PATEL V MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV-2008-485-1124

PATEL V MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV-2008-485-1124 1 October 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2008-485-1124IN THE MATTER OF an appeal by way of case stated from the determination of the Social Security Appeal Authority at Wellington. Under Section 12Q of the Social Security Act 1964 BETWEEN ILYAS PATEL Appellant AND THE CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 1 October 2008 Appearances: Appellant in person LM Fong for Respondent Judgment: 1 October 2008JUDGMENT OF JOHN HANSEN JSolicitors: 911A Mt Eden Road, Three Kings, Auckland LM Fong, Crown Law, PO Box 2858, Wellington[1] This is an appeal by Mr Patel against the decision of the Social Security Appeal Authority ("the Authority"). [2] Pursuant to s 12Q of the Social Security Act 1964 an appeal to this Court is an appeal on points of law only. The questions of law that have been raised by way of the case stated are: a) Firstly, was there any evidence on which the Authority could conclude that the business premises alone have a value of $750,000.00, and equity in the land and buildings alone of nearly $300,000.00? b) Secondly, did the Authority err in law in finding that the Chief Executive was correct in exercising his discretion to cancel the appellant's accommodation supplement? [3] Mr Patel and his family live in rented accommodation at 911A Mt Eden Road. They have shares in a company which runs their business in Shore Road, the company being called Shore Road Superette. There are two buildings on that premises, one of which is a stand alone flat for which rental of $220.00 per week is received. Although the financial accounts do not identify this sum specifically, it is said by Mr Patel to be included in a provision for other income. [4] The Authority had before it the rating valuation, which gave a land value of $450,000.00 and a building value of $300,000.00. A total value of $750,000.00. The bank debt for the building was just under $420,000.00. It is from these figures that the Authority concluded that there was an equity in land and building of just in excess of $300,000.00. This relates to the first question of law, and Mr Patel has taken issue with that. He says that the buildings are in bad condition, requiring a variety of repairs and improvements. The flat is said to be worth $5,000.000 and is not worth relocating. What it really amounts to is an allegation that there was no evidence upon which the Authority could reach its conclusion.[5] Ms Fong in her submissions has referred to the well established principles inEdwards v Bairstow [1956] NZAR 471 (CA), affirmed by our Supreme Court recently in Bryson v Three Foot Six 3 NZLR 721 (SC). In Bryson v Three Foot Sixthe Supreme Court at [27] said this:It must be emphasised that an intending appellant seeking to assert that there was no evidence to support a finding of the Employment Court or that, to use Lord Radcliffe's preferred phrase, "the true and only reasonable conclusion contradicts the determination", faces a very high hurdle. It is important that appellate Judges keep this firmly in mind. Lord Donaldson MR has pointed out in Piggott Brothers & Co Ltd v Jackson the danger that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the tribunal which did so was certainly wrong: It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the industrial tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option .The Supreme Court continued at [28]:It should also be understood that an error concerning a particular fact which is only one element in an overall factual finding, where there is support for that overall finding in other portions of the evidence, cannot be said to give rise to a finding on "no evidence." It could nonetheless lead or contribute to an outcome which is insupportable.[6] Now those principles are applicable in this case. The simple fact is there was evidence upon which the Authority could reach its conclusion. It had the rateable valuation. It had no other evidence of valuation other than Mr Patel's statement that he now considers the building to be worth less and it is in poor condition. If Mr Patel wished to challenge the evidence contained in the rating valuation it was his option to obtain a valuation of the property and place it before the Authority. He has chosen not to do so. Today he tells me he did not do that simply because the valuation fee was $1,500.00. [7] Every level of decision-maker must act upon evidence. The only real evidence before the Authority as to the value of the property makes it clear that itsoverall valuation was $750,000.00. There was a complete lack of satisfactory evidence to show that any lesser figure was appropriate. In Edwards v Bairstow andBryson v Three Foot Six terms there was clearly evidence upon which the Authority could reach its conclusion. It was available to them, indeed given it was the only evidence before them, it strikes me as inevitable. [8] Interestingly, the Authority determined that s 61EC(3) did not apply, that section stating:(3) Notwithstanding anything to the contrary in this Act, an accommodation supplement shall not be paid to any person who has cash assets exceeding - (a) $16,200 in the case of- (i) a person who is married or in a civil union [or in a de facto relationship]; Rather, they applied subsection (4), which states:(4) Notwithstanding the provision of this section or of section 61EA of this Act, the [chief executive] may, if he or she is satisfied that the applicant or the applicant's spouse [or partner] has not realised any assets available for the applicant's personal use – (a) refuse to grant an accommodation supplement; .[9] The reality is, based on the valuation of the property and making allowances from the borrowing against the sister-in-law's house and the money borrowed from the mother-in-law, there was still a significant equity which shows that the shares in this company far exceeds $16,200.00. In any event it is also important to remember the very purpose of Social Welfare policies and legislation. In Director-General of Social Welfare v W [1997] 2 NZLR 104, 107 (HC), the High Court stated:The object of the social welfare legislation is to provide a publicly funded safety net where such is needed.Specifically in relation to the accommodation supplement, Cartwright J, as she then was, said in Lowry v Director General of Social Welfare (HC AK M1663/98, AP331/98 6 may 1999:An accommodation supplement is intended to assist those beneficiaries whose income is insufficient to meet reasonable accommodation costs andaccount will be taken of cash or realisable assets in making the assessment of need.[10] In this case there is a realisable asset. That asset is far in excess of $16,200.00. The Authority obviously concluded that there were no cash assets and went ahead under subsection (4). It is quite clear that given the equity in this building and the valuation of the shares accordingly, the Chief Executive was not only entitled to, but would inevitably make a decision under subsection (4) to refuse to grant the accommodation supplement. The decision of the Authority in the circumstances seems to me to be inevitable. If there had been proper valuation evidence to contradict the rating value before the Tribunal it may have been somewhat different. [11] The second question, as I noted, is did the Authority err in law in finding that the Chief Executive was correct in exercising his discretion to cancel the appellant's accommodation supplement? Again, it is a little hard to see that as a question of law. What is the error of law that is said to have been committed by the Authority? The question does not focus this Court on to any particular error that is said to have been made. [12] In any event I am satisfied there was no error of law on the part of the Authority and that the decision they reached was an inevitable one in the circumstances. It follows that this appeal must be dismissed.. John Hansen J