LILLIAN ALICE TAYLOR v ATTORNEY-GENERAL (ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT) [2021] NZSC 148

LILLIAN ALICE TAYLOR v ATTORNEY-GENERAL (ON BEHALF OF THE MINISTRY OF SOCIALDEVELOPMENT) [2021] NZSC 148 [4 November 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 94/2021[2021] NZSC 148BETWEEN LILLIAN ALICE TAYLORApplicantAND ATTORNEY-GENERAL (ON BEHALF OFTHE MINISTRY OF SOCIALDEVELOPMENT)RespondentCourt: William Young, Glazebrook and Williams JJCounsel: Applicant in personM J Bryant and S Deng for RespondentJudgment: 4 November 2021JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is granted.B The application to amend the application for leave to appealis granted.C All other interlocutory applications are dismissed.D The application for leave to appeal is dismissed.E There is no order as to costs.F A copy of this judgment is to be provided to theOmbudsman.____________________________________________________________________REASONSBackground[1] Ms Taylor has applied for leave to appeal the decision of the Court of Appealdated 23 July 2021.1 There is considerable background to this application, and it willbe useful to set it out in some detail.[2] Ms Taylor is approaching her mid-70s. She suffers from a long-term physicaldisability. She receives Temporary Additional Support, which can, if needed, includean allowance for additional power costs incurred due to disability. Ms Taylor soughtsuch an allowance. She advised the Ministry of Social Development (the Ministry)that her power costs for the year ending July 2013 were $1,845.38. In November 2013,the Ministry determined that Ms Taylor did not have any additional power costsattributable to her disability. On review, the Benefits Review Committee (BRC)increased this to a subsidy of 96 cents per week ($49.92 a year).The 2015 Authority decision[3] Ms Taylor appealed to the Social Security Appeal Authority (the Authority).2The Authority considered three methods for calculating her additional power costs,but identified difficulties with all of them.3 One such method the Authority consideredwas to use the Powerswitch calculator. The Powerswitch calculator is a websiteoperated by Consumer New Zealand that provides (among other things) a method forcalculating average household electricity use. The Ministry had used it to estimate theordinary cost of power for a one to two-person household in order to determine howmuch of Ms Taylor's power costs were incurred due to her disability. The Authoritynoted it might be appropriate to reduce the Powerswitch estimate by 10 per cent toreflect a single-person household, and a further 5 per cent for other factors.4 But theAuthority ultimately rejected this approach because it could not verify the figures used1 Taylor v The Attorney-General on behalf of the Ministry of Social Development [2021] NZCA 329.2 Re XXXX [2015] NZSSAA 24.3 At [18], [22] and [24].4 At [16]–[17].by the Ministry.5 The Authority reassessed Ms Taylor's additional disability-relatedpower costs to be 15 per cent of her total power costs:6In this particular case we consider the most appropriate option is to simply seta percentage figure based on the appellant's actual costs, her level of disabilityand need for additional power. In this case we assess the appellant's additionalpower costs to be 15% of her total usage. Fifteen percent of $1,845.38amounts to $276.80 per annum. The appellant's additional power costs for the52 weeks commencing on 8 November 2013 are to be assessed on this basis The 2016 High Court proceeding[4] Ms Taylor then appealed to the High Court, arguing that the 15 per cent figurehad no proper basis and that the Authority applied incorrect methodology incalculating her extra power costs. Appeals to the High Court from the Authority arelimited to matters of law.7 In June 2016, Whata J upheld the Authority's decision.8He held that the 15 per cent figure had been arrived at partly on the basis of pointsMs Taylor had herself raised:9The Authority identified the Consumer Powerswitch website discountestimate for a one person household as 10% (at [16](i) of the decision),adjusted that estimate by 5% to take into account the matters raised byMs Taylor (at [17]) and specifically referred to the additional needs identifiedby Ms Taylor (at [19]) in accordance with her evidence (see summary belowat [35]). See also [18] of the case on appeal. In the final part of the decision,the Authority arrived at a figure of 15% to represent Ms Taylor's additionalpower costs. Plainly the Authority has assembled the information referred toin the earlier parts of the decision (and as contained in the evidence) to arriveat the 15% figure. That was an assessment of fact and an evaluative judgmentavailable to it that is not otherwise reviewable by this Court on a case statedon a question of law.