TAYLOR v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 1160

TAYLOR v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 1160 [1 June 2016]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV-2015-485-960[2016] NZHC 1160BETWEEN LILLIAN TAYLORAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 19 May 2016Counsel: Appellant in personD Soper and L Kean for RespondentJudgment: 1 June 2016JUDGMENT OF WHATA JThis judgment was delivered by me on 1 June 2016 at 4.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Law, Wellington[1] Ms Taylor appeals by way of case stated against the decision of the Social Security Appeal Authority (the Authority) raising two questions of law which are reasonably self-explanatory:(a) As a matter of law, was it open to the Authority pursuant to the provisions of reg 4 of the Social Security (Temporary Additional Support) Regulations 2005 (the Regulations) and the provisions relating to disability costs contained in s 69C of the Social Security Act 1964 (the Act) to fix the appellant's additional power costs at 15%of her total power use?(b) Was there any evidence to support the Authority's conclusion that the appellant's additional power costs should be fixed at 15% of her totalpower costs?[2] The circumstances of the appeal and the facts of the case determined by the Authority are set out below at [8] – [11].Preliminary issue[3] A preliminary observation is that the questions of law are widely framed and,with respect to the Authority, appear to be an invitation to test the merits of theAuthority's decision. That is not a proper basis for a case stated on an appeal oflaw.1 A perfunctory reference to the enabling discretionary power and an enquiry asto whether there was any evidence do not stand out as obvious candidates forquestions of law.[4] The appellant wishes to amend the notice of appeal to plead that the Authority erred in law on the following grounds:(a) The Authority's failure to properly use the Powerswitch and savingscalculator.1 Harrison v Ministry of Transport CA424/92, 29 March 1993.(b) The Authority's use, in arriving at a figure of 15%, of a method whichis not recognised by law, i.e. not contained in the Authority's Manualsand Procedures (MaP), and was not a method previously used by the Ministry of Social Development (the Ministry) in this case.[5] While these questions face objection from the respondent, they provide someclarity as to the issues before me, although the first issue should be narrowed furtherstill to whether or not the Authority was obliged to use the Powerswitch savingscalculator and, if so, whether it properly used that calculator. The failure to carry outa statutory obligation is a question of law.2[6] The second proposed issue addresses the same underlying claim, namely whether or not the Authority was obliged to adopt a particular method and whether the failure to do so is tantamount to the failure to perform the statutory obligations.[7] I am therefore prepared to approach the appeal on that basis of the questions as stated but narrowed by reference to the issues raised by Ms Taylor.The circumstances of the appeal[8] As recorded by the case stated, Ms Taylor appealed to the Authority in respect of a decision of the Chief Executive, upheld by a Benefits Review Committee, to reduce the amount of additional power included in the assessment of her disability costs. The reduction in her disability costs resulted in a reduction in the temporary additional support payable to Ms Taylor.[9] Additional power costs can be assessed as a disability cost in the assessmentof temporary additional support. The term "disability cost" is defined in reg 4 of the Regulations and 69C of the Act. Those provisions are referred to below at [13]–[15].[10] The Authority issued a decision on 17 April 2015 allowing the appeal.2 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [31].The facts[11] The case stated provides a succinct and helpful statement of facts, namely:[5] The Authority found:[6] The appellant is aged 68 years. She is in receipt of New Zealand Superannuation. In addition she receives Accommodation Supplement, Disability Allowance and Temporary Additional Support.[7] The appellant suffers from Osteoarthritis and Chronic Bronchitis.[8] When the appellant reapplied for Temporary Additional Support in November 2013, the Ministry reassessed her disability costs for inclusion as allowable costs in the assessment of her entitlement. It determined that the appellant did not have any additional power costs and declined to include an allowance for this item. This resulted in the reduction of the Temporary Additional Support payment to the appellant. The Ministry had previously allowed $5 per week for extra power in the assessment of the appellant'sdisability costs.[9] The appellant disagreed with this decision. She sought a review of decision. The matter was reviewed internally and by a Benefits Review Committee. The Benefits Review Committee varied the decision of the Chief Executive and allowed an amount of $0.96 per week for the cost of running a clothes dryer as additional power costs. The appellant then appealed to this Authority.