GREENWOOD v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 44

GREENWOOD v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 44 [30 January 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2016-485-537[2017] NZHC 44IN THE MATTER OF an appeal by way of case stated from thedetermination of the Social SecurityAppeal Authority at Wellington unders 12Q of the Social Security Act 1964BETWEEN KEITH AND VIVIEN GREENWOODAppellantsAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 8 December 2016Appearances: Keith Greenwood and Vivien Greenwood self representedD Taylor and N Bailey for RespondentJudgment: 30 January 2017JUDGMENT OF CULL J[1] This appeal concerns a decision of the Social Security Appeal Authority (the Authority) of 24 February 2016, declining to hear the appellants' appeal. It is by way of a case stated under s 12Q of the Social Security Act 1964 (the Act). The question on appeal is:Did the Authority err in law in determining that it lacked jurisdiction to consider an appeal from the appellants?[2] The appellants contend that the Authority was in error, as it did have jurisdiction to entertain their appeal. The Crown's position is that the Authority was correct to determine it had no jurisdiction and there was no error of law.Background[3] The case arises out of a decision by the Ministry of Social Development (theMinistry) to grant the appellants' daughter, Paige Greenwood (Paige), a Youth Payment under s 159(2)(d) of the Act. She first applied on 27 August 2013 and her application was declined on 16 October 2013. Paige then sought a review of the decision and provided further information. The Ministry reversed its decision on 3 January 2014 and granted Paige the Youth Payment.[4] On 17 January 2014, the appellants notified the Ministry of their intention to seek a review of the decision. On 7 August, the Ministry informed the appellants that an internal review had been undertaken and they had upheld the original decision.[5] The Benefits Review Committee (BRC) held hearings on 24 February 2015 and 25 March 2015 to determine whether it had jurisdiction to hear the appellants' review. It found it did not. The appellants were not parties "affected" by thedecision and therefore did not have standing to bring a review.[6] The appellants then filed an appeal against the BRC decision with the Authority. On 24 February 2016, the Authority determined that it lacked jurisdictionto hear the appeal, because the decision about Paige's benefit was not confirmed orvaried by the BRC.The appellants' submissions[7] The appellants submit that the BRC's gate-keeping or jurisdictional decisions must be appealable, as are its substantive decisions. The appellants say that gate- keeping decisions are legal ones and it would be appropriate to allow appeals on such questions. The appellants contend that the purpose of the wording in s 12J(16) is unclear and ought to have been clarified by the legislature, if there was no appeal right intended.[8] Further, the appellants submit that the BRC's decision was essentially a confirmation of the Ministry's decision. They say that the Ministry had made adecision that they were not "affected" by its decision about Paige's benefit, so the BRC's decision that it lacked jurisdiction for the same reason amounted to a confirmation of the Ministry's view.[9] Alternatively, the appellants stated that the BRC acted in the ChiefExecutive's stead and therefore its decision can be deemed a decision of the Chief Executive according to s 12J(16)(b).The Crown's submissions[10] For the respondent, it is submitted that there was no error, and the Authority did indeed lack jurisdiction to hear the appeal. First, it submits that the decision was delegated and not made by the Chief Executive personally. Therefore s 12J(16)(a)applies. The decision at issue was about Paige's entitlement to a Youth Payment.That decision was not varied or confirmed.[11] Although it is not strictly relevant to the appeal, the jurisdictional issue that arose in the BRC of whether the appellants had standing to seek a review under s 10A of the Act similarly arises in the context of s 12J. For an appeal to theAuthority, the appellants must have been "affected" by the decision.[12] The respondent submits that the BRC and the Authority were correct in finding that the appellants are not "affected" parties in the way contemplated by the Act.[13] Although the appellants are beneficiaries in their own right, it is not clear that they were intended to have a right of review or appeal, even if they were affected. It would create an anomaly whereby parents would have a right of review or appeal only where they too are beneficiaries.