[5] The judgment also recorded a summary of Ms Taylor's power usage for heatingand laundry:[35] Ultimately, the Authority examined a number of options for assessingMs Taylor's needs, including by reference to the Powerswitch websiteestimate, and decided to take an approach that is both fair to Ms Taylor andadministratively practicable. This involved identifying her specific needs andfixing an amount by reference to them. This assessment was based on5 At [18].6 At [24].7 Social Security Act 1964, s 12Q.8 Taylor v The Chief Executive of the Ministry of Social Development [2016] NZHC 1160.9 At [25].evidence given by Ms Taylor and helpfully summarised by the respondent,namely:(a) She used the clothes dryer two or three times per week,although some weeks not at all.(b) She used the clothes dryer when home help was not availablebecause she cannot hang her washing on the clotheslineherself.(c) She did not need heating in the summer months and that heruse of heating was seasonal.(d) When she did turn on the heat pump it was usually in theevenings. Furthermore, she kept warm with a blanket untilshe felt the need to turn it on.(e) The heating would be turned on for around four or five hoursfrom approximately 7.00 pm.(f) In winter she would occasionally use heating during the day,such as an oil filled heater or a fan heater.(g) She would not have the heating on all day "unless it wasparticularly miserable".[6] Ms Taylor then applied for leave to appeal to the Court of Appeal. The Courtdeclined the application on the ground that the questions Ms Taylor posed in herapplication did not constitute questions of law.10 Nor did they meet the relevantstatutory criteria.11 Further, the Court agreed with the High Court that there was amplebasis for the figure of 15 per cent and that the Authority used the correctmethodology.12 That was the end of the road for the issues then raised by Ms Taylorin her challenge of the Authority's 2015 decision.The September and October 2016 Ministry decisions[7] In September 2016, the Ministry again reassessed Ms Taylor's allowance. TheMinistry wrongly removed her power costs subsidy for a second time. This error wascorrected when the Ministry reassessed the position again a month later (inOctober 2016). The Ministry increased Ms Taylor's additional power costs but onlyby a small amount. In June 2017, the BRC "overturned" the Ministry's10 Taylor v The Chief Executive of the Ministry of Social Development [2016] NZCA 489 at [15].11 Section 303(2) of the Criminal Procedure Act 2011 applies to appeals to the Court of Appeal unders 12R of the Social Security Act: at [16].12 At [14].September 2016 decision and re-instated Ms Taylor's 15 per cent subsidy. Ms Taylorthen appealed the BRC decision to the Authority in October 2017, but later withdrewher appeal after January 2018, when the Authority indicated that the High Court'sJune 2016 decision was binding on it so there would be no point.The judicial review proceeding[8] Ms Taylor then commenced judicial review proceedings in 2019. It was notclear to the High Court judges dealing with the matter what decisions Ms Taylorchallenged and why, but she ultimately confirmed that she wished to challenge theMinistry's September 2016 decision because only one of two aspects she raised hadbeen addressed. In a minute dated 24 October 2019, Palmer J, in a bid to bring someshape to the proceeding, identified the following issues from Ms Taylor's amendedstatement of claim that was before him at that time:(a) Did the Authority pre-determine Ms Taylor's appeal in its pre-hearingdirection on 30 January 2018?(b) Did the Ministry's decision, communicated on 31 October and22 November 2016, applying the 15 per cent methodology, overlookrelevant considerations, take into account irrelevant considerations orfetter its discretion? In particular, did the Ministry fail to follow its owninternal procedures, because the 15 per cent methodology had notbecome part of its MAP process and did it fail to make allowance fordaily line charges and assume prompt payment of power bills?[9] In early 2020, Ms Taylor's claims against the Authority were discontinued byconsent, so only the second issue above fell to be considered.