TAYLOR v THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT [2020] NZHC 852

TAYLOR v THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT[2020] NZHC 852 [30 April 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2129[2020] NZHC 852UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an examination of the accuracy of themethodology and practices used by theMinistry of Social Development in theircalculation of Disability Allowance andTemporary Additional SupportBETWEEN LILLIAN ALICE TAYLORApplicantAND THE ATTORNEY-GENERAL ON BEHALFOF THE MINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 24 April 2020 (by telephone)Appearances: No appearance by or on behalf of ApplicantM Bryant and L MacKay for RespondentJudgment: 30 April 2020JUDGMENT OF BREWER JThis judgment was delivered by me on 30 April 2020 at 3:00 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Law, WellingtonIntroduction[1] Ms Taylor represents herself in a proceeding which she describes as anapplication for judicial review. The Court has done its best to assist her to clarify herclaims and to bring them within the procedural requirements of the High Court Rules.As will become apparent, that effort largely failed.[2] Ms Taylor's case is that the methodology used to calculate her DisabilityAllowance and Temporary Additional Support payments is wrong and unlawful. Herapplication for judicial review of decisions going to the calculation of her entitlementswas given a hearing date of 24 April 2020. Due to the Covid-19 pandemic lockdown,counsel and Ms Taylor were to address the Court via telephone. Ms Taylor rejectedthis mode of hearing and refused to participate.[3] At the hearing, once it was established that Ms Taylor could not be contacted,I suggested to Mr Bryant, counsel for the respondent ("the Ministry"), that I decidethe case on the papers. Mr Bryant readily agreed.Procedural background[4] The Court first heard from Ms Taylor on her concerns about the calculation ofher entitlements (which are focused on her entitlement to payment for additionalelectricity usage resulting from her disability) on 19 May 2016. Ms Taylor, by way ofa case stated against a decision of the Social Security Appeal Authority ("theAuthority") made her argument to Whata J. Justice Whata found against Ms Taylor.1Ms Taylor's application for leave to appeal Whata J's decision was subsequentlydeclined by the Court of Appeal.2[5] Ms Taylor commenced her current proceeding in October 2018. Originally shesued five respondents. All applied to have her claims struck out. Their applicationswere heard by Edwards J on 9 May 2019.3 Justice Edwards gave comprehensive1 Taylor v Chief Executive of the Ministry of Social Development [2016] NZHC 1160.2 Taylor v Chief Executive of the Ministry of Social Development [2016] NZCA 489.3 Taylor v Social Security Appeal Authority [2019] NZHC 1718.attention to Ms Taylor's case. I quote the Judge's description of events followingWhata J's decision:[17] Ms Taylor's Temporary Allowance Support payment was reviewedagain in 2016. On 29 September 2016, her additional power costs wereremoved from the calculation of her Disability Allowance payment. TheMinistry determined that Ms Taylor was not using more electricity than the'normal' group she was being compared with in the Powerswitch calculator.[18] Ms Taylor applied to the Benefits Review Committee for a review ofthat decision. The Ministry acknowledged it had made an error in its earlierassessment and re-assessed Ms Taylor's entitlements in accordance with the15 per cent of total usage methodology adopted by the Authority in 2015 andupheld by the High Court and Court of Appeal. That decision wascommunicated to Ms Taylor in letters dated 31 October 2016 and22 November 2016. In the latter letter, the Ministry said:As you have already indicated that you do not consider that this changewould settle the matter your review application will continue to theBenefits Review Committee for a hearing. You will need to show thatthere has been a change in your circumstances which makes theassessment in power costs in your current situation different to yoursituation as dealt with in the Social Security Appeal Authority, HighCourt and Court of Appeal rulings.[19] Ms Taylor was still dissatisfied. On 21 February 2017, she sought areview of the Ministry's re-assessment of her power costs. Ms Taylor statedthat her power usage had increased by 9.6 per cent, and her Disability CostsAllowance should be increased to reflect this.[20] On 22 June 2017, the Benefits Review Committee overturned theMinistry's 29 September 2016 decision (based on the Powerswitch calculator)and recommended that Ms Taylor's additional power costs be calculated usingthe 15 per cent of total use methodology earlier applied.