PRIDMORE v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 2434

PRIDMORE v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 2434 [4 October 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2016-485-000585[2017] NZHC 2434IN THE MATTER of an appeal by way of case stated fromthe determination of the Social SecurityAppeal Authority at Wellington unders 12Q of the Social Security Act 1964BETWEEN JOHN PRIDMOREAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: On the papersJudgment: 4 October 2017JUDGMENT OF VENNING JThis judgment was delivered by me on 4 October 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Crown Law, WellingtonCopy to: AppellantIntroduction[1] On 19 October 2015 the Social Security Appeal Authority dismissed MrPridmore's appeal against the decision to decline his application for New Zealand Superannuation (NZS) to be paid to him in Japan.[2] Mr Pridmore appeals from the Authority's decision by way of case stated. The appeal raises the following questions of law:(a) Did the Authority err in its interpretation and application of s 26B of the New Zealand Superannuation and Retirement Income Act 2001 (the Act)?(b) Was there any evidence on which the Authority could conclude that the appellant was not ordinarily resident in New Zealand at the time of his application for portability in 2011?The appellant's position[3] Mr Pridmore says he satisfied the requirements of s 26B of the Act when he applied for portability in 2011. He was present in New Zealand and was ordinarily resident here so that the Authority erred in its interpretation and application of s 26B of the Act. Mr Pridmore says that there was no evidence on which the Authority could conclude that he was not ordinarily resident in New Zealand at the time of the application in 2011. He says the main evidence relied on by the Authority stemmed from events occurring after the application.Procedure[4] Mr Pridmore lives in Japan. It has been agreed that the matter will be dealt with on the papers. The Registrar has referred the file to me to deal with as Duty Judge. The parties have exchanged written submissions. I have considered the submissions together with the bundle of documents relating to the appeal.[5] As an appeal on matters of law the appeal is a limited right of appeal.1 The Supreme Court of Canada in Canada (Director of Investigation and Research) v Southam Inc explained the difference between questions of law and questions of fact:2Briefly stated, questions of law are questions about what the correct legal test is; questions of facts are questions about what actually took place between the parties; and questions of mixed law and fact are questions aboutwhether the facts satisfy the legal tests. [6] A classic question of law will be whether the statute has been correctly interpreted.3 The first question of law is such a question.[7] There will also however be an error of law where the ultimate conclusion of the fact finding body is clearly untenable. In the well known words of Lord Radcliffe in Edwards v Bairstow, that will occur where there is:4 a state of affairs "in which there is no evidence to support the determination" or "one in which the evidence is inconsistent with and contradictory of the determination" or "one in which the true and onlyreasonable conclusion contradicts the determination".The second question falls into that second category of question of law. The questions raised by the case stated are proper questions for the Court to address.Factual background[8] The appellant resides in Japan. He was born in 1936. He is now 81 years old. He turned 65 in July 2001, and applied for and was granted NZS on 3 January 2002. In 2004 Mr Pridmore married his Japanese wife. Between 3 January 2002 and 19 February 2007 Mr Pridmore spent 368 out of a possible 1,873 days in New Zealand. Mr Pridmore and his wife based themselves in Japan to care for his wife'smother who was diagnosed with cancer.1 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.2 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 35.3 Bryson v Three Foot Six Ltd, above n 1, at [20] and [24].4 At [26], citing Edwards v Bairstow [1956] AC 14 (HL).[9] In May 2007 the Ministry of Social Welfare contacted Mr Pridmore to discuss his frequent absences from New Zealand. On 13 August 2007 Mr Pridmore met with Mr Nilsen for an interview. Mr Nilsen recorded amongst other things:Clnt is living in Japan with wife and comes back to NZ (for short spells) to be within the 26 week requirement. PD from clnt that he intends to live in NZ when his wife is able to leave Japan (on passing of her mother); which clnt believes will be in the not too distant future.[10] Mr Pridmore completed a personal details form recording that:Although I am spending time overseas I intend to return to live in NZ in the foreseeable future.[11] Mr Pridmore's mother-in-law passed away in 2010. Following her death MrPridmore's wife was still not able to travel to New Zealand because she needed to settle her mother's affairs and then she became unwell herself.[12] In November 2010 Mr Pridmore was advised that his NZS was to be suspended as to qualify for NZS he needed to be ordinarily resident in New Zealand. On 19 April 2011 Mr Pridmore applied to receive his NZS in Japan. He returned toJapan on 28 April 2011. Mr Pridmore's application for portability of NZS was declined on 1 September 2011.[13] Mr Pridmore sought review of the 1 September decision, but the review was put on hold, pending the receipt of further information from Mr Pridmore. The review was resumed in July 2014. On 21 August 2014 an internal review confirmed the decision. The Benefits Review Committee then confirmed the decision again on 16 February 2015. Mr Pridmore than appealed the decision. On 19 October 2015 the Social Security Appeal Authority upheld the decision of 1 September 2011.