CLARKSON V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV-2010-485-519

CLARKSON V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV- 2010-485-519 28 July 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2010-485-519IN THE MATTER OF an application by way of case stated from the determination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security Act 1964 BETWEEN HARRY MURRAY CLARKSON Appellant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 15 July 2010 Counsel: A Hart for Appellant A J Williams and T H I Hallett-Hook for Respondent Judgment: 28 July 2010 at 4.30pmRESERVED JUDGMENT OF MACKENZIE JI direct the Registrar to endorse this judgment with a delivery time of 4.30pm on the 28th day of July 2010.Introduction[1] This is an appeal by way of case stated by the Social Security Appeal Authority (the Authority), pursuant to s 12Q of the Social Security Act 1964, from a decision of the Authority upholding a decision of the respondent, declining to grant New Zealand superannuation to the appellant, Mr Clarkson, on the basis that he was not ordinarily resident in New Zealand on the date of his application. The following questions of law have been stated by the Authority:(i) Did the Authority err in law in its interpretation of the meaning of"ordinarily resident in New Zealand" under s 8 of the Superannuation and Retirement Income Act 2001? (ii) Did the Authority err in law by taking into account irrelevant considerations by taking into account any of the findings of fact contained in paragraphs [16] and [17] of its determination? (iii) As a matter of law was there any evidence on which the Authority was entitled to conclude that at the point the appellant applied for New Zealand Superannuation he had no plans to return to New Zealand in the near future and that it was his intention to reside in South Africa for the foreseeable future?[2] Sections 7(1) and 8 of the New Zealand Superannuation and Retirement Income Act 2001 (the Act) provide:Age qualification for New Zealand superannuationEvery person is entitled to receive New Zealand superannuation who attains the age of 65 years.Residential qualification for New Zealand superannuationNo person is entitled to New Zealand superannuation unless the person— (a) is ordinarily resident in New Zealand on the date of application for New Zealand superannuation; and (b) has been both resident and present in New Zealand for a period or periods aggregating not less than 10 years since attaining the age of 20 years; and (c) has also been both resident and present in New Zealand for a period or periods aggregating not less than 5 years since attaining the age of 50 years.Background[3] Mr Clarkson was born and lived for most of his life in South Africa. He and his wife immigrated to New Zealand in September 1995. They obtained New Zealand citizenship in 2000. His wife became eligible to receive New Zealand superannuation on reaching 65 years of age in September 2005. Mr Clarkson, then aged under 65, was not himself eligible but was in receipt of New Zealand superannuation as a non qualified spouse. Mr Clarkson and his wife left New Zealand in August 2006 to travel to South Africa, intending to return on 17 February 2007. Mr Clarkson's wife returned to New Zealand as planned on17 February 2007. She advised her case manager in the Ministry that she had filed for divorce in South Africa, and that her husband was not returning to New Zealand as he was not capable of returning at that stage. As a result, he was excluded from his wife's New Zealand superannuation with effect from 13 February 2007. Inquiries were made on Mr Clarkson's behalf as to what assistance might be available. A letter from his nephew in July 2007 advised that the appellant was still in South Africa, he had suffered a relapse at the beginning of 2007 from acute depression (from which he had suffered for a number of years) after personal trauma, namely a divorce and other personal matters. He had been admitted to a State psychological treatment facility where he still was. His nephew expressed the view that it would be better for him to stay in South Africa for some time after his discharge as he would be alone in New Zealand should he return and he needed ongoing treatment for his condition. Returning alone to New Zealand would exacerbate his condition. In reply, he was advised that in order to be eligible for New Zealand superannuation the appellant must be of the age to receive New Zealand superannuation, be ordinarily resident in New Zealand at the date of the application, and have met other residence restrictions. [4] There were further ongoing inquiries from Mr Clarkson. In November 2007 he was again advised of the requirements to be entitled to New Zealand superannuation, in the same terms as advised in July. A form of New Zealand application for payment overseas was sent with that letter. In February 2008, in anticipation of his attaining 65 years on 15 March 2008, Mr Clarkson completed an application on the form which had been provided to him. By letter dated 1 May 2008, he was again advised of the requirements of eligibility to New Zealand superannuation, in the same terms as had previously been advised in July and November 2007. The application for payment of New Zealand superannuation in South Africa was declined because he was not receiving or entitled to receive New Zealand superannuation and was not ordinarily resident in New Zealand when the application for payment overseas was made. Mr Clarkson sought a reconsideration of the decision. There was an internal review, followed by consideration of the case by a Benefits Review Committee on 27 November 2008. The Committee held thatthe Ministry's decision to decline the application for New Zealand superannuation was correct. It said: 1The applicant completed an application for New Zealand Superannuation paid overseas on 11 February 2008. At