[21] Ms Taylor lodged an appeal with the Authority on 18 October 2017.On 30 January 2018, the Authority convened a pre-hearing telephoneconference and gave directions as to the progression of the appeal. The minutefrom that telephone conference records:[5] I note that at the telephone conference I explained to Ms Taylorthat the Authority is bound by the decision of the High Courton her unsuccessful appeal against a decision of this Authorityin 2016. That appeal raised one of the same issues Ms Taylorraises in this appeal, the way the Ministry calculates her powerrelated disability costs. It appears from Ms Taylor'ssubmissions to date and the witnesses that she intends to callthat she is advocating for the same calculation methods thatwere not accepted by the High Court although she iscontending that different circumstances now apply.[6] In upholding the decision of the Authority and finding that itwas not required to follow the MaP process for whichMs Taylor continues to advocate, Whata J observed that theAuthority has a broad discretion to set a disability allowancethat is fair and practicable.[7] At the conference Ms Taylor said that she did not accept thatthe Authority is bound by that decision. However, as Iexplained to her, the High Court decision is binding on theAuthority whether or not she accepts it. Therefore, raising thesame arguments before this Authority will have a predictableoutcome.[footnotes omitted and emphasis added][22] A hearing of the appeal was set down for 5 December 2018. However,Ms Taylor withdrew her appeal on 27 November 2018 and the hearing did notproceed.[23] Since then, Ms Taylor has continued to challenge the calculation ofthe payments she receives. She says that she has been told by the Ministrythat they "refuse to reassess my [Temporary Additional Support payment] byany method other than the 15 per cent awarded by the Ministry". She has beentold by the Ministry that the matter is sub judice because it is bound by theHigh Court decision. Her payments have not been reassessed since 2018.[24] Ms Taylor complained about the way her allowances were calculated,and other matters, in letters to the Minister and the Ombudsman. Theresponses to these letters form the basis of the judicial review proceedingsagainst the Minister and the Ombudsman.[6] Justice Edwards struck out Ms Taylor's claims against all but the Authority andthe Ministry.4[7] Justice Edwards noted:[26] The statement of claim itself is lengthy and difficult to follow. AtFitzgerald J's direction, Ms Taylor filed a "decisions document" that identifiesthe decisions the subject of challenge. That document provides someassistance in navigating the pleading and understanding the nature of thechallenges made[8] Justice Edwards identified the most salient failures by Ms Taylor to properlyparticularise her claims but considered Ms Taylor should be given the opportunity tore-plead. Accordingly, Edwards J directed:[71] By 4.00 pm, Friday, 23 August 2019, Ms Taylor shall file anamended pleading that is consistent with the findings made in this judgment,and addresses the issues set out at [41] to [48] of this judgment. The amendedstatement of claim shall also comply with the requirements set out in the HighCourt Rules. It is of course a matter for Ms Taylor herself, but given thecomplex nature of the claim, and the skill involved in pleading a claim forjudicial review, she is urged to consider obtaining some legal assistance withprogressing her claim.4 Ms Taylor was granted leave to discontinue her claim against the Authority by Woolford J on10 February 2020: see [21].[9] Ms Taylor did not obtain legal assistance and did file further documents.[10] Ms Taylor filed an amended statement of claim on 10 September 2019 but itwas still not clear what decisions were challenged and why. By Minute of12 September 2019, Palmer J directed a new amended statement of claim be filed by19 September 2019.[11] In a lengthy Minute dated 24 October 2019, Palmer J noted Ms Taylor hadfiled an amended statement of claim as directed. Justice Palmer said in his Minute:[6] At the call of the matter in the Judicial Review List, Ms Taylorconfirmed that it is the decision of 29 September 2016 that she seeks tochallenge. She submits it was only partially overturned because she asked fora review of two aspects of it and only one was addressed. She points toparagraph [10] of her affirmation. Ms Taylor wants the Court to acknowledgethe original decision was incorrect or to order a new assessment. She says shecan try to amend the statement of claim again but she does not think muchwould change[12] Justice Palmer went on to say:[7] I am reluctant to ask Ms Taylor to file a further amended statement ofclaim as I consider she is likely to have done the best she can to formulate thisone. I am also reluctant to timetable another application for strike out. Theprocess for applying for judicial review is supposed to be simple, untechnicaland prompt. This claim was filed over a year ago. It has already been thesubject of a strike-out application, which partly succeeded. If the existingstatement of claim can be interpreted to contain an identifiable claim, thesubstantive claim should be heard.