[14] In response to the appellant's submission that the BRC effectively overturnedthe earlier decision of the Chief Executive to conduct an internal review and, therefore, this was a variation by the BRC and is subject to an appeal right, the Crown submits that the decision of the BRC was about its jurisdiction. This was a separate decision from that of the Chief Executive or the Ministry to conduct aninternal review of a benefit application. The BRC specifically declined jurisdictionto review the Chief Executive's decision on the appellant's application. This did notgive rise to a right to appeal for the appellants.DiscussionJurisdiction of the High Court in a case stated appeal[15] The jurisdiction of the High Court is a constrained one on a case stated appeal. Under s 12Q(1), any party dissatisfied with a determination of the Authority as being erroneous in point of law may appeal to the High Court by way of case stated for the opinion of the Court on questions of law only. This is not a general right of appeal, but a more limited right.1[16] Rule 21.14 of the High Court Rules governs this Court's jurisdiction on adetermination of the question of fact or law in a case stated. Rule 21.14 provides:After hearing and determining the question of law or fact (or both) in a case stated, the court must do 1 or more of the following things:(a) in the case of an appeal, reverse, confirm, or amend the decision in respect of which the case was stated:(b) in the case of an appeal, remit the matter to the tribunal for reconsideration and decision in accordance with the opinion of the court on the question of law or fact (or both):(c) in every other case, remit the matter to the tribunal with the opinion of the court:(d) in any case, make any other order that is just.[17] The sole question to be determined in this appeal is whether the Authority had jurisdiction to consider an appeal from the BRC.1 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [50].Jurisdiction of the Authority[18] The jurisdiction of the Authority on appeal is conferred by s 12J of the Act. At the relevant time, the empowering provision was s 12J Social Security Act 1964. It provided:212J Rights of appealDecisions or determinations under specified social assistance enactments(1) Any applicant or beneficiary may appeal to the Appeal Authority against any decision or determination of the chief executive made in relation to the applicant or beneficiary under—(a) Any of the provisions of Parts 1A to 1P, Part 2, Part 4, or Part 5; orGeneral restrictions on appeals under this section(16) A decision cannot be appealed against under any other provision of this section unless the decision –(a) has been confirmed or varied by a benefits review committee under s 10A; or(b) was made by the chief executive other than pursuant to a delegation.[19] The exercise of the Authority's jurisdiction depends upon whether the decision, which is the subject of the appeal, is a delegated decision under s 12J(16)(a) or one made by the Chief Executive personally under s 12J(16)(b). The High Court has considered the scheme of the Act in Bocxe v Chief Executive of the Ministry of Social Development and described it as follows:3The scheme of the Act is as follows. If the Chief Executive has made a decision himself or herself, then there is a direct right of appeal to the Authority. If there is a decision made by any person in exercise of any power, function or discretion conferred on that person by delegation, then there is a right to seek review of that decision by a Committee, and there is then a right of appeal to the Authority if the Committee confirms or varies the decision.2 Reprint as at 1 July 2015, in force at the time of the Authority's decision.3 Bocxe v Chief Executive of the Ministry of Social Development, HC Auckland, CIV-2008-485- 1122, 1 October 2008 at [34].[20] The decision at issue in this case was a delegated decision, made by a case manager of the Ministry, acting on behalf of the Chief Executive. As the decision was not made by the Chief Executive, the applicable provision is s 12J(16)(a), whichrequires the BRC to have confirmed or varied the case manager's decision. In otherwords, there is no direct right of appeal to the Authority.[21] Here, the BRC did not confirm or vary the decision under s 10A(8) of the Act and concluded that it lacked the jurisdiction to review the decision. The Authority said:4[5] The Benefits Review Committee did not confirm or vary the decision of the Chief Executive to grant a benefit to Paige. Rather, it declined jurisdiction to consider the request by Mr and Mrs Greenwood for a review. A decision about its jurisdiction is one solely for the Benefits Review Committee. No decision of the Chief Executive is involved. It cannot be said that the decision that Mr and Mrs Greenwood wish to appeal is a decision which has been confirmed or varied by a Benefits Review Committee. As a result, this Authority does not have jurisdiction to review the Benefits Review Committee decision on jurisdiction or the ChiefExecutive's decision to grant a benefit to Paige.[22] The BRC's decision on its jurisdiction in this case is a distinct and separatedecision to a substantive review decision and is not a variation or confirmation of the decision of the Chief Executive, by his delegate. In this way, it is analogous toBocxe which involved an appeal from the Committee's determination not to extendtime under s 10A(1)(b) of the Act. Wylie J held that there was no decision or determination of the Chief Executive and time should not be extended.5 Nor was the decision or determination of the Chief Executive confirmed or varied by theCommittee. Rather, it was the Committee's decision to decline an extension of time,which is distinct from and prior to its consideration of the application itself.