[10] In making its original assessment, the Ministry relied on the Consumer Powerswitch website. According to that website a person in a oneto two person household on the "Anytime with Economy (Low User) Plan"would have an estimated annual cost of power of $1,827. This figure was based on the household having all electric heating and at least one person home during the day. The figure also allowed for a 10% prompt payment discount. A copy of the webpage from the Powerswitch website used by the Ministry was not made available to the Authority.[11] The writer of the Section 12K report noted that the appellant's powercosts had originally been calculated incorrectly. Her actual power costs in the year to 30 July 2013 were $1,845.38 per annum. This exceeded the Powerswitch estimate of $1,827 by $18.38 per annum or $0.35 per week. In effect the Ministry acknowledged that the original assessment was incorrect.[12] It was not clear where the Benefits Review Committee had obtained a figure of $0.96 per week for the running of a clothes dryer. It appeared to be incorrect.[13] The appellant explained that because of her health conditions she has reduced mobility and therefore leads a more sedentary lifestyle. As a result, she needs extra heating. The appellant said that her main source of heating is a heat pump and plug-in electric heaters. She primarily uses her heat pump in the evenings in winter switching it on between 5.00 pm and 7.00 pm and leaving it on until 11.00 pm – 12 am. She would only occasionallyuse it during the day. She uses "spot heating" such as an oil-filled heaterduring the day. In addition, the appellant uses a clothes dryer because she cannot hang out wishing on the clothesline. At the time of the hearing she had home help and her helper was able to hang out her washing for her.[14] The appellant saves power by using a bench top oven and a microwave for cooking and ensuring that she does not fill the jug beyond what she needs. It is her usual practice to turn her water heater off during the day. Her water heater is turned on for approximately two hours a day. The appellant said that she believed the estimated annual usage for a person in her situation is 2,966 kilowatts per annum. The appellant claimed her actual annual usage in the period 1 August 2012 to 16 August 2013 was 4,804 kilowatts and in the period 26 February 2013 to 24 February 2014 itwas 4,670 kilowatt hours. The appellant's advice about these amounts is ahandwritten note. Verification or independent evidence of her kilowatt hours used was not provided. Nor was the Authority clear about how she obtained the figure of 2,966 kilowatt hours for a person in her situation. She provided three pages of information about estimated costs for other power companies but these do not relate to Contact Energy (her power provider), or set out precisely what factors went into obtaining the figures concerned.The Authority's findings[12] The Authority's findings are also helpfully summarised as follows:[15] The Social Welfare (Temporary Additional Support) Regulations 2005 provide that disability costs can be included as allowable costs in the assessment of Temporary Additional Support. Disability costs are defined asbeing "expenses of a kind for which a Disability Allowance under s 69C of the Act would be payable".[16] For Disability Allowance to be paid under s 69C of the Social Security Act 1964, the person must have additional expenses of an ongoing kind arising from their disability. The Authority accepted that the appellant is a person who may need additional power because of her disabilities.[17] The issue was how her additional need for power should be measured. Assessing the amount of any additional power costs a person might have is not a simple matter. Any assessment can only be a best estimate in most cases. The Authority noted that there appeared to be three mechanisms used to estimate additional electricity costs:(i) Using the Consumer Powerswitch website the Ministry look at the average cost for similarly sized households using similar appliances and heating, and compare the costs shownon the website with the beneficiary's actual power costs.That was the mechanism used in this case.(ii) The second mechanism is to enquire about what specific appliances the beneficiary uses and consider how that use might be over and above what a person without the particular disability might consume.(iii) From time-to-time the Ministry have simply agreed that a lump sum per week should be allowed to cover abeneficiary's additional power costs.Each of these mechanisms has problems associated with it.(i) The Consumer Powerswitch website estimate used in this case applied to a one or two-person household. The appellant says that a one-person household will simply not have the same power costs as a two-person household. Since the assessment was first made in her case, the website has begun suggesting that a 10% discount on the estimate figure be made to give a more accurate figure for a one- person household. The Authority accepted that point made by the appellant and agreed that a 10% reduction in thewebsite figure before making a comparison with a person'susage may assist in overcoming this particular issue.(ii) The appellant submitted that the Ministry should compare kilowatt hours used because the consumer may be able to obtain a "deal" or a discount. The Authority accepted that there was merit in the appellant's suggestion but that at somepoint the amount involved would need to be turned into dollars and cents. These would be practical difficulties in doing this. Using the kilowatt figure to obtain a percentagedifference between the beneficiary's use and the average usefor a similar household could be useful.