[8] I consider it is clear enough that the current amended statement ofclaim seeks to litigate the following issues that they can be the subject ofevidence and submissions at a substantive hearing:(a) Did the Authority pre-determine Ms Taylor's appeal in its pre-hearingdirection on 30 January 2018? Edwards J held this was reasonablyarguable. The claim remains in the amended statement of claim.Ms Taylor does not explicitly seek relief for this claim. But, as shesaid at the call before last in the List, and my interpretation ofparagraph [8.7] of her memorandum of 22 October 2019, she can betaken to be seeking to have the decision quashed and her appealconsidered by the Authority.(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 itsown internal 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? It issufficiently clear Ms Taylor is challenging this decision, not only the29 September 2016 decision. Edwards J identified fettering discretionas a potential ground of review. Ms Taylor put it somewhat differentlyin the amended statement of claim. But her memorandum of22 October 2019 effectively makes that claim in submitting theMinistry was wrong to reapply the 15 per cent methodology whichhad been set down for an earlier period and specific amount of usage.(Footnotes omitted)[13] The case came before Palmer J again for callover on 7 November 2019. In hisMinute of 8 November 2019, Palmer J records:[4] Ms Taylor disagrees with my 24 October 2019 minute about what theissues are in her statement of claim. She has now filed an "amended updatedsummary of decisions subject to challenge" and a further "final amendedstatement of claim", both dated 4 November 2019. The summary of decisionssubject to challenge derives from Fitzgerald J's directions in a minute of22 November 2018. The final amended statement of claim says it is "inaddition to the statements of claim already filed". The Crown considers issuesraised in Ms Taylor's latest amended statement of claim and amendedsummary of challenged decisions are outside the scope of the issues identifiedin the 24 October 2019 minute. It wants to know to which statement of claimit has to plead. Ms Taylor initially said "all of them" but, when pressed,identifies her latest "final amended statement of claim", of 4 November 2019.[14] Justice Palmer directed the Ministry to prepare a statement of defenceresponding to the statements of claim of 19 September 2019 and 4 November 2019having regard to the summaries of decisions to be challenged dated 23 October 2019and 4 November 2019. However, the Judge stated that the issues he identified in hisMinute of 24 October 2019 are the issues to be determined at the hearing, unders 14(2)(a) of the Judicial Review Procedure Act 2016. He added:[5] No doubt, at the substantive hearing, the parties will make their ownsubmissions about the issues I identified, which the Judge at the substantivehearing can consider.[15] Justice Palmer set the hearing date as 24 April 2020 and made a detailedtimetable order.[16] By Minute dated 4 February 2020, Palmer J addressed "points that arise fromthe minor deluge of memoranda filed in advance of [the hearing date], in order thatthe hearing may proceed more smoothly".[17] Justice Palmer noted that the close of pleadings date was 20 December 2019.On 19 December 2019, Ms Taylor attempted to file, electronically, an amendedstatement of claim and then a hard copy on 23 December 2019. The registry returnedthe hard copy version and Ms Taylor filed an application that the amended statementof claim be accepted. Ms Taylor had also re-filed another copy of the amendedstatement of claim, dated 17 January 2020, which the registry received on 23 January2020. Justice Palmer gave leave for the copy of the amended statement of claimreceived on 23 January 2020 to be filed and directed it would be the version whichwould be the subject of the proceeding.[18] Justice Palmer also recorded his understanding that the only outstandinginterlocutory application to be dealt with in a hearing scheduled for 10 February 2020was an application by Ms Taylor for leave to apply for summary judgment against theAuthority and the Ministry.[19] It fell to Woolford J to preside at the hearing on 10 February 2020. In hisMinute, Woolford J records Ms Taylor was not in a position to proceed with herapplication for summary judgment. Ms Taylor pointed to an application for discoverywhich she had made on 17 January 2020 and in respect of which she had not yetreceived the documents sought. Ms Taylor also considered the Ministry needed to filea statement of defence to her current amended statement of claim before she couldargue her summary judgment application.[20] When Woolford J pointed out there would be no time for a separate summaryjudgment hearing before the substantive hearing scheduled in April, Ms Tayloraccepted that her summary judgment application would not proceed.