of payment under the Act.[29] Given the Authority's functions and obligations it would in my judgment be wrong to impose on the Authority, or indeed on the parties, some procedural requirement that one of the parties carried an obligation to uphold or impugn the administrative decision which an appeal challenges. [30] In a slightly different guise this issue came before Laurenson J in Margison v Chief Executive of the Department of Work and Income (HC Auckland AP141/SW00, 6 August 2001). [31] Laurenson J referred to the inquisitorial nature of the Authority having regard to its s12I functions and the fact that it was a Commission of Inquiry (s12M(6)). He was satisfied that there was no impediment to the Authority reaching a different conclusion on the original exercise of a statutory discretion. [32] His Honour then turned to the issue of an onus:[24] However, whilst it is seemingly the case that the Authority is entitled to come to an entirely different view as to how the original discretion should be exercised, there still remains open the question whether some element of onus rests on an appellant. [25] Clearly if an appellant can demonstrate an error on the part of the chief executive or Benefit Review Authority, then this could determine the success of an appeal to the Authority. [26] That is very different from saying that an appeal can only succeed if the appellant has demonstrated the previous decision was wrong. [27] On an appeal to an Authority I am satisfied that once the Authority is faced with an appeal it is empowered by the inquisitorial nature of its function, its original power of decision, and its full range of remedies, to seek out the issues raised by the appellant's case and determine these afresh and establish whether the appellant can provide the justification for doing so or not.[33] I agree with and endorse Laurenson J's assessment of the inquisitorial nature of the Authority and his refusal to see the Authority's functions operating within the constraints of an onus.[34] His Honour then examined two passages of the Authority's decision before him and concluded that the Authority had rightly considered issues afresh and that there could be no implication an appellant carried an overall onus. [35] Turning to the decision before me, nowhere can I find any suggestion that the Authority approached its assessment of the appeal on the basis that the appellant carried some onus to establish that the prior decision of the Benefit Review Committee was wrong. Certainly there is a reference in para [45] (supra) of the Authority's decision that it considered, on the balance of probabilities, the appellant knew she ought to have advised the Department of her employment. That, however, is a reference to the appropriate civil standard of proof for finding a fact and cannot possibly be construed as a reference to an onus. [36] Thus, for the reasons I have just canvassed, I conclude that no formal burden of proof applies in this case. In any event the Authority did not conduct its hearing on the basis that any such burden of proof was applicable. Questions three and four will thus be answered accordingly. [37] With questions one and two (supra), however, the position is far from clear. [38] Given the evidence before it, and in particular given the history of the pattern of dealings between the appellant and Mr Warde and the appellant's employment history, there was ample evidence to justify a finding that the non-qualifying spouse's component of New Zealand Superannuation ought not to have been paid and thus there was no entitlement to the sum of $10,050.53. But the requirements of ss80A(1) and 86(3) carry with them an obligation first (so far as s80A(1) is concerned) to establish that the appellant, in her capacity as a "beneficiary" failed to advise the Department of a change of circumstances which affected the appellant's right to receive the non-qualified spouse's component. Underpinning that statutory obligation is obviously the factual issue of whether the beneficiary was receiving the relevant payment. [39] Identical considerations ride with s86(1), although the Authority for some reason did not rely on that provision. Any excess payment "so paid" to thebeneficiary may be recovered as a debt due. Certainly, given the pattern of dealings to which I have referred, unsatisfactory aspects of the appellant's August 2000 interview, and other aspects of the evidence before it about which I pass no comment, the Authority was entitled to have grave suspicions about the appellant's behaviour. [40] However, suspicion by itself is not a satisfactory basis on which to make factual findings. I am of the view that the evidence before the Authority might well have justified an inference, that for s86(1) purposes the appellant had received an overpayment. But adverse findings based on inferences was not, as is apparent from the Authority's reasoning process, (supra para [18]), the approach the Authority took. Instead the Authority held that "she was receiving" a half share of New Zealand Superannuation in a Post Bank account (decision para [44] supra). In its case stated the Authority asserts that the Ministry's computer records indicated the appellant's half share was banked "into her bank account". [41] The Authority rejected (decision para [29], supra) Mr Warde's affidavit where he deposed on oath that his application to have the appellant included in his superannuation was made without her knowledge as were subsequent renewals. He importantly deposed that the superannuation payments were made into bank accounts to which he had sole access and the appellant no access. [42] Assuming that Mr Warde's affidavit is true, and it will be perjury if it were not true, the Authority's critical finding that the overpayments were made to the appellant are untenable. The reasons which the Authority gave in para [29] of its decision to attach "little weight" to the affidavit are, with respect, not satisfactory. The relevant interview between Mr Warde and a departmental officer took place in August 2000. The affidavit was sworn approximately two years and three months later. The Authority accepts that, when interviewed in August 2000, Mr Warde had "a good recall of the necessary events". To decline to place weight on the affidavit because the deponent was an elderly man living in a rest home; or because he had had a number of small