(iii) The appellant says that she is particularly economical in her power use in that she turns her hot water off for most of the day to save on the cost. While the Authority questioned theappellant as to whether or not there was a cost savinginvolved the appellant confirmed that she believed she paysmore when she leaves her hot water heating on all the time.The Authority accepted that using the Powerswitch websiteapparently does not take into account the fact that abeneficiary might make savings in some areas of power usebut not be able to make savings in relation to other areassuch as heating because of their disability.[18] In this particular case, while the Ministry had stated that they used an amount calculated by Powerswitch of $1,827 to make their assessment, inthe appellant's case, they were not able to provide the "screenshot" or aprintout which gave this figure. The Authority was unable to determine precisely what was included and excluded in this estimate to assess how accurate it might be. If the Powerswitch estimate was reduced by 10% assuggested, the estimate would be $1,645. The appellant's costs of $1,845 exceed this amount by $200. It might be appropriate to reduce the estimate by a further 5% for the factors referred to in paras [16](ii) and (iii) of theAuthority's decision. Reduction of the Powerswitch figure by 15% wouldresult in a $249 reduction of the estimate of $1,578. The appellant's costsover and above this figure were $267. The Authority had reservations as to whether or not the figures used in this assessment were correct because they had not seen the webpage material on which it was based.Cost of specific appliances[19] The appellant identified her clothes dryer and heating in the two items for which she needs to spend more on power than might otherwise be the case. The Benefits Review Committee identified the cost of running the clothes dryer as being $0.96 per load. Since the hearing the Ministry haveincreased the amount allowed in the appellant's disability costs to three loadsper week at 99 cents per load.[20] The difficulty about assessing the appellant's additional costs in relation to heating is that the appellant did not describe a pattern of using her heating appliances in a way that demonstrated she used heaters or the heat pump more than a person without her disability.[21] The list of the appellant's monthly power bills set out paragraph 2.7 of Section 12K report tends to show that in the summer months she has very modest power costs and that her costs are higher in the winter. On the other hand the appellant might use her heating more often if she could afford to. The Authority acknowledged that the impact of turning off her hot water would be reflected in her power bills.[22] Using the cost of running specific appliances can be a useful tool in assessing additional costs in some circumstances but because of the variables is not practical in this case.Lump sum[23] In the past the Ministry have on occasions simply agreed that a lump sum of perhaps $50 or $10 per week should be allowed to cover abeneficiary's additional heating costs. An alternative to this would be to assess the percentage of their total annual bill taking into account theperson's disability.[24] There will always be variables which are difficult to quantify in assessing additional power costs. The assessment must be both fair to the appellant and administratively practical. In this case the need to use the clothes dryer is an additional cost only when there is no one to hang out her washing. The appellant has a need for heating and cannot economise on this but she has not described a pattern of use that is out of the ordinary.[25] The Authority considered the most appropriate option was to set apercentage figure based on the appellant's actual costs, her level of disabilityand need for additional power. The Authority assessed the appellant'sadditional power costs to be 15% of her total usage. Fifteen percent of $1,845.38 amounts to $276.80 per annum. The Authority directed theappellant's additional power costs for the 52 weeks commencing on 8November 2013 to be assessed on this basis and included as a disability cost in the assessment of her entitlement to Temporary Additional Support.The Statutory Frame[13] Section 69C(1) and (2A) of the Act confer a power on the Chief Executive to pay a disability in the following terms:(1) The chief executive may, in the chief executive's discretion, grant a disability allowance at a rate not exceeding the amount specified inSchedule 19, to or on account of—(a) any person who is in receipt of a supported living payment, sole parent support, jobseeker support, a youth payment, or a young parent payment, or a related emergency benefit payable under section 61; or(b) [Repealed](c) any person whose income, including the income of theperson's spouse or partner and any New Zealandsuperannuation or veteran's pension payable to the person orthe person's spouse or partner, is less than the appropriate amount in Part 3 of Schedule 31; or(d) the dependent spouse or partner or dependent child of any person referred to in paragraphs (a) to (c).