this time he was not ordinarily resident in New Zealand as he had left New Zealand in 2006. He was also not quite 65 years of age at this time. His application for domestic New Zealand Superannuation was declined due to not meeting the ordinarily resident requirement. Without entitlement to domestic payment it is not possible to apply for portable payment of New Zealand Superannuation.The Authority's decision[5] Following that decision, Mr Clarkson appealed to the Authority. The Authority described the respective cases for the appellant and the Ministry in these terms: 2In summary it was submitted on behalf of the appellant that when he left New Zealand he did so intending to return to New Zealand. While in South Africa the appellant's wife advised him that she wished to separate from him. This caused the appellant to collapse mentally and he became generally unable to cope with life. A number of reports indicate that he was admitted to hospital for a period for a major depressive disorder. He continues to receive psychotherapy and pharmacotherapy and is a patient of the Randfontein Mental Health Community Clinic. He lives with his brother. He does not own property in New Zealand but retains a New Zealand bank account into which one of his South African pensions is paid. At the time the appellant and his wife left for South Africa they did not retain accommodation in New Zealand. He had however intended to return. On behalf of the Chief Executive it is submitted that whilst the appellant has now attained the age of 65 years and has lived in New Zealand for a total of 10 years since attaining the age of 20 and five years since attaining the age of 50 he does not meet the criteria of s 8 of the Social Security Act 1964 that he be ordinarily resident in New Zealand at the time of his application.[6] The Authority then set out the residential qualifications for New Zealand superannuation in s 8. It noted a requirement that the applicant be ordinarily resident in New Zealand on the date of application. It noted the consideration of the term "ordinary residence" in R v London Borough of Barnet ex parte Shah and Another,31 Re Clarkson Report of the Benefits Review Committee, 27 November 2008.2 Re Clarkson SSA008/09, 12 May 2009 at [09] and [10].3 R v London Borough of Barnet ex parte Shah and Another [1980] 3 All ER 679.and of the term "ordinarily resident" in Wilson v Social Security Commission.4 The Authority's findings were expressed in these terms: 5[15] The appellant was born and has lived the majority of his life in South Africa. We accept that at the time that he and his wife returned to South Africa in August 2006 he did so with the intention of returning to New Zealand. We also accept that the appellant's failure to return to New Zealand stems largely from a breakdown in the appellant's mental health, something beyond his control and that he has been advised by doctors to remain in South Africa in the meantime. [16] We endeavoured to explore with the appellant's representative what links the appellant might have with New Zealand that might draw him back to New Zealand. It appears however that the appellant has no family in New Zealand apart from his former wife, he has no property in New Zealand and indeed at the time that he and his wife left New Zealand they had relinquished their rental accommodation. At best it seems the appellant may have a bank account in New Zealand into which funds are being paid to repay a student loan. [17] At the point that the appellant applied for New Zealand Superannuation he had not lived in New Zealand for some 18 months. He had returned to his country of birth and where he had in fact lived until 54 years of age. He lives with his family in South Africa. Despite being given advice that if he returned to New Zealand financial assistance would be available to him he has not done so. Moreover the appellant continues to reside in South Africa and has now been there for approximately two years and nine months. He has not suggested that he now has any plans to return to New Zealand. [18] We think it reasonable to infer that at the point the appellant applied for New Zealand Superannuation he had no plans to return to New Zealand in the near future and that it was his intention to continue to reside in South Africa for the foreseeable future. In those circumstances we are not satisfied that the appellant was ordinarily resident in New Zealand at the time of his application for New Zealand Superannuation. He was not therefore eligible for New Zealand superannuation and the Chief Executive was correct in declining his application.The respective submissions[7] Ms Hart submits that a correct interpretation of the legislation, together with a correct application of Wilson, would have resulted in Mr Clarkson's application4 Wilson v Social Security Commission [1988] 7 NZAR 361.5 Re Clarkson SSA008/09, 12 May 2009.succeeding. She submits that the Act makes provision for qualified New Zealand residents in some circumstances to begin receiving New Zealand superannuation while overseas, despite being absent from New Zealand at the time they became eligible. She refers to ss 21, 22, 25 and 27 of the Act. She submits that ss 22 and 25 applied in this case. She submits that essentially the only reason the application was declined was that Mr Clarkson was living in South Africa at the time of his application and this was a simplistic and erroneous interpretation of the legislation which overlooked ss 22, 25 and 27. Counsel further submits that Mr Clarkson was incorrectly advised by the Ministry, when he was sent the wrong application form, and that he was given conflicting advice as to what might be the consequences if he were to return to New Zealand. [8] Counsel further submits that the Authority, in relying on Wilson, overlooked that Mr Clarkson's continued presence in South Africa was a medical