[10] The substantive judicial review was heard by Brewer J in April 2020 bytelephone (due to the Covid-19 lockdown), a course Ms Taylor opposed at the time.13The Judge considered that only the Ministry's October 2016 reinstatement decisioncould be reviewed, as the September 2016 decision was acknowledged to be wrong13 Ms Taylor therefore did not appear at the hearing.and had been superseded.14 The Judge held that given Ms Taylor had not provided theMinistry with any evidence of a change in her electricity consumption, the Ministryhad to take into account the High Court's June 2016 decision upholding the 15 per centsubsidy adopted by the Authority.15 There was also no obligation for the Ministry touse its internal procedure guidelines.16 The Ministry's October 2016 decision wastherefore upheld.17[11] Ms Taylor appealed to the Court of Appeal. That Court noted that Ms Taylorwas concerned with the Ministry's use of the Powerswitch calculator to determineadditional power costs, not just the decisions made in respect of her ownentitlements.18 But the Court considered that Ms Taylor had not identified a specificdecision involving use of the Powerswitch calculator that could be reviewed.19 Itnoted that that Court had, in 2016, declined Ms Taylor leave to appeal the June 2016High Court decision in relation to the 15 per cent subsidy, so the issues raised in thatcase could not be reopened in the appeal against Brewer J's decision.20 Her appealwas dismissed because, in the Court's view, Ms Taylor's submissions did not engagewith the issues that Brewer J had determined in the High Court.21[12] Ms Taylor now applies for leave to appeal this Court of Appeal decision.Interlocutory applications[13] In the early stages of her leave application, Ms Taylor applied for the followinginterlocutory orders:(a) that she be provided with a copy of the transcript of the hearing of17 June 2021 in the Court of Appeal;14 Taylor v The Attorney-General on behalf of the Ministry of Social Development [2020] NZHC 852at [34]–[35].15 At [41], [49] and [52].16 At [45].17 At [54].18 Taylor v The Attorney-General on behalf of the Ministry of Social Development [2021] NZCA 329(Courtney, Mander and Hinton JJ) at [34].19 At [37].20 At [39].21 At [40]–[42]. The Court did consider it unfair that Ms Taylor had to proceed with her judicialreview by telephone, but that did not warrant setting aside the decision: at [46]–[47].(b) that her application for leave to appeal filed electronically at 5 pm on20 August 2021 be accepted for filing;(c) granting her an extension of time to file submissions;(d) granting her leave to amend her 20 August 2021 application to align itwith hard copies, name herself as applicant rather than appellant, andinclude the file note of a Clare Loudon dated 29 September 2016, adecision of Brown J dated 31 July 2020 and details of the commercialsignificance of the matter;(e) that all her applications be heard "fairly, in open court, and inreasonable time"; and(f) that the respondent "declare any conflict of interest".[14] Ms Taylor then advised that the incorrect leave application had been acceptedfor filing, and applied to adjourn her leave application until: the correct application for leave to appeal has been accepted for filing;Covid-19 protocols allow the unconditional provision to her of a transcript orcopy of the recording taken at the hearing of 17 June 2021; the decisionsrelevant to the decisions appealed against (as advised in the originalapplication) are delivered to the court by courier; her individually filedInterlocutory Applications 1-6 to be filed 7 September 2021 are fairly heard,and Covid-19 protocols for courts allow her to physically attend all hearings.Transcript[15] Ms Taylor submitted that the transcript of the Court of Appeal hearing was"integral to the preparation of her application for leave to appeal". She has, however,already filed submissions in support of that application. In the circumstances, atranscript is no longer needed. This application is dismissed.Application be accepted for filing[16] Ms Taylor's application for leave to appeal was submitted on 20 August 2021,but the fee waiver form was not filed until after 5 pm that day. The application wastherefore accepted for filing on the first following working day, being 23August 2021.22 There is no need for a further order that it be accepted for filing. It is,however, one day out of time. In the circumstances, we grant an extension of time toapply for leave to appeal.Extension of time to file submissions[17] As Ms Taylor has already filed submissions, this application is now moot.Amendment of application[18] The respondent not opposing, the application to amend the application forleave is granted.Oral hearing[19] There is no right to appear before this Court on an application for leave toappeal,23 or on an interlocutory application. These applications are dealt with on thepapers, except in exceptional circumstances. The fact that, for various reasons, thishas also been the procedure adopted in the Courts below in this matter is well noted,but that is not a sufficient reason for this Court to depart from its usual practice in thiscase. This application is dismissed.Conflict of interest[20] Ms Taylor appears to suggest that the Attorney-General's involvement in theappointment of High Court judges gives rise to a conflict of interest. There is no basisfor this suggestion. Judges are, by law, independent of the government of the day andtake that independence very seriously indeed. The application for this order isdismissed.Adjournment[21] The application for an oral hearing being declined, there is no basis for anadjournment. This application is dismissed.22 See Supreme Court Rules 2004, r 10(5).23 Senior Courts Act 2016, s 76(2).The present application[22] It is appropriate therefore to deal with Ms Taylor's application for leave now.