(2A) A disability allowance is not payable to or on account of any person except to the extent that—(a) the person has additional expenses of an ongoing kind arising from the person's disability (subject to section 68A); and(b) the assistance towards those expenses available under this Act or any other enactment is insufficient to meet them.[14] Section 61G(1)–(3) provides for the temporary additional support or TAS. It states:(1) The purpose of temporary additional support is to provide temporary financial assistance within the prescribed limits as a last resort to alleviate the financial hardship of people whose essential costs cannot be met from their chargeable income and other resources, while ensuring that people seeking or granted that assistance take reasonable steps to reduce their costs or increase their chargeable incomes.(2) An applicant is eligible for temporary additional support if—(a) his or her chargeable income is less than his or her essential costs; and(b) he or she has cash assets of not more than the prescribed amount; and(c) he or she meets any prescribed criteria and any other requirements set out in regulations made under section 132AB.(3) Temporary additional support granted to an applicant in accordance with this section and regulations made under section 132AB must be granted—(a) in the prescribed amount; and(b) for the prescribed period.[15] "Essential costs" mean the sum of a person's allowable costs and standardcosts.3 "Allowable costs" are defined by the Regulations as a "regular essential expense", and "essential expense" is defined as meaning an expense that is essential for a person to pay or incur in order to meet their daily living needs and that could not readily be avoided or varied.4 Essential expenses can include "disability costs",5which are:disability costs—(a) means disability-related expenses, being expenses of a kind for which a disability allowance under section 69C of the Act would be payable; but(b) despite paragraph (a), does not include any costs for counselling (including the costs of transport to attend counselling) in excess of the amount paid for that purpose by way of a disability allowance under section 69C of the Act[16] There is no dispute that Ms Taylor qualifies in terms of these provisions for a disability allowance.Ministerial Directions[17] Section s 69C is subject to the Ministerial Direction – Disability Allowance Direction. The relevant directions are:Clause 2. Verification of additional expensesBefore determining whether a person has additional expenses of a kind required by section 69C(2A)(a) of the Act, you must require the applicant to provide written verification that–(a) He or she is incurring the expenses claimed; and(b) The expenses are of an ongoing kind; and3 Social Security Act 1964, s 61G(7).4 Social Security (Temporary Additional Support) Regulations 2005, schedule 2, cl 1–2.5 Schedule 2, cl 1.(c) The expenses arise from the person's disability,–by way of–(d) A certificate from a registered health professional as to the need for the goods or services to which the expenses relate, how that need relates to the person's disability, the expected duration of that need, and the therapeutic value to the person in receiving the goods or services; and(e) Invoices or receipts for payment of the expenses; and(f) Any other verification that you consider necessary or satisfactory.Clause 4. Additional expenses: considerationsWhen determining whether a person has additional expenses of a kind required by section 69C(2A)(a) of the Act, you must consider–(a) Whether the person is incurring ongoing expenses which result from the person's disability, having regard to–(i) The relationship between the disability and the need to incur the expenses; and(ii) The other matters referred to in clause 2(d); and(iii) Whether the person would be incurring the expenses if he or she did not have the disability; and(iv) Whether the expenses or an expense of that kind was being incurred before the disability arose and the reasons for incurring that expense at that time; and(aa) the extent (if any) to which the person's life or health would be put at risk, or the person's disability aggravated, if the person could not receive the goods or services because the expense was not wholly or partly met from a disability allowance; and(b) Whether a person in a similar position who does not have the particular disability would incur expenses of that type or amount; and(c) Whether there are less costly goods or services which might meet the need referred to in clause 2(d); and(d) Any other matters you consider to be relevant.Clause 6. Disability allowance: general justificationWhere you consider that the applicant fulfils the requirements of section 69C of the Act, you must grant a disability allowance only if, having regard to the following matters and the matters in clause 6A, you believe such grant is justified:(a) The assistance that is or might be available to the applicant from other sources to pay the expenses;(b) The matters referred to in clause 2(d); and(c) Any other matters you consider to be relevant.Clause 7. Disability allowance need not be granted in discretionNothing in this Direction requires you to grant a disability allowance if, in the exercise of your discretion you determine such grant ought not to be made.MaP[18] The