FOSTER V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC CIV 2008-485-2395

FOSTER V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC CIV 2008- 485-2395 6 July 2009IN THE HIGH COURT OF NEW ZEALAND CIV 2008-485-2395BETWEEN GRAHAM FOSTER Appellant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Counsel: Appellant in person L M Fong & T I Hallett-Hook for Respondent Judgment: 6 July 2009JUDGMENT OF KEANE J (Re application for leave to appeal to Court of Appeal)This judgment was delivered by Justice Keane on 6 July 2009 at 2pm pursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy Registrar Date:Solicitors: Crown Law Office, Wellington Copy to Graham Foster, 17 Tuakura Way, Manurewa, Auckland[1] On 6 August 2007, Graham Foster, a sickness beneficiary, also entitled to an invalid's benefit, applied for assistance to purchase shoes and a pullover costing $189.90. He sought a non-recoverable grant. He said he had exhausted every avenue. His need for clothing was due to wear and tear and the cold weather. He was granted a recoverable advance of his benefit to be repaid at the rate of $3 weekly. [2] That decision was confirmed on an internal review and by a Benefits Review Committee. It was upheld by the Social Security Appeal Authority, on an appeal under s 12J of the Social Security Act 1964. On his appeal to this Court against that last decision, dated 20 June 2008, the question of law arising was whether the Authority had erred in law in deciding that the assistance given should have been, as it was, by recoverable advance as opposed to non-recoverable special needs grant. [3] In my decision, dated 19 March 2009, I held that the Authority had made no error. The Chief Executive, whose decision the Authority confirmed, would have had to conclude that not making a grant would have worsened Mr Foster's position or increased any risk to his life or welfare; and been satisfied that Mr Foster's claim involved 'special circumstances' and that if the grant were not made he would suffer 'serious hardship'. [4] As I then said, on the application Mr Foster had made for assistance, none of these conclusions were open. Wear and tear is not a 'special circumstance', it is an ordinary fact of life. The advance of benefit made calling for repayment at the rate of $3 per week, the usual form of assistance offered, which the officer adopted, had to answer any possibility of 'serious hardship'. The decision made involved no error. Neither did that of the Authority upholding it. [5] On 15 May 2009 Mr Foster applied for leave to appeal my decision to the Court of Appeal. He sought also an extension of time within which to make that application. He was 36 days of out time. His application should have been filed by 9 April 2009.[6] The Chief Executive opposes time being extended and leave being granted, contending that Mr Foster has not explained his failure to bring the application within time and that his application for leave is without merit.Enlargement of time[7] Section 144(2) of the Summary Proceedings Act 1957, which s 12R of the Social Security Act 1964 deems to apply, requires that any application for leave to appeal to the Court of Appeal be filed 'within 21 days after the determination of the High Court, or within such further time as that Court may allow'; and that poses the first issue. [8] Mr Foster does have an explanation as to why he filed late. Under s 12R his application was to be filed by 9 April 2009. Instead on 16 April 2009 he lodged his appeal directly with the Court of Appeal; and he served it on the Chief Executive on 20 April 2009. It was only then that Mr Foster learned that he ought first to have sought leave from this Court. He had obtained a precedent from the Registry which unfortunately is appropriate only where there is a right of appeal without leave. He filed his present application on 15 May 2009. [9] Mr Foster is, I accept, at the disadvantage that he has had to act without legal advice and that he is a beneficiary. Against those realities any delay on his part can, I consider, be excused and I enlarge the time within which he was able to apply to the date on which he did apply. The issue is rather whether his application itself passes the threshold s 144(2) imposes.Leave threshold[10] Leave to appeal to the Court of Appeal can only be granted if, in the opinion of this Court: the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[11] Speaking of s 144(2), the Court of Appeal said in Nottingham v T (CA 216/00, 26 March 2001):It is well settled that s 144 is not intended to provide a second-tier of appeal The stringent requirements of s 144 must be satisfied and neither the determination of what comprises a question of law nor the question of whether that point of law raises a question of general or public importance is to be diluted.[12] In his application Mr Foster's first complaint is that I did not, in interpreting the word 'emergency', as used in the Special Needs Grant Program, identify the 'true causal factors'. [13] Mr Foster does not, and did not at the hearing, supply any meaning for the word 'emergency' that differed from its given meaning, to which the Authority had adhered and which I held involved no error. He does not then appear to advance an error of law in that sense. Rather, it seems, his complaint is that I failed to recognise or evaluate the evidence demonstrating an emergency. He wishes the Court of Appeal to rehear all the evidence he offered on the appeal, much in the form of submissions; and:in so doing to divorce itself from aspects of austere tabulated legalism and the alleged efficacy of structural functionalism by identifying more with true social, provable realities.[14] To the extent that I understand this ground, Mr Foster contends that I was wrong not to take literally the imbalance in his weekly budget, in this compounding the error he attributes to the Authority and those who made the preceding administrative decisions. [15] In a submission that he has filed more recently Mr Foster goes further. He advances a more radical proposition that figured on the appeal itself:Correctly analysed, properly read and understood, the appellant's application for non-recoverable assistance was based on an inability to afford a basic life necessity. It matters not one jot what the reason for that item was [given that it was considered necessary] but it does matter, in a legal and moral context, what the cause for non-payment was.And again:Wear and tear may be considered a normalised human experience and it is. But, what sets this case apart, as portrayed, but ignored, in the evidence is the inability to recover or rectify this outcome which was the reason for the application for non-recoverable assistance made on a causal factor of poverty. The appellant's budget confirms this to be the case[16] Mr Foster's underlying complaint, as I understand it, is that the level of benefit he receives, and thus the level of benefit that every beneficiary receives, is not enough to live on; and so the fact that he lacked the means to purchase his pullover and shoes was always predictable. His budget spoke for itself. He ought not to have had to prove any more sudden crisis. A non-recoverable grant ought to have been his by right.Conclusions[17] Mr Foster seeks to take the issues that concern him to the Court of Appeal because he considers them, and I accept very sincerely, to be of significance to all beneficiaries. But to obtain leave to appeal to the Court of Appeal Mr Foster must advance a point of law susceptible of appeal that ought to be considered by that Court and I do not consider that he is able to do so. [18] Mr Foster's underlying complaint as to the inadequacy of his benefit is not justiciable, as I am sure he recognises. It is not the function of this Court on appeal from the Social Security Appeal Authority to review the adequacy of benefits. This Court's function is to decide any issue of law arising, set against the Social Security Act 1964 and the Ministerial schemes promulgated under it. [19] Nor does Mr Foster raise any point of construction, or fact for that matter, which extends beyond his case. The questions he poses in those two senses are not of sufficient public or general importance to warrant a grant of leave. Nor does he advance any that is of such significance to him that he ought to have leave. The grant Mr Foster was denied amounts to less than half his weekly benefit. The advance that he received had only to be repaid at the rate of $3 per week, which when set against his benefit cannot be regarded as onerous.[20] There is also this to consider. The issues that Mr Foster wishes to take to the Court of Appeal were reviewed administratively twice before reaching the Social Security Appeal Authority, and they have been reviewed on appeal in this Court. There must be an end to that process. [21] I decline Mr Foster's application for leave to appeal to the Court of Appeal. If he wishes to seek the leave of the Court of Appeal itself he must under s 144(3) apply to that Court for special leave according to its Rules within 21 days of the date of the issue of this decision. _____________ P.J. Keane J