[21] I note that Ms Taylor had previously filed a notice seeking leave to discontinueher claim against the Authority. The Authority and the Ministry consented and leavewas granted by Woolford J accordingly. That left the Ministry as the sole remainingrespondent.[22] By Minute of 1 April 2020, Lang J directed the hearing would proceed by wayof telephone.[23] On 3 April 2020, Ms Taylor applied for the hearing to be adjourned.Essentially, she said she was not ready for a number of reasons including lack of accessto the Court file and unsatisfactory discovery. The Ministry opposed the application.[24] By Minute of 7 April 2020, Lang J said:[2] Having reviewed the file I consider it is important that the proceedingbe disposed of as soon as possible. For that reason I confirm that the fixturewill proceed on 24 April 2020. The Judge will be present in the courtroom inAuckland with a Registrar, but counsel and Ms Taylor will attend by way oftelephone. The Registrar will make contact with Ms Taylor and counsel forthe respondent by telephone at 10 am on 24 April 2020.[25] On 21 April 2020, Ms Taylor again applied for an adjournment. Her groundsincluded that the Covid-19 lockdown meant that she could not leave her home tocomplete the common bundle and that appearing via telephone would not permit herto present her case adequately:52.3 I am unable to attend court in person; I am unable to have the caseheard by a jury; I am unable to show the court the workings of thePowerswitch website calculator; I am unable to present the court withany sort of PowerPoint or whiteboard presentation, and I am unableto call witnesses under the current protocols.[26] This was never a jury trial and no witnesses were to be called. The working ofthe Powerswitch website calculator had been described in detail in the papersincluding in the decision of Whata J, the decision of Edwards J and in the documentsfiled by Ms Taylor[27] The next day, 22 April 2020, Ms Taylor filed a memorandum saying she wouldnot take part in the hearing:61. Pursuant to High Court Rules 7.5(3), 7.6(4A)(b), 7.7(2)(b)(c) and9.71, The New Zealand Bill of Rights Act 1990 s27, The HumanRights Act 1993 21(1)(h)(viii)(i), 21(1)(i)(i), and Courts ofNew Zealand: High Court: COVID-19 Protocol, 9 April 2020, 8 April2020, Update as at 2 April, 2 April 2020, 25 March 2020, and18 March 2020, I advise that I will not be available to take part in atelephone conference of the substantive matter at 10am on 24 April2020, as the timing and manner of the hearing as set down is in breachof my human rights.5 Interlocutory application for orders for adjournment and timetabling, dated 21 April 2020.6 Memorandum of applicant, dated 22 April 2020.2. I will be available once New Zealand returns to Level 1 of the Covid-19 Regulations and I am able to view the file so that I can properlyprepare the common bundle.3. I anticipate that I will need approximately 4 months of research time(the amount allowed by Palmer J in his original timetabling) betweenthe country's return to Level 1 and my viewing of the file, and theproduction of the common bundle.[28] I considered the hearing should proceed. A hearing by telephone was necessarybecause of the Covid-19 Level 4 restrictions. If the potential problems identified byMs Taylor in her application of 21 April 2020 proved to be real and significant thensteps could be taken to address them, including adjourning the hearing part-heard.[29] Having received Ms Taylor's 22 April 2020 memorandum, and on the sameday, I directed the registry to advise Ms Taylor and counsel for the Ministry that thehearing would proceed. Ms Taylor, as I have said, did not appear.The issues[30] Like Edwards J and Palmer J, I have difficulty identifying justiciable issues onjudicial review because of the way Ms Taylor has expressed her claims. In her"Statement of Claim (Supplementary and Updated) (Re-Filed)" (filed on 23 January2020 and accepted for filing by Palmer J), Ms Taylor says:This claim does not replace my further amended statement of claim of the19 September 201[9] and the final statement of claim of 4 November 201[9],and is to be attached to them.[31] I have read those documents and Ms Taylor's summaries of decisions to bechallenged dated 23 October 2019 and 4 November 2019.[32] I have sympathy for Ms Taylor. She is a beneficiary with physical disabilitiesaged in her 70s. She regards the Ministry as an indifferent bureaucracy which will notlisten to her. I do not discount the significance to her of even one or two dollars aweek of income. Further, Ms Taylor has tackled the challenges of bringing thisproceeding with great industry and tenacity. But, the Ministry is entitled to know thecase against it and to know what to respond to. The Court is entitled to a coherentclaim that identifies justiciable issues and the relief sought. In short, Ms Taylor isbound to comply with the High Court Rules which regulate the form and content ofpleadings. Ms Taylor's documents do not comply with the High Court Rules and donot coherently identify justiciable claims and the relief sought.