Ministry produced a guidance document for the purpose of assessing abeneficiary's need for additional support. This document is available on the Ministry's website. It sets out a seven step process. Given the significance attached to it by Ms Taylor, I reproduce it here:Step1Ask the client what additional power costs they are incurring due totheir disability. Does the client have any specific additional power costs thatshould be considered - for example - but not limited to: re-charging a mobility scooter, clothes dryer? Does the client purposely not use appliances or undertakeactivities authorised by their medical practitioner (such as aheater or extra baths) to save their money for other essentialcosts?Step2Are the clients only extra power costs due to running specificappliances, such as a dehumidifier or heater?If no go to step 3.If yes obtain the following for each appliance: wattage of the appliance additional running time per annum access the Appliance running costs proceduresNote not all appliance running costs are listed. Where an appliance isnot listed talk with the client to identify a similar appliance.Complete the following assessment for each appliance to determineadditional power costs: multiply running cost per hour/day by additional runningtime per annum = additional running costs per annum add total annual additional running costs to DisabilityAllowanceStep3Obtain from the client: number of persons in their household power company they are registered with type of plan they have with the power company obtain the clients last 52 weeks power costsNote if the client is unable to provide 52 weeks power costs,calculate an amount from the power costs provided toestimate an annual amount.Step4Access the Powerswitch website to obtain an estimate of'normal' power usage based on a similar sized household.Step5Subtract the Powerswitch estimate from the client's actual usage.Note if the Powerswitch estimate is higher than the client's usage,this figure is NIL.Divide this by 52 to get a weekly figure.Step6Consider the amount calculated in step 5. Discuss with the client theweekly/annual figure from step 5.If this seems a reasonable figure based on discussion with the clientabout their individual circumstances, then use this amount as theadditional power usage to be included in the client's DisabilityAllowance.If the client disagrees or you think the figure is unrealistic,go to step 7.Step7If the client has disagreed or you think the figure is unrealisticdiscuss these points with the client. Why does the client or you think this figure is not realistic? Has the client advised of all their circumstances for thecalculation for additional power?For example: How long has the client been living at these premises? Does the client have any other circumstances that should beconsidered? Are these circumstances related to the client's disability?Taking into account the discussions above and the costs calculated insteps 5 and 7, discuss with the client what a realistic figure foradditional power would be on a weekly basis (if applicable).Add this amount to the client's Disability Allowance asadditional power costsFactsheet[19] The Ministry also produces a factsheet dealing with the disability allowance. It identifies allowable costs, noting that the costs must be directly related to theperson's disability including:Power, gas and heating: for the additional electricity, gas or heating costs that a person has. It is the costs over and above the normal power consumption of similar-sized households.Issue 1: Was it open to the Authority to fix the allowance at 15% of her power use?[20] Ms Taylor contends that the Authority had no proper basis to fix the allowance at 15% for the following reasons (in short):(a) The Authority did not consider or address the appellant's reasons forchallenging the decisions of the lower decision makers;(b) The Authority has not correctly implemented the MaP process;(c) No evidence to support fixing the allowance at 15% of the appellant'sactual use;(d) A reasonable estimate of the appellant's additional disability powerrelated expenses is in the range of 34%-38%;(e) The decision was based on a report that was not received by the appellant until just before the hearing and she did not have an opportunity to comment on its content.[21] I address the MaP process below in relation to the second issue. I turn then to the other main grounds of objection.Reasons for challenging Benefit Review Committee (BRC)[22] Ms Taylor contends her disability allowance was initially wrongly assessed by WINZ using the Powerswitch calculator by (among other things) inputting the wrong information, including her actual usage or cost with the result that it regurgitated an estimate of normal household equivalent usage which is proximate to her actual usage. She says the review by the BRC addressed this error by effectively ignoring it. She appealed to the Authority to have this error addressed and asked the Authority to:(a) Redefine the appeal;(b) Use the most recent power costs (usage) in their assessment for the relevant period;(c) Use the Kwh p.a, rather than the cost in assessing whether a client has used more power;(d) Accept that a one person household is not similar to a two person one, and decrease of increase assessments accordingly;(e) Alter MAP so that clients' power plans and transaction histories arenot required until correct assessments and comparisons have been conducted.