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

FOSTER V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2008-485-2395 19 March 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-485-2395BETWEEN GRAHAM FOSTER Plaintiff AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 25 February 2009 Appearances: Plaintiff in person S V McKechnie for Respondent Judgment: 19 March 2009JUDGMENT OF KEANE JThis judgment was delivered by Justice Keane on 19 March 2009 at 9am 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 this appeal against that last decision, dated 20 June 2008, the question of law arising is whether the Authority 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.Claim and grant[3] Mr Foster is a 62 year old man without dependent children. He was granted a sickness benefit in 2004 and an invalid's benefit in 2007. His benefits weekly total $374. In August 2007 he applied for assistance to purchase clothing, shoes costing $139.95 and a pullover costing $49.95. He said that he needed these items as a result of normal wear and tear and because of the cold weather. He sought a non-recoverable grant. He was granted an advance on his benefit to be repaid at the rate of $3 weekly. [4] On 25 September 2007 Mr Foster sought a review. The decision had not been informed by any sense, he said, of the 'exacerbating effects of poverty'. Or the 'destabilising effect' that 'poor policy' can create of 'stigma and alienation'. His principal complaint was that the decision had been taken according to Ministerial guidelines as if they allowed no discretion. He should have been allowed a lump sum non-recoverable advance. [5] There was first an internal review, on 12 October 2007, and then a review by a Benefits Review Committee, on 20 November 2007, at which Mr Foster was present. In its decision, dated 5 December 2007, the Committee upheld the decision to assist Mr Foster by advance of benefit under s 82(6) of the Social Security Act1964, and not by emergency grant under cl 14.1 of the Special Needs Grants Program. Mr Foster appealed that decision on 12 December 2007, contending in a later email that it was 'morally, intellectually, socially and legally incorrect'. [6] Mr Foster's appeal was set down for hearing before the Authority on 12 March 2008. That hearing did not proceed. Mr Foster requested the Authority beforehand to summons the Minister, the Chief Executive, and a manager and assistant manager. An assistant manager did attend. On the day, the Authority says, Mr Foster said that he did not then wish to proceed. The Authority directed that the appeal be decided on the papers; an ability it has under s 12K(7) of the 1964 Act. [7] On 20 June 2008, the Authority found, Mr Foster's need arose from ordinary wear and tear to which there was limited ability to respond by grant. The Special Needs Grant Program did not cater for clothing. Mr Foster had to show an emergency under cls 12.1 and 14.1. An emergency, according to the Concise Oxford Dictionary, is 'a serious, unexpected and potentially dangerous situation requiring immediate action'. He had also to come within cl 12.2. [8] Had Mr Foster's clothing been destroyed in a fire, flood or other disaster or stolen, the Authority found, then there might have been an emergency. Because Mr Foster's need arose out of ordinary wear and tear, however, he could have saved for the clothing. His budget showing a deficit without allowance for clothing, the Authority considered, was not to be taken literally. His budget was tight but not so tight as to prevent him saving. [9] The only other basis on which a non-recoverable grant might have been made, the Authority said, was by way of lump sum special benefit. That too was unjustified. The original decision taken administratively, to grant Mr Foster an advance of his benefit to be repaid at a small sum weekly, the Authority held, was correct.Appeal in point of law[10] Under s 12Q of the 1964 Act an appeal to this Court is confined to error oflaw; and as the Supreme Court said recently in Bryson v Three Foot Six Ltd [2005] 3 NZLR 721, 733, at paras [20], [24], that, classically, can be an error of construction whether of a statute or a contract; and thus in this case, by parity of reasoning, a program promulgated by a Minister under a statutory power. It can extend, the Court said at para [26], to a conclusion that so lacks support in the evidence as to be untenable. [11] An error cannot be said to arise, the Court said at para [25], whereAn appeal cannot be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.A recent instance is Taylor v Chief Executive of the Department of Work and Income[2005] NZAR 371, McKenzie J. [12] The single issue to be decided on this appeal is, as the Authority stated in its case on appeal, whether it erred in concluding that Mr Foster was not entitled to an emergency non-recoverable grant and only entitled to an advance of benefit. Mr Foster would have preferred a much larger canvas. He wished to put in issue the whole tendency of social policy since the 1972 report of the Royal Commission on Social Security, which he considers to have been retrograde. Also the level at which benefits are set and how they are granted. Also the stigma and alienation that beneficiaries suffer. He had felt that stigma, he said, on the reviews and appeal concerning this present issue. He raised the possibility that on the appeal he might have suffered from bias. [13] Mr Foster is an instinctive pamphleteer and that complicated his submissions on this appeal, as it did those he made to the Authority. At its most heightened his submission had this characteristic timbre:One of the mantras of the State can be seen in the trumpeting, in the often patronising, recitals about the social advantages of being in work, or, in MSD-WINZ parlance having 'a job'. No mention here of course about the need for work to be meaningful, rewarding and well paid. However, theCourt needs to be disabused of any notion that the Appellant considers life on a poxy benefit to provide any sort of orgasmic pleasure, metaphorically speaking of course. Take it as gospel that it is far from easy to extricate oneself, at age 63, from this oppressive, stigmatised position, that according to experts (the EEO office) is due, in more than large part, to NZ's neo-liberal/conservative socio-cultural attitudes and business environment in which the perceived talents of the under 30s with their attendant autistic-like worship of technology, glorification of youth and celebration of the cleavage and mini skirt come at the expense of the more mature and frequently better educated. New Zealand is an ageist society.