[23] I find that the Authority was correct to decline to hear the appeal on the ground that it lacked jurisdiction under the Act. There was no confirmation orvariation by the Benefits Review Committee of the Ministry's decision and theAuthority was correct to decline jurisdiction under s 12J(16)(a).4 Greenwood v Chief Executive of the Ministry of Social Development [2016] NZSAA 7.5 Bocxe v Chief Executive of the Ministry of Social Development, above n 3 at [35] and [36].Was the decision made by the Chief Executive personally?[24] The appellants contend that the BRC, in confirming a decision of theMinistry, was acting in the Chief Executive's stead. Thus, there is a direct appeal right to the High Court, because the BRC has made a decision as if it were the Chief Executive. The appellants contend that jurisdiction is available under s 12J(16)(b). They rely on the decision of the Supreme Court in Arbuthnot v Chief Executive of the Department of Work and Income, in which the Court stated:6It is apparent from the drafting of the provisions that the BRC is intended to act in the place of the Chief Executive. Its decision, either to confirm, modify or reverse the original decision, has the same standing as the decision the Chief Executive might have made if personally undertaking the review. It is a Departmental decision.[25] The Chief Executive and the BRC are separate entities and the structure and functions under the Act treats them as such. Section 12J(16)(b) deals with decisions of the Chief Executive personally, not by delegation. Under para (a), the right of appeal is against decisions of the BRC, in recognition of the fact the BRC is not an independent judicial body. It is a substitute for a review by the Chief Executive.[26] The Supreme Court in Arbuthnot did not determine that BRC decisions and decisions by the Chief Executive are one and the same. Rather, the focus of the Court's decision was whether the Chief Executive had a right of appeal. The Court said further:Naturally, a Chief Executive who does personally carry out a review cannot appeal against his or her own decision. And because the BRC is effectivelyacting on the Chief Executive's stead, the Chief Executive has no right toappeal the BRC's decision either. Any ability for the Chief Executive torevisit the decision, in the event that the beneficiary is dissatisfied with it and does not appeal, is afforded only under s 81, which is discussed below.[27] The Supreme Court determined that a decision of the BRC "has the samestanding as the decision the Chief Executive might have made if personallyundertaking the review." Subsection 16(b) does not include decisions of the BRC,otherwise it would have been referred to explicitly. In that event, para (b) would6 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13 at [19].provide a right of appeal for all decisions of the BRC and render the distinction between paras (a) and (b) meaningless.[28] I concur with the observation of Wylie J in Bocxe, that "[i]t is not appropriateto try and stretch that [statutory language] to extend the jurisdiction of the Authority simply because a decision affecting a beneficiary has been made by the Committee."I am unable to uphold the appellants' submission.[29] The appellants submit further that on the Authority's interpretation, s 12J leaves the appellants without any legal recourse. The Authority noted in its decision that judicial review and a complaint to the Ombudsman are both available to the appellants.7[30] The appellants submit that they are appealing the decision that their daughter was in exceptional circumstances, which they contend was untrue. Although the Ministry conducted an internal review and interviewed the appellants, the Ministry decided to grant the Youth Payment to Paige. During the hearing, the appellants both confirmed that they were concerned about the process which the Ministry undertook and the way in which the Ministry acted upon the information given to it. The appellants accepted that, because they wished to review the Ministry's process, judicial review was the more appropriate proceeding.Were the appellants "affected" parties?[31] The appellants submit that the decision by the Ministry that they were not"affected" by the decision to class their daughter as having exceptionalcircumstances gave rise to the hearing before the BRC. The BRC and the Authority confirmed that the appellants were not persons affected by the decision.[32] At the hearing, the appellants submitted that they were beneficiaries and were affected financially and emotionally by the Ministry's decision. They should havebeen heard by the BRC as affected persons.7 Greenwood v Chief Executive of the Ministry of Social Development, above n 4, at [6].[33] Section 10A(1)(a) provides a right of review:8To an applicant or beneficiary affected by a decision made by any person against which the applicant or beneficiary has a right of appeal under s12J [34] The right of review is to the BRC, which can only review decisions where theperson seeking a review is an "applicant or beneficiary" and who is "affected" by thedecision.[35] When the appellants applied for review, the BRC held an initial hearing to determine whether it had jurisdiction to hear the substantive review. The issue for the BRC to determine was whether the appellants were applicants or beneficiaries affected by that decision.