(f) Backdate and pay to me any costs found to be owing over the period from 2012 until the present.[23] Ms Taylor claims that the Authority did not address these matters and, instead, embarked on a different, flawed assessment method. She says that in so doing the Authority: failed to have regard to the reasons for her appeal; erred by notconfining itself to addressing those reasons and should have simply employed the Powerswitch calculator using the correct inputs.Assessment[24] The immediate answer to Ms Taylor's complaint is that, as the respondent noted, the Authority was not confined to assessing her entitlement to an allowance by reference to and correcting the alleged errors made by the lower fora.6 It was empowered to assess her entitlement afresh and more importantly exercise a discretionary power to grant an allowance in accordance with s 69(C) and the relevant Ministerial Direction unfettered by the decisions of those fora.7 The substantive answer is that the central issues raised by her appeal were specificallycanvassed in the Authority's decision at [11]–[24] and summarised in the case on appeal at [17]. There is therefore no merit in this complaint.No evidence to support 15%[25] This ground must also fail. The Authority identified the Consumer Powerswitch website discount estimate 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 by Ms Taylor (at [17]) and specifically referred to the additional needs identified by Ms Taylor (at [19]) in accordance with her evidence (see summary below at [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 additional power costs. Plainlythe Authority has assembled the information referred to in the earlier parts of the decision (and as contained in the evidence) to arrive at the 15% figure. That was an assessment of fact and an evaluative judgment available to it that is not otherwise reviewable by this Court on a case stated on a question of law.6 See Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13 at [20]–[24].7 Social Security Act 1964, s 12M.A reasonable estimate[26] As this is an appeal on a question of law, the availability of a reasonable alternative on the facts is not a proper basis for appeal and must be rejected. Ms Taylor, however, emphasised that the decision to fix the allowance at 15% of her power costs was plainly wrong on the evidence. Given the significance of this aspect to her I propose to address it briefly.[27] Ms Taylor's thesis is relatively straightforward: the Ministry should compare the actual kilowatt usage with normal usage by an equivalent household, taking into account her limited usage of hot water. This results (she says) in the following differences:8(a) 35%: being the difference between (a) her actual usage (4803 kw) plus an allowance for notional hot water usage (2058 kw)9 and (b) normal equivalent household usage10 with hot water (5171 kw), namely 1690 kw or 35%.(b) 38%: being the difference between (a) her actual usage (4803 kw) and (b) an equivalent household without hot water (2996 kw) namely, 1837 kw or 38%.(c) 34%: being the difference between (a) her actual usage (4803 kw) and (b) an equivalent household without hot water (2996 kw), plus an allowance to reflect her actual hot water usage (184 kw), namely 1653 kw or 34%.[28] There are two immediate difficulties with this analysis. First, Ms Taylor did not profess to be an expert in such matters so the reliability of her estimates of actual and notional usage is inherently contestable. Second, the notional 30% uplift on her actual use to account for normal hot water use (scenario (a)) or the discounting of the8 I note that in oral argument Ms Taylor identified a further basis for calculation. I have not included it as it falls within the broad frame summarised above.9 Quantified at 30% of Ms Taylor's actual usage on the basis that hot water accounts for about one third of all usage.10 These figures are based on the 10% reduction used by Powerswitch.hot water usage from the notional equivalent household (scenarios (b) and (c)) forcomparative purposes in effect seeks to treat Ms Taylor's savings on hot water usageas if they were an additional expense incurred.[29] This is to be contrasted with the process of isolating an item of additional power usage attributable to a specific disability need. It may be necessary then to identify the actual usage incurred by a notional family with similar usage characteristics to the applicant in order to be able to fairly quantify the disability related additional usage. This is what, in my view, the Authority has in fact done. But without finally deciding the matter, a discretionary power to pay an additional allowance for disability related expenses does not obviously extend to expenditure not in fact incurred, or savings made, by the applicant in terms of standard costs of living.11 I accept that the Authority took into account the "hot water" usage in itsdecision and nothing I say here should be seen as a criticism of its broad approach based on fairness and pragmatism. But that should not be converted to an expectation that such a factor must be determinative of the outcome.