[14] When I canvassed such passages as these with Mr Foster, and this was the most fervid, he candidly accepted that they had no real place on his appeal. They sprang, he said, not just from the strength of his convictions but also from his present predicament.Statutory alternatives[15] The decision taken to advance Mr Foster $189.90 from his benefit, was made under s 82, which governs the payment of benefits; and subs (6) of which allows for the making of an advance:If the Chief Executive is satisfied that an advance payment of a benefit would best meet the immediate needs of a beneficiary, the Chief Executive may, in the Chief Executive's discretion, on application by the beneficiary, make payment in advance of any number of instalments of the benefit, or part of it, not yet due, and the amount so paid in advance may be recovered under s 86(1).[16] The exercise of that discretion is subject to an extended direction made by the Minister, under s 5, dated 25 May 1999, with which the Chief Executive is bound to comply. Evidently Mr Foster was thought to have a particular immediate need justifying the advance on his benefit. As to that there is no issue. What is in issue is whether Mr Foster was entitled to a non-recoverable grant under the Special Needs Grant Program, promulgated by the Minister, under s 124(1)(d), on 18 December 1998, with which once again the Chief Executive is bound to comply. [17] Amongst the categories of need that this program caters for are those arising in emergency situations: cl 2(a)(ii). An explicit objective is that 'any financial assistance given remains within the limits and for the reasons prescribed': cl 2(d). Indeciding whether assistance should be given in the ways allowed the Chief Executive must, under cl 5(a), consider whether the need could be met by the applicant directly or indirectly. The Chief Executive may under cl 5(b) take into account that the applicant might have, in some way, brought about the need. [18] Part 2 sets a universal threshold that is not in issue. Part 3 caters for such immediate and essential needs as food, medical treatment and related needs, and bedding. Clothing is not amongst them. To obtain a non-recoverable grant, as he accepts, Mr Foster had to come within Part 4, which caters for emergency needs and for which cl 12.1 sets the threshold. It states 'grants under this Part may be made only if the Chief Executive is satisfied that an emergency situation exists, which has given rise to an immediate need'. [19] Clause 12.2 then requires the Chief Executive to assess whether there is an emergency situation against a series of criteria:In deciding if an emergency situation exists the Chief Executive must have regard to the following matters – (a) whether the situation was unforeseen; (b) if the situation could have been foreseen or predicted whether the appellant could have been expected to make provision in advance to meet the need; (c) the extent to which not making a grant would – (i) worsen the applicant's position; or (ii) increase or create any risk to the life or welfare of the applicant; (d) serious hardship to the applicant.[20] A need for clothing is not deemed to be an emergency need in the sense that dental and medical treatment and related expenses are deemed to be capable of being by cl 13. To obtain a non-recoverable grant, as he himself accepts, Mr Foster had to come within cl 14 which governs other emergency grants and cl 14.1 confers the critical discretion:If the Chief Executive considers that special circumstances exist, the Chief Executive may make a recoverable or non-recoverable grant of not morethan $200 towards the cost of any item or any service if the Chief Executive considers that without that item or service, the applicant would suffer serious hardship.[21] Only after the Chief Executive is satisfied as to the need for a grant under cl 14.1 can the decision whether it ought to be recoverable or non-recoverable be made; and that is governed by cl 14.3, which says this:In deciding whether a grant made under cl 14.1 will be recoverable or non-recoverable, the Chief Executive must have regard to the following matters – (a) the purpose of the grant; (b) the nature of the need; (c) whether it would be equitable with other applicants to require or not to require repayment; and (d) the effect on the applicant of requiring or not requiring repayment of the grant.Possibilities of error[22] The Authority made no error of law, when it held that to obtain a non-recoverable grant Mr Foster had to show an 'emergency situation' under cl 12. He himself accepts this. Nor did it make any error when it gave the word 'emergency' its ordinary dictionary meaning. 'Emergency' is not as such defined and cl 12.2, the first focus of which is whether any need could have been anticipated and provided for is fully consistent with the ordinary meaning. So too, indirectly, are the related factors going to hardship. [23] The Authority made no error in holding that on the application made, there was no semblance of emergency in the sense that Mr Foster's need was sudden and unforeseeable. He relied on ordinary wear and tear. What was critical was whether Mr Foster could have saved for the clothing and shoes. In his submission to the Authority he denied that he could have. He said 'Was the immediate need predictable? Absolutely. Could this have been provided for by some type of intervention beforehand? Absolutely not.'