[23] Ms Taylor has filed at least seven memoranda, three amended applications forleave to appeal, an affidavit, a synopsis of argument, and a list of issues on appealidentifying some 37 questions, relating to multiple different decisions, that she saysarise from her case—many of which are procedural complaints. The essence of hersubstantive arguments comes down to one main point: the Ministry is incorrectly usingthe Powerswitch website generally when determining how much power a person in aclient's position would use if they did not have the disability.[24] First, Ms Taylor says that the Ministry is comparing a client's actual usage notto how much power a person in their circumstances would use without the particulardisability, but to what that client's own usage might cost on other plans with othercompanies. The Powerswitch website offers two types of estimate: 1) an estimate ofa person's potential power costs with other providers if they know their actual powerusage; and 2) an estimate of the cost of normal usage for various household sizes ifthe person does not know their actual power usage. Ms Taylor says that the Ministryis using the first type of estimate to assess whether clients have additional power costs,which is inappropriate. Ms Taylor has filed a copy of a Ministry file note dated29 September 2016 showing the application of this estimate:24Based on kWh used 5263, POWERSWITCH calculated an annual costbetween $1610.00-$2031.00. Client's confirmed Contact Energy powerbills=$1362.22, so no excess power used for the year 16/07/15-15/07/16.[25] Second, Ms Taylor says that the Ministry considers there is no way to reducethe Powerswitch result for a one to two-person household to that of a one-personhousehold.[26] Ms Taylor claims that this methodology is used for all clients, and that as aresult, thousands of disabled beneficiaries will be deprived of their true and correctentitlement. Ms Taylor says that she offered evidence of this methodology being usedwith another client, but it was not admitted by the Courts below.24 Emphasis added.[27] Indeed, part of Ms Taylor's complaint now is that the above issues are whatshe sought to review after the Ministry reassessed her additional power costs to nilagain in September 2019, but the BRC did not address them. Nor did the Courtssubsequently when she brought her judicial review. From her perspective, therefore,her real argument was never acknowledged and thus never dealt with from thebeginning.Respondent's submissions[28] The respondent submits that the October 2016 decision is specific to Ms Taylorand has no wider application. It also superseded the September 2016 decision. Nomatter of general or public importance therefore arises. Nor is there a risk of amiscarriage of justice, as Ms Taylor has not identified any error of fact or law madeby the Court of Appeal.Our assessment[29] As Ms Taylor's application is in respect of the Court of Appeal decisiondismissing her appeal from Brewer J's High Court decision, any appeal to this Courtcould not resolve the core issue Ms Taylor is concerned with outlined above, as thatissue was not dealt with in those Courts. Ms Taylor has not identified any error in theCourt of Appeal's judgment that would meet the criteria for leave.25 We thereforedismiss the application for leave to appeal.[30] We note, however, that the reasoning recorded in the Ministry file note quotedat [24] above appears to be unsound. This error has been overtaken in Ms Taylor'sparticular case, but it would be concerning if it reflects a wider systemic approach, inwhich case steps ought to be taken to correct it.Result[31] The application for an extension of time to apply for leave to appeal is granted.[32] The application to amend the application for leave to appeal is granted.25 Senior Courts Act, s 74(2).[33] All other interlocutory applications are dismissed.[34] The application for leave to appeal is dismissed.[35] There is no order as to costs.[36] We direct that a copy of this judgment be provided to the Ombudsman.Solicitors:Crown Law Office, Wellington for Respondent