[14] In its decision the Social Security Appeal Authority identified that to be entitled to NZS to be paid in Japan Mr Pridmore had to bring himself within s 26B ofthe Act. The Authority noted the requirement that Mr Pridmore had to be "ordinarily resident in New Zealand". It referred to the decision of the Supreme Court inGreenfield v Chief Executive, Ministry of Social Development.5 It then reviewed the evidence before it before concluding that:[21] Taking into account the length of time the appellant has lived his day-to-day life in Japan, and the uncertainty about any permanent return to New Zealand, the Authority was not satisfied that the appellant was ordinarily resident in New Zealand at the time of his application for portability in 2011.First question – the interpretation of s 26B?[15] Mr Pridmore submits that in 2007 his eligibility for NZS was determined and approved on the same set of facts that still applied in 2011. He was living most of the time in Japan on both occasions. At the time he made the application on 19 April 2011 he was present in New Zealand and believed he remained eligible. It was only because of the personal domestic circumstances involving his wife and his wife'smother that they were unable to achieve their plans to live in New Zealand.[16] Mr Pridmore submits that conceptually the whole purpose of s 26B is for absences of more than 26 weeks and nothing on the application form he completed suggested a time limit. He submits that the forms used by the Department are confusing. The form implied portability was possible. He believed he was eligible and indeed for a time his NZS was actually re-granted, the Chief Executive says inerror.[17] With respect to Mr Pridmore's submissions they do not directly address the correct interpretation of s 26B.[18] The scheme of the Act is that, subject to satisfying the provisions of the Act every person who attains the age of 65 is entitled to NZS.6 Section 8 sets out three residential qualification criteria, namely a person must:(a) be ordinarily resident in New Zealand on the date of application for NZS;5 Greenfield v Chief Executive, Ministry of Social Development [2015] NZSC 139, [2016] 1 NZLR 261.6 New Zealand Superannuation and Retirement Income Act 2001, s 7.(b) have been living in New Zealand for at least 10 years since the age of 20; and(c) have been living in New Zealand for at least five years since the age of 50.[19] Mr Pridmore initially qualified when he applied for and was granted NZS in January 2002.[20] Entitlement to NZS while absent from New Zealand is provided for by s 21 of the Act which provides that while a person is absent from New Zealand they are not entitled to NZS except as provided for in ss 22 to 35.[21] The relevant sections thereafter are ss 26 and 26B. A person who intends to reside in another country for longer than 26 weeks is entitled to overseas payment of NZS if they satisfy the requirements of s 26B.[22] The requirements of s 26B are:26B EntitlementA person is not entitled to be paid New Zealand superannuation under section 26 unless he or she—(a) has made an application for the payment of New Zealand superannuation under that section stating either (as the case may be)—(i) the country or countries in which he or she intends to reside and the period for which he or she intends to reside there; or(ii) the country or countries to and in which he or she intends to travel; and(b) is ordinarily resident and present in New Zealand on the day he or she makes the application, and—(i) is entitled to receive New Zealand superannuation on that day; or(ii) will become entitled to receive New Zealand superannuation before he or she leaves New Zealand.[23] Importantly for present purpose an applicant, such as Mr Pridmore, must satisfy the requirements of both (a) and (b) of s 26B. The issue in the present case for Mr Pridmore was whether it could be said that he was ordinarily resident in New Zealand at the time he made the application.[24] On that issue the Supreme Court in Greenfield v Chief Executive, Ministry of Social Development discussed the concepts of ordinarily resident:7[36] where, as here, no such intention can be discerned, the inquiry into ordinary residence should logically address where the subject person'shome had been up until the critical date, where that person was living at thecritical date and that person's then intentions as to the future.[37] In a case where the subject person is not living in New Zealand buthas in the past lived in New Zealand, that person's intentions as to futureresidence will be material to whether he or she remains ordinarily resident in New Zealand. As noted, an intention never to return to New Zealand would preclude a finding of ordinary residence in New Zealand. On the other hand, the possibility that the subject person might not return to New Zealand would not necessarily have the same effect. By way of example, a person who takes a temporary job for six months in Australia but whose family and house remain in New Zealand would remain ordinarily resident in New Zealand despite entertaining the possibility of remaining in Australia depending on the way circumstances pan out. The stronger and less equivocal the intention to return, the more likely it is that ordinary residence in New Zealand has been retained. The state of mind of the subject person, however, is only one consideration and must be assessed alongside thedomestic realities of that person's life including the length of time thatperson has lived out of New Zealand. Other considerations may include the age of the subject person and family connections with New Zealand and the other country.