strokes; or that the Authority had "no knowledge of Mr Warde's present capacity to swear an affidavit"; or that it was unaware of the extent to which the appellant was able to influence him, are not proper grounds for rejectingthe sworn assertions which the deponent made. In the absence of either a direct challenge to Mr Warde, or direct and recent evidence pointing to the affidavit being false, the last of the para [29] reasons advanced by the Authority is sheer speculation. [43] Nor, without revisiting whatever investigative powers the Department may have had, or the nature of the documentary evidence before it, is it a safe finding in the face of Mr Warde's affidavit that because the prefix to a Post Bank account was "11" and because too at her August 2000 interview the appellant accepted the payments were going into a Post Bank account, that this was necessarily the appellant's Post Bank account or an account which she controlled. [44] The Authority's finding (para [44] of its decision) was that the appellant was aware "she was receiving" the one half superannuation component "in the Post Bank account". Elements of ownership and control of the Post Bank account in question are critical, in respect of which Mr Warde's affidavit needed close consideration against the available evidence. [45] For these reasons, therefore, I am not satisfied that the Authority's finding that there had been an overpayment to the appellant is a permissible finding on the basis of the evidence before it. [46] In this situation it is probably not necessary for me to examine whether the Authority had correctly relied on s86(3). I will, however, do so. In that regard Ms Hansen's submission was that the appellant's failure to discharge the s80A(1) obligation of advising the Department of a change in her circumstances constituted "misleading" the Department for the purposes of s86(3). [47] Of course, if, as I have found, there was no evidence safely to conclude that an excess payment had been made to the appellant personally (a critically different concept from clear evidence that New Zealand Superannuation had been paid out in respect of this couple at an excessive rate) then neither s86(1) or s86(3) can come into play.[48] However, I have serious doubts whether a failure, without more, to comply with the s80A(1) obligation can be construed as being tantamount to making a false statement or "otherwise mislead[ing]" a departmental officer for s86(3) purposes. It is clear, on the basis of the Court of Appeal's decision, Nicholson v Department of Social Welfare [1999] 3 NZLR 50 that failure to comply with a s80A(1) obligation is an offence under s127, where proscribed behaviour includes omitting "to do or say anything for the purpose of misleading or attempting to mislead". What is not apparent to me, however, despite the similarity of the statutory words, is whether an omission to comply with the s80A(1) obligation falls into the same category as making a false statement. The s86(3) requirement embodies the positive act of making a full statement and the positive act of otherwise misleading an officer. [49] The Court of Appeal recently revisited its decision in Nicholson in R v Chilton (CA333/04, 1 December 2005). In that case two beneficiaries appealed their convictions under s127 of the Act. The Court of Appeal upheld its earlier decision inNicholson and, in accordance with that case, the Court accepted that there was no legal duty or obligation on either of the appellants to inform the Social Welfare Department of information that would affect the benefit entitlement of their respective partner. The Court stressed that there was a "general aversion of the law to criminalising omissions" (at [41]) and that it would not depart from the "fundamental principle that an omission cannot be operative at law unless there is a corresponding duty to act" (at [56]). [50] If such restraint in the imposition of penalties for omissions is exercised in the criminal sphere, a similar restraint should apply to the imposition of a financial penalty for an omission in the civil context. While the facts of Chilton differ from the current situation, where the appellant is directly accountable to the respondent for her failure to advise the respondent of her change of circumstances under s80A(1), the decision provides valuable guidance in the application of s86(3). [51] Section 80A(1) casts a statutory duty on beneficiaries forthwith to advise an officer of any change in circumstances. Section 127, which creates an offence, proscribes, as I have said, an omission to carry out that duty. The linkage in s86(3)of the positive act of making a false statement with "misleading" makes it difficult, in my judgment, to incorporate an omission into s86(3). [52] I thus, as a matter of interpretation, reject the submission that, for s86(3) purposes an omission to advise a change of circumstances under s80A(1) constitutes misleading an officer for s86(3) purposes. [53] Although the Authority (in para [40] supra of its decision) stated that it had "no doubt" the appellant's failure to advise the Department of her employment misled the Department for s86(3) purposes, it is not apparent from the face of the Authority's decision that it was interpreting s86(3) in the manner I have outlined. Significantly, I have been unable to find any authority which suggests that s86(3) or analogous provisions should be interpreted in such a fashion that an omission constitutes "misleading", or importantly that a breach of s80A(1) constitutes "misleading" for s86(3) purposes. Certainly counsel have not cited any such authority to me. [54] For these reasons it follows that the Authority did not correctly apply s86(3).Result[55] The Court's answers to the four questions posed in the case stated on appeal (supra para [2]) are thus:Question 1 No Question 2 Yes Question 3 No Question 4 Not applicable.[56] In terms of s12Q and r725(b) of the High Court Rules the matter is remitted back to the Social Security Appeal Authority for reconsideration and determination in accordance with the answers given to the questions stated in the case on appeal.Costs[57] I am unclear whether costs are sought. The appropriate scale in my view would be 2B. [58] Leave is reserved to counsel to apply by way of memoranda if costs are an issue and cannot be resolved. Priestley J Delivered at 11 am on the 5th day of April 2006