[33] If it were not for the following, I would strike out Ms Taylor's claims forbreach of the High Court Rules:(a) The judgment of Edwards J in which the Judge declined to strike outall of Ms Taylor's claims against the Ministry because the Judgediscerned possible grounds for judicial review which might bejusticiable if pleaded adequately;(b) Justice Palmer's identification of issues that he considered should beheard;(c) The Ministry has filed a statement of defence, and submissionsaddressing Palmer J's formulation of the issues.[34] I discern that much of Ms Taylor's documentation relates to her dissatisfactionwith the decision of the Ministry of 29 September 2016 to remove her additionalpower costs from the calculation of her Disability Allowance payment on the basisthat Ms Taylor was not using more electricity than the single 'normal' group she wasbeing compared with in the Powerswitch calculator. However, the Ministry quicklyacknowledged it had made an error and reassessed Ms Taylor's entitlements inaccordance with the methodology upheld by Whata J. Therefore, the decision of29 September 2016 is spent. It has no effect on Ms Taylor. It does not matter that thedecision might have failed to address all of Ms Taylor's arguments on the use of thePowerswitch calculator. If the process by which the Ministry consulted withMs Taylor prior to making its decision of 29 September 2016 was flawed, that doesnot provide a ground for judicial review either. The decision of 29 September 2016was acknowledged to be wrong and was superseded by the Ministry's October 2016decision.[35] In my view, it is the October 2016 decision which can be examined on judicialreview. I adopt Palmer J's formulation of the issues:Did the Ministry's decision, communicated on 31 October and 22 November2016, applying the 15 per cent methodology, overlook relevant considerations,take into account irrelevant considerations or fetter its discretion? Inparticular, did the Ministry fail to follow its own internal procedures, becausethe 15 per cent methodology had not become part of its MAP process and didit fail to make allowance for daily line charges and assume prompt paymentof power bills?Discussion[36] A focus of Ms Taylor's complaint about the October 2016 decision is that it iswrong. An outcome can be relevant in judicial review if it is based on an error of fact,or if it is so perverse it cannot be allowed to stand. Nothing in the evidence establisheseither ground of relevance. The Ministry applied the methodology approved byWhata J.Relevant considerations[37] The Ministry was obliged to consider matters relevant to the exercise of itspower to determine Ms Taylor's benefit entitlements. Specifically, the Ministry hadto correctly determine the extent to which Ms Taylor has "additional [power costs] ofan ongoing kind arising from [her] disability".7[38] I accept the following submission from Mr Bryant:842. Pursuant to the Act the Ministry must determine the extent to whichthe individual circumstances of a person with a disability result in thatperson incurring power costs which exceed those of a person withouta disability or health condition. However, the Act does not specifyhow an applicant's additional power costs must be calculated. It isMs Taylor's individual circumstances that are relevant to theMinistry's decision.[39] I have read the affidavits of Ms Jennifer Allan filed by the Ministry. I acceptMr Bryant's summary of the Ministry's method as accurate:7 Social Security Act 1964, s 69C(2A)(a).8 Submissions of the respondent, dated 16 April 2020.43.1 The Ministry compared the total cost of Ms Taylor's power usage withthe appropriate range of power costs on the Powerswitch website.This resulted in the removal of Ms Taylor's power costs from herdisability allowance costs (as communicated in the September 2016decision).43.2 The Ministry considered the information available to it at the timeabout Ms Taylor's level of disability and her need for additionalpower.43.3 The Ministry considered the application of the Authority's 15% oftotal power usage methodology which Whata J stated "involvedidentifying [Ms Taylor's] specific needs and fixing an amount byreference to them".43.4 Having taken into account Ms Taylor's circumstances, in particularMs Taylor's failure to evidence any change in circumstances since theAuthority's April 2015 decision, the Ministry considered whether adeparture from the 15% of usage methodology was justified.[40] The reference to "Ms Taylor's failure to evidence any change incircumstances" is important. If Ms Taylor had provided the Ministry with evidence ofa change in her circumstances which might affect the calculation of her entitlementsthen it would be an error for the Ministry not to take them into account.