[24] Mr Foster annexed to his submission to the Authority a budget offsetting against his benefit weekly, $377, $426.98 expenditure, leaving a shortfall of $49.98; and this without any allowance for clothing or shoes. The Authority was unconvinced and questioned first his allowance for food:The allowance for food in the budget is $87.13 per week. The Otago University Food Costs Survey as at March 2008 assesses the cost of a balanced diet for a man in the Auckland area to be $54 for a basic diet, $70 for a moderate diet and $84 for a liberal diet. This does not include an allowance for non-food items. The survey gives a basic cost for non-food items for a family of two adults and two children as $16 per week but does not give a cost for one person. A reasonable allowance for one person for non-food items the costs claimed would appear to be $5 per week.[25] The Authority was equally questioning about other items of Mr Foster's weekly expenditure:We are surprised to note that the appellant spends $30 per week on communication, apparently for cellphone, internet and fixed line charges. This seems particularly high for someone sharing accommodation. The appellant has not explained what his need for a cellphone might be. An allowance of $15 per week ought to be sufficient for telecommunications. We also have questions about the appellant's allowance for transport, optometrist and newspaper. It is surprising that the appellant can afford to buy the Listener and pay for an internet connection but cannot budget for clothing.[26] This led the Authority to conclude that there was no deficiency of $49.98 and that Mr Foster's budget, while tight, would not have precluded him from saving for the two items; and thus that there was no 'emergency situation'. But that conclusion suffered this difficulty. It was founded on questions that Mr Foster's unadorned budget could not answer. It was founded also on a survey made by Otago University. Arguably, there too, the Authority should have allowed Mr Foster an opportunity to respond, just as it would have had to do under s 12K(6) had it obtained a further report from the Chief Executive. [27] On this appeal, relying on a letter from the Associate Professor of Human Nutrition, Otago University, who is responsible for the survey, Mr Foster contends that the Authority misunderstood or misapplied it. The survey assumes that food is purchased from supermarkets. Food from other outlets usually costs more. It does not allow for pre-prepared food. It provides for ingredients. It recognises that thecost of fresh fruit and vegetables varies with the season and can be greater in spring. The caveats the Associate Professor enters are these:Any persons who could not readily access a supermarket for all their food requirements would have additional costs. It is not realistic for all persons to prepare all foods from scratch. This requires a high level of food preparation skills and this is the reason that the moderate and liberal levels are presented.[28] Mr Foster defends his use of a cellphone. He obtains the least expensive pre-paid charge, $20 per fortnight. He uses his cellphone mostly to text. It is the least expensive way of maintaining social contact. He accepts that he should not have included in his budget a landline charge of $10. That was included twice. Also that his third share of the cost of a landline and broadband is $7.10 per week not $10. His total weekly expenditure for communication is $17.10, not $30. [29] Mr Foster defends the sum he pays his optometrist weekly, $16. In a letter, dated 13 June 2006, that the Department may indeed have been given at the time, his optometrist confirmed that he is anisometropic. His right eye is myopic with astigmatism. His left eye is hypermetropic with astigmatism. To achieve binocular vision he requires contact lenses. The then annual cost was $696, $13.38 weekly. The total cost to him, $16 per each week, is attributable in part also to eye solutions and medication for glaucoma. [30] His transport costs, $41, Mr Foster says, result from the fact that he lives in Manurewa, four kilometres from the rail head, and must travel to Auckland perhaps three times weekly for various needs. He purchases the New Zealand Herald to check the situations vacant; at age 63 he has applied for 107 jobs over four years. The New Zealand Listener, he accepts, might be thought excessive. His claim weekly is also overstated. He purchases it monthly. As against that, he did not list other items. His weekly deficit is $35. [31] If the Authority's decision to uphold the original decision, made administratively, had rested solely on its analysis of Mr Foster's budget it might well be infirm, even as a matter of law. But cl 12 also put in issue whether not making a grant would have worsened Mr Foster's position, or have increased any risk to life or welfare, or caused serious hardship; and cl 14.1 made such considerations as thesemandatory. The Chief Executive would have had to be satisfied under cl 14.1 that Mr Foster's claim involved 'special circumstances'; and that if a grant were not made Mr Foster would suffer 'serious hardship'. [32] On the application made the officer, who decided it on delegated authority, could not have reached either conclusion. Wear and tear is not a 'special circumstance', it is an ordinary fact of life. An advance of benefit calling only 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'. That decision involved no error. Neither did that of the Authority upholding it.Conclusion[33] To the question posed by the Authority, whether it erred in law in holding that the assistance accorded to Mr Foster to purchase the pullover and shoes was rightly by way of recoverable advance of benefit as opposed to a non-recoverable special needs grant, the answer has to be 'no'. The appeal will be declined. _____________ P.J. Keane J