[25] The Authority referred to that passage. It addressed the correct legal issue. Applying that approach to Mr Pridmore's case the Authority concluded that taking account of the length of time Mr Pridmore had lived his day-to-day life in Japan and the uncertainty about his permanent return he was not ordinarily resident. That addressed the points made by the Supreme Court in [36] and [37].[26] The application form that Mr Pridmore completed on 19 April 2011 contained a number of questions. The question under "Overseas intentions, Q 26 was: "How long do you intend to live outside New Zealand?" Mr Pridmore tickedthe box "Permanently". His handwritten explanation was: "Can't be sure depends7 Greenfield v Chief Executive, Ministry of Social Development [2015] NZSC 139.on circumstances. As yet not clear". Importantly the officer interviewing Mr Pridmore at the time recorded:Client is returning to Japan, where his wife of approx 8 years, lives. Client'sintention is to remain living in Japan, especially as his wifes family commitments mean that she is not likely to leave Japan in near future.[27] The Authority's interpretation of s 26B and particularly the concept of ordinarily resident in New Zealand was correct as a matter of law. Its application on the basis of the material before the Court was open to it.Second question - Was there evidence on which the Authority could conclude the appellant was not ordinarily resident in New Zealand?[28] Mr Pridmore correctly submitted that the assessment had to be made at the time of his application. Despite his answer to question 26 of the form he submitted it was clear he never intended to live in Japan any longer than needed. He had sought to make clear in a later letter that he was planning to return to Japan to help his wife deal with the many things related to her mother passing away. He submitted that their plan and dream was to come and live together in New Zealand and remained so. His intentions were equivocal. Mr Pridmore says that as at April 2011 he had many friends in New Zealand. He had personal effects stored at three different locations in New Zealand. Mr Pridmore emphasised that he was candid and open with Work and Income New Zealand and believed that his absence did not alter his residency status.[29] However, as noted this is not a general appeal. This appeal is limited to questions of law. On this question, the issue is not whether there was some evidence that if his circumstances changed Mr Pridmore would return to New Zealand. The question of law is whether there was sufficient information for the Authority to conclude that, as at April 2011, Mr Pridmore was not ordinarily resident in New Zealand. Mr Pridmore criticised the Authority and says it considered circumstances occurring after April 2011. However, the Authority's decision is clear on that point.The Authority identified the relevant date as the time of Mr Pridmore's application for portability in 2011. It then went on to note:[23] For the purposes of this appeal it is not strictly necessary to consider the events which occurred when the appellant returned to New Zealand in July 2014.before going on to discuss those circumstances. In doing so the Authority did not use those events when making its determination at as the relevant time in 2011.[30] The information before the Authority as to Mr Pridmore's position at April 2011 was that he lived in Japan, and did not own or more importantly maintain a home in New Zealand.[31] Mr Pridmore had taken the opportunity of writing to Work and Income Services on 22 July 2011. In that letter he set out further information about his circumstances. He confirmed that taking care of her mother had unfortunately takenits toll on his wife's health. He noted that a combination of events over which hiswife and he had had no control had caused his wife in particular to have a rethinkabout coming to live in New Zealand. Mr Pridmore noted he could readilyunderstand her uncertainty now as her health was not as it was when they hadplanned to live together in New Zealand. He also understood her desire to be closeto her family in such uncertain times.[32] There was nothing in that letter to support any suggestion of Mr Pridmore being ordinarily resident in New Zealand. Rather it provided confirmation of his living circumstances in that he was ordinarily resident in Japan. That is where his wife was. That is where he had made his home by 2011.[33] At the time of his application for portability Mr Pridmore had spent approximately 82 per cent of the previous nine years and three months outside of New Zealand. While the appellant still had friends and family in New Zealand he had no property in New Zealand and did not belong to any particular organisation which engaged his attention whilst in New Zealand. For the short periods that he was in New Zealand he was in effect a visitor. On the basis of the information before it, there was sufficient evidence for the Authority to properly conclude Mr Pridmore was not ordinarily resident in New Zealand at the time of his application for portability.Result[34] The answers to the questions in the case stated are:(a) No. The Authority did not err in its interpretation in the application of s 26B; and(b) Yes. There was evidence on which the Authority could conclude Mr Pridmore was not ordinarily resident in New Zealand at the time of his application for portability in 2011.[35] There will be no order for costs in the circumstances.__________________________ Venning J