[41] There are three documents relevant to this issue:(a) The letter from the Ministry to Ms Taylor dated 31 October 2016 inwhich the Ministry advised Ms Taylor of the outcome of the review ofher Disability Allowance and Temporary Additional Support. The lettercontained this paragraph:Please tell us straight away about any changes in yourcircumstances that could affect your payments, such asIncome or living arrangements, so we can make sure you arereceiving the right payments. You can find examples of whatcan affect your payments in the 'general information' sectionat the back of this letter.(b) The Ministry's letter of 22 November 2016 to Ms Taylor advising herof the outcome of the Ministry's internal review of the decision set outin its letter of 31 October 2016:Your application for a Review of Decision.We have completed an Internal review of the decision toreassess your allowable costs for our Disability Allowance astotalling $102.83 per week resulting in a Disability Allowancepayment at the maximum rate of $61.69 and a TemporaryAdditional Support payment of $60.67 per week.We found that the decision needs to be changed. This meansthat we have now reassessed your allowable costs for ourDisability Allowance as totalling $106.75 per week resultingin a Disability Allowance payment at the maximum rate of$61.69 and a Temporary Additional Support payment of$64.49 per week. This correction was made to align thedecision with the recent decisions of the Social SecurityAppeal Authority, High Court and Court of Appeal.As you have already indicated that you do not consider thatthis change would settle the matter your review applicationwill continue to the Benefits Review Committee for a hearing.You will need to show that there has been a change in yourcircumstances which makes the assessment in power costs inyour current situation different to your situation as dealt within the Social Security Appeal Authority, High Court and Courtof Appeal rulings.Included with the letter was a copy of the Ministry's report to theBenefits Review Committee. The report, which is comprehensive,contains the following paragraph:The Applicant has not established any change in hercircumstances which would suggest that her situation nowdiffers from her situation when the Social Security AppealAuthority, High Court and Court of Appeal decisions aboutthe calculation of her Disability Allowance extra power costswere made.At the conclusion of the report there is the following passage:Until the Applicant provides the verification of power costs asrequested which would enable the Ministry to follow thedirective of the Social Security Appeal Authority, the HighCourt and the Court of Appeal in assessing DisabilityAllowance extra power costs in the Applicant's case theMinistry can only estimate these costs.(c) In a letter dated 22 June 2017 to the Benefit Review Committee, theMinistry advised it had received further submissions from Ms Taylor.The letter summarised the issues raised by Ms Taylor. The lettercontains the following passages:The Ministry further noted that the Social Security AppealAuthority had recently assessed the extra power cost for theApplicant at 15% of total power costs and this decision wassubsequently upheld by the High Court who at [35] gave thebasis for the 15% calculation, The Ministry considered that asthe Applicant still lived alone at the same address, there wouldbe no substantial change to her circumstances, so anassessment of her extra power costs at 15% of her total costswas still appropriate. The Ministry therefore changed theassessment of the cost of extra power/heating from $0 to$3.92. This was based on the same incomplete evidencewhich the Applicant provided for the original assessment. TheMinistry stated that this position may not be correct, and thatthe Ministry would reassess this position once the Applicantprovided the evidence needed.The Applicant however requested that the decision continueto the Benefit Review Committee because she does notconsider this outcome to reflect the true costs of her extrapower usage. She has stated in submission 3 on page 7 thather cost of extra power should be assessed at $5.50 per weekor $5.83 per week, and in submission 5 on page 11 that hercost of extra power should be assessed at $5.50 per week.The Applicant has stated that her circumstances have changedfrom the time of the Social Security Appeal Authority hearing,In submission 3, page 2 the Applicant has stated that herpower use has increased by 9.6%. In submission 4, page 3 andin submission 5, page 5 she states that the change is due to nolonger being able to turn her hot water heating off during theday. As far as the Ministry is aware, the Applicant hasprovided no proof of this. As the Applicant has herselfrecognised in submission 4 on page 90, verification isrequired if an expense has increased.As noted above, the Benefit Review Committee is required toreconsider the decision being reviewed by considering howthe evidence of the Applicant's circumstances aligns with therequirements of the Social Security Act 1964.