[30] Accordingly, I do not consider that the reasonable estimates provided by Ms Taylor demonstrate that the Authority was obviously wrong.Late receipt of report[31] The (allegedly) late receipt of the s 12k report by Ms Taylor does not provide a proper basis for finding material substantive or procedural error where the appeal is on a question of law only. As I have said, the hearing before the Authority revisitedMs Taylor's claims afresh and it is plain on the face of the record that she wasafforded an ample opportunity to make the key points she wanted to make in support of her claim to a higher disability allowance. Notably, the s 12k report in fact identified that the Ministry had erred in its calculation, so was helpful to Ms Taylor (see case on appeal at [11]). Furthermore, Ms Taylor did not appear to seek an adjournment of the hearing so that she could address the s 12k report.11 See Social Secuirty Act 1964, ss 69(2A)(b) and 61G(1).Outcome on issue 1[32] The Authority had an ample basis in law and fact to fix the disability allowance at 15%.Issue 2: Did the Authority fail to apply the correct methodology to calculate the disability allowance.[33] Ms Taylor's central complaints under this heading are that:(a) The Authority did not follow the MaP process, and in particular did not follow Step 4 of that process, namely:Access the Powerswitch website to obtain an estimate of "normal"power usage based on a similar sized household.(b) The Authority wrongly employed a lump sum process.[34] This complaint also has insurmountable hurdles to overcome. First, the Authority is not expressly bound by the legislation or regulation to follow the MaP specified process. Second, as noted by the respondent, the MaP is an internal Ministry guidance document to assist Ministry staff. It does not purport to bind the Ministry to the outcome of the MaP procedure and so does not given rise to any legitimate expectation that it will be followed and the allowance set by reference to Step 4.12 Third, Step 7 of the MaP process envisages that there may need to be discussion about the outputs of the Powerswitch assessment to ensure that they are realistic. Fourth, and in any event, the Authority identified the outputs of the Step 4 Powerswitch assessment and rejected them, for cogent reasons, including those identified by Ms Taylor (e.g. inputting actual usage to establish an estimate for notional household equivalent).1312 Legitimate expectation (in the sense used in orthodox administrative law – see Philip A JosephConstitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at 1029–1041 and the authorities cited therein) was not raised directly by Ms Taylor. But her argument employed the notion that applicants refer to this Ministry guidance and assume that they their entitlements will be set by reference to the MaP process.13 See [16] of the Authority's decision.[35] Ultimately, the Authority examined a number of options for assessing MsTaylor's needs, including by reference to the Powerswitch website estimate, anddecided to take an approach that is both fair to Ms Taylor and administratively practicable. This involved identifying her specific needs and fixing an amount by reference to them. This assessment was based on 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 available because she cannot hang her washing on the clothesline herself.(c) She did not need heating in the summer months and that her use of heating was seasonal.(d) When she did turn on the heat pump it was usually in the evenings. Furthermore, she kept warm with a blanket until she felt the need to turn it on.(e) The heating would be turned on for around four or five hours from 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 was particularly miserable".Lump sum[36] Ms Taylor makes a further complaint that the Authority was not empowered to make a lump sum assessment. But as I think Ms Taylor conceded, the Authority did not make a lump sum assessment in the sense precluded by the reg 15 of the Regulations. Rather, the Authority aggregated the additional costs incurred inrelation to Ms Taylor's disability in fixing the 15% figure. This was an attempt atfinding a practicable solution that was available to it.Outcome on issue 2[37] The Authority enjoys a broad discretion to arrive at a disability allowance that is fair and practicable. It is not required to strictly apply the MaP process and in particular Step 4 in every case. Provided that there is a basis for the assessment on the available evidence having regard to relevant considerations, and the conclusion is not obviously wrong, then it will be beyond challenge in this Court by way of case stated on a question of law.Result[38] The answer to both questions of law stated at [1] is Yes.[39] Moreover, the Authority's decision was cogent and supported by the available evidence of additional usage as noted at [33]–[37] above.[40] For completeness, nothing in this decision should be seen to be suggesting that the Powerswitch methodology is inherently flawed and that a more qualitative approach is to be preferred. It will be for the Ministry to determine whether in the given case the Powerswitch website provides the appropriate and realistic method for assessing additional electricity consumption.Costs[41] The respondent acknowledged during the hearing that if he is successful, no costs will be sought against Ms Taylor. Accordingly, I order that costs lie where they fall.