necessity; thatWilson had recognised that a person who is overseas undergoing treatment may be ordinarily resident in New Zealand; and that had the Authority correctly appliedWilson it would have found that the justified purpose for Mr Clarkson's absence from New Zealand remained at the time of his application and he was therefore ordinarily resident in New Zealand. [9] Mr Hallett-Hook, who presented the submissions for the respondent, submits that the appeal is limited to questions of law, and that an error of law must be demonstrated. He submits that the appeal, in challenging the Authority's approach to the purpose of Mr Clarkson's absence from New Zealand, is in essence a challenge to the Authority's finding of fact rather than an error of law. He submits that there is nothing in the Authority's decision to suggest that it misdirected itself on the meaning of "ordinarily resident in New Zealand" in s 8. [10] Counsel further submits that no irrelevant considerations are identified in the appeal, and that all of the factors relied on by the Authority were matters which it was permissible for it to consider. Counsel further submits that there was evidence on which the Authority was entitled to conclude that the appellant had no plans to return to New Zealand and that it was his intention to reside in South Africa for the foreseeable future.Discussion (a) General comments[11] It is desirable, before turning to the specific questions in the case stated, to address the nub of the appellant's concerns at a more general level. [12] The essential requirements of eligibility for New Zealand superannuation are that the person must have attained 65, be ordinarily resident in New Zealand on the date of application, and have met the requisite length of residence criteria. For Mr Clarkson, the essential question is whether he was ordinarily resident in New Zealand when he applied for New Zealand superannuation on turning 65. That is exactly the question on which the Authority was focussed. It is also the question which was addressed at the earlier stages within the Ministry. The fact that Mr Clarkson had been sent to the wrong form was unfortunate, but has not led to an incorrect focus. At all stages, there has been a recognition that any question of eligibility for payment overseas was dependent on qualification for New Zealand superannuation. [13] The requirement that Mr Clarkson be ordinarily resident in New Zealand when he turned 65 is not obviated by reference to ss 21, 22, 25 and 27. All of those provisions depend upon the person being otherwise entitled to New Zealand superannuation. That requires meeting the ordinary residence test in s 8. Whether Mr Clarkson was ordinarily resident in New Zealand at the time of his application is to be determined having regard to his situation at that time. It is his intention at that time which is determinative, not his intention at the time he left New Zealand. His intention at that earlier time is relevant only to the extent that it casts light on his intention at the later time. It was not sufficient for the appellant to establish that his ordinary residence in New Zealand was not terminated by his intended temporary departure, nor that his return at the intended time may have been prevented by medical circumstances beyond his control. The question whether he was, at a considerably later date, ordinarily resident in New Zealand required an examination of the relevant circumstances at that later date. That is clearly the way in which theAuthority considered the case. Its conclusion on that question involved findings of fact with which this Court cannot interfere on an appeal on a question of law. The conclusion was plainly open to it on the evidence.(b) The specific questions[14] With these general comments I can deal quite briefly with the three questions posed in the case stated. [15] The first question is whether the Authority erred in law in its interpretation of the term "ordinarily resident in New Zealand". As Tompkins J noted inWilson v Social Security Commission, 6 and as I have discussed above, whether a person is "ordinarily resident in New Zealand" may well be a simple question of fact. Here, the Authority discussed the meaning of the phrase in terms which do not indicate any error of law. The Authority's decision that, on the facts, the appellant did not fall within the meaning of that phrase was a decision of fact which does not fall within the scope of s 12Q of the Social Security Act. I answer question 1 no. [16] As to question 2, I consider that the considerations and the findings of fact, taken into account in the passage cited at [6], were all facts and considerations which were relevant to the question which the Authority was required to address, namely whether the appellant was ordinarily resident in New Zealand. The reasons why the appellant had not returned to New Zealand were considered by the Appeal Authority. The submissions of counsel for the appellant place considerable emphasis on the appellant's intentions at the time he left New Zealand. That is not the appropriate focus. The appropriate focus, in considering his intention as a relevant aspect of the determination as to whether or not he was ordinarily resident in New Zealand, must be his intention at the time that the ordinary residence qualification must be met, namely the date of application, on attaining 65 years. Accordingly, I answer question 2 no.6 Wilson v Social Security Commission [1988] 7 NZAR 361.[17] On question 3, there was sufficient evidence to support the Authority's conclusion. This is not a case where an error of law may arise from the absence of evidence to support a factual finding. Accordingly I answer question 3 yes. [18] Costs are reserved. If necessary, the parties may submit memoranda."A D MacKenzie J"Solicitors: Parnell Law, Auckland for Appellant Crown Law, Wellington for Respondent