[36] The High Court has considered the meaning of "affected" in this context inWharerimu v Chief Executive of Department of Work and Income.9 The Court held that a person must be affected economically to have a right of appeal. The appellants were not economically affected by the decision to grant Paige the Youth Payment. The bodies below confirmed that the appellants did not lose any benefit payments as a result of that determination. While the appellants were clearly affected in a broader sense, the effects were not economic.[37] The BRC accepted that the appellants were "applicants or beneficiaries"(being beneficiaries in their own right), but the BRC stated it was not certain thatParliament intended persons in the appellants' position to have a right of review.The BRC said this:The Committee accepts that under the interpretation of "beneficiary"contained in s 3 of the Social Security Act 1964 the applicant is a beneficiary. However, the Committee is not certain that it was the intent of the law to allow a beneficiary the right to review a decision when thebeneficiary believed that they were "affected" but that they were not theapplicant or beneficiary directly affected by the decision. For example, would it be reasonable for a beneficiary whose boarder was declined accommodation supplement the right to review that decision because their boarder was in arrears with their board payment.8 Reprint as at 1 January 2014.9 Wharerimu v Chief Executive of Department of Work and Income [2000] NZAR 467 (HC).[38] The BRC applied the finding in Wharerimu, that the appellants did not have a right of review under s 10A because they were not "affected" by the decision, because there was no economic impact on them. It said:Taken literally it can be accepted that the applicant is a beneficiary however the Committee does not accept that the applicant is affected by the decision to grant a Youth Payment. The economic affect [sic] for the applicant was the result of Paige leaving the family home and not the grant of the Youth Payment.10[39] The BRC, after taking into account the Wharerimu finding, concluded it lacked jurisdiction to consider the appellants review.[40] The Authority considered the substance of the BRC decision and concluded it would have upheld the decision of the BRC, noting that it was not strictly necessary for the Authority to consider whether or not the appellants were beneficiaries effected by the Chief Executive's decision. For completeness, the Authoritynevertheless preceded to apply Wharerimu and concluded:11There is no suggestion in this case that benefit payments to Mr and Mrs Greenwood have altered as a result of the grant of youth benefit to Paige. Nor has it been suggested that as a result of the decision they have been assessed to pay Child Support.[41] I accept the Crown's submission that even if the Authority did err in law in determining it lacked jurisdiction to hear the appellants' appeal, which I have found it did not, it had no material impact on the appellants claim because they were not"affected" by the decision of the Chief Executive. The Appeal would have failedanyway.Did the BRC act outside its jurisdiction?[42] The appellants submit that the Ministry is responsible for a decision on whether the applicant is eligible to appeal. Thus, the appellants contend, if the BRC decides the appellants do not qualify, the BRC is acting outside the scope of its jurisdiction.10 The reference to applicant is to the appellants and the economic effect referred to by the BRC was a reduction in the appellants' family tax credit payments consequent on Paige no longer living at home. This was not a consequence of her obtaining the Youth Payment.11 Greenwood v Chief Executive of the Ministry of Social Development, above n 4, at [16].[43] The appellants rely on the language of s 10A(8) of the Act to substantiate this submission. Section 10A(8) says:As soon as practicable after receiving an application for review the review committee shall review the decision and may, in accordance with this Act, confirm, vary, or revoke the decision.[44] The appellants submit that the language of the provision is clear and unambiguous and reviewing the decision is mandatory. The language does not require the review process to decide first on the question of jurisdiction.[45] The BRC is a statutory body, which can operate only within jurisdiction conferred on it by the Act. A question of jurisdiction for any Tribunal or judicial body is a prior question which must be answered before any substantive review. Iaccept the Crown's submission that the mandatory language of s 10A(8) for the BRC to review a decision is only engaged after the BRC has determined it has jurisdiction to do so. In this case, the issue of jurisdiction was clearly raised with the parties and although the Act does not require the BRC to hold a preliminary hearing to determine a question of jurisdiction, it is a matter on which the Tribunal must be properly satisfied, which it did. I do not find that the BRC acted outside its jurisdiction or made an error of law.Result[46] I have determined the appellants appeal as follows:(a) To the question: Did the Authority err in law in determining that it lacked jurisdiction to consider an appeal from the appellants? Thequestion of law is answered "No".(b) The appeal is dismissed.Cull J