[42] Ms Taylor does not allege she provided the Ministry with evidence of a changein her power usage (as opposed to assertions) which should have resulted in a changedoutcome. As I have said, much of her focus is on the earlier decision of September2016.[43] The Ministry has an internal document called Manuals and Procedures (MAPor MaP). It is a guidance document and contains a seven-step formula for assessing aperson's additional power costs arising from their disability. The formula compares aperson's actual power usage to an estimate obtained from Consumer New Zealand'sPowerswitch website of the normal power usage of a similar sized household.[44] Ms Taylor argues that the Ministry misused the MAP in calculating her powerusage. Ms Taylor also appears to argue that use of the MAP is compulsory and so theMinistry was obliged to use it properly. Therefore, the 15 per cent calculationmethodology approved by Whata J and used by the Ministry in its October 2016decision was not available to the Ministry.[45] Section 69C of the Social Security Act 1964 confers on the chief executive adiscretion to grant a Disability Allowance. There is no obligation on the Ministry toapply the MAP guidance formula. It is one method of calculating a DisabilityAllowance. It is a method the Ministry found inappropriate for use in Ms Taylor'scase. I respectfully agree with Whata J as to the status and operation of the MAP:[34] This complaint also has insurmountable hurdles to overcome.First, the Authority is not expressly bound by the legislation orregulation to follow the MaP specified process. Second, as noted by therespondent, the MaP is an internal Ministry guidance document to assistMinistry staff. It does not purport to bind the Ministry to the outcomeof the MaP procedure and so does not give rise to any legitimateexpectation that it will be followed and the allowance set by referenceto Step 4. Third, Step 7 of the MaP process envisages that there mayneed to be discussion about the outputs of the Powerswitch assessmentto ensure that they are realistic. Fourth, and in any event, the Authorityidentified the outputs of the Step 4 Powerswitch assessment andrejected them, for cogent reasons, including those identified byMs Taylor (e.g. inputting actual usage to establish an estimate fornotional household equivalent).(Footnotes omitted)[46] Ms Taylor cannot argue in this proceeding that the Ministry misused the MAPguidance. That argument could be relevant only to the September 2016 decision.Neither can she succeed with an argument that the Ministry had to use the MAPguidance for its October 2016 decision.[47] I conclude that the Ministry considered the matters relevant to the exercise ofits power to determine Ms Taylor's benefit entitlements.Irrelevant considerations[48] The Ministry was obliged not to consider matters irrelevant to the exercise ofits power to determine Ms Taylor's benefit entitlements. Ms Taylor criticises theMinistry for applying the 15 per cent of total usage methodology when calculating heradditional power costs in October 2016. Ms Taylor considers the previous decisionsof the Authority and Whata J to be irrelevant to the Ministry's decision.[49] In my view, the Ministry had to take into account Whata J's decision. Thatdecision upheld the methodology applied by the Ministry in its previous assessmentof Ms Taylor's allowances. The passages I have quoted at [41] from the Ministry'sletters show that the Ministry was aware the methodology would need to be revisitedif Ms Taylor showed evidence of a change in her circumstances. Since she did not, itwas not irrelevant to consider the previously approved methodology should continueto apply.Fettering[50] In deciding Ms Taylor's entitlements the Ministry was exercising a discretion.9The law is that a decisionmaker must not unlawfully fetter their discretion conferredby statute. In other words, a decisionmaker must not apply a rigid approach that leavesno room for judgment or the exercise of their discretion. Consistent with naturaljustice, a decisionmaker must be ready to hear and consider what an applicant has tosay.[51] Ms Taylor, going back to her focus on the September 2016 decision, contendsthat the Ministry did not listen to her.[52] Again, the September 2016 decision is not at issue here. The issue is whetherthe process by which the October 2016 decision was made was lawful. The passagesI have quoted at [41] from the Ministry's letters demonstrate the Ministry had notclosed its mind to Ms Taylor's circumstances. It adopted the 15 per cent of total usage9 Social Security Act 1964, s 69C(1).methodology because Ms Taylor did not provide evidence of any change in hercircumstances that should require a different methodology to be applied.[53] I see no error of process, or perversity of outcome, which should lead tojudgment in Ms Taylor's favour.Decision[54] Ms Taylor's application for judicial review is dismissed.Costs[55] If the Ministry seeks costs it must file a memorandum no later than 31 May2020.________________________________Brewer J