LYNN PATRICIA FONG V SECRETARY FOR WAR PENSIONERS HC WN CIV-2012-485-67

LYNN PATRICIA FONG V SECRETARY FOR WAR PENSIONERS HC WN CIV-2012-485-67 [7 August 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-67[2012] NZHC 1618UNDER the Judicature Amendment Act 1972AND UNDER the War Pensions Act 1954IN THE MATTER OF a decision by the Secretary for WarPensions dated 13 October 2010BETWEEN LYNN PATRICIA FONGPlaintiffAND SECRETARY FOR WAR PENSIONERSDefendantHearing: 18 June 2012Counsel: G D S Taylor for PlaintiffA J Williams and D L Harris for DefendantJudgment: 7 August 2012In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 10.30am on the 7th August 2012.JUDGMENT OF WILLIAMS JSolicitors: Gillespie Young Watson, Solicitors, Lower Hutt Crown Law, WellingtonIntroduction[1] Lynn Fong is the plaintiff. She is the widow of Tairoa Fong. For ease of reference, I will call them Lynn and Tai, the names by which they are generally known.[2] Tai was a soldier. Before he died, he was in receipt of a permanent war disability pension and a veteran's pension. After Tai's death, Lynn applied toVeterans' Affairs New Zealand (VANZ) for a surviving spouse pension (SSP). Her application was refused on four separate occasions essentially because, according to the Secretary for War Pensions, Lynn and Tai had been living apart at the time ofTai's death. They therefore lacked the necessary financial and emotional mutualityto justify Lynn being granted an SSP.[3] Lynn applies for judicial review of that decision.The Surviving Spouse PensionThe SSP's purpose[4] The system of benefits for veterans and their spouses is contained in the War Pensions Act 1954 (WPA). In 2010 the Law Commission reviewed the WPA. The Commission analysed the SSP and consulted stakeholders, receiving extensive submissions. In its Report, the Commission described the perceived purposes of the SSP in the following terms:1Through analysis of this entitlement and receipt of comment in submissions and consultation, it is apparent that people consider that the Surviving Spouse Pension has several purposes. Firstly, the pension is a compensation payment for the loss of the veteran where the veteran has died prematurely because of service. Secondly, the pension is seen as financial support for the spouse or partner because she or he will be in a worse financial position as aresult of the veteran's death. Thirdly, it appears that many consider the1 Law Commission A New Support Scheme for Veterans; A Report on the Review of the War PensionsAct 1954 (NZLC R115, 2010) at 75-78.pension to include an element of reward for the spouse or partner for years of caring for a veteran who has been significantly disabled.None of these purposes is to be found explicitly stated in the WPA. The second and third of them may be seen as potentially applicable in this case.Entitlement: s 48[5] The SSP is provided for in s 48 of the WPA. That section provides:Pension to surviving spouse, surviving partner, or child of deceased member whose death not attributable to serviceNotwithstanding anything in this Act, where any member of the forces has died, whether before or after the commencement of this section, from any cause not attributable to his or her service as a member of the forces, and–(a) at the date of his or her death the member was in receipt of a permanent pension under this Part at a rate not less than 70% of the maximum rate of pension that would be payable in respect of his or her total disablement; or(b) at the date of his or her death the member was not in receipt of such a pension, but the Secretary is of the opinion that, if he or she had not died, he or she could have been granted a permanent pension at a rate not less than 70% of that maximum rate,–the Secretary may, in the Secretary's discretion, grant a pension to or onbehalf of the surviving spouse, surviving partner, or any dependent child or dependent children of the member in all respects as if the death of the member were attributable to his or her service.[6] Tai qualified under s 48(a) because he received the maximum pensionentitlement as at the date of his death. Thus, in Lynn's case the effect of s 48 is to create an entitlement to an SSP at the statutory rate unless the modifying or disqualifying circumstances contained in ss 32 to 35A and s 77 apply.[7] The Secretary of Veterans' Affairs, Richard Ottaway, described the way inwhich VANZ approaches claims under the Act as a "benevolent process". He said:While the onus is on the applicant to assure the Secretary or the claims panel that their application has merit, if their application is incomplete and further information is required to be provided, applicants are advised in writing.[8] A feature of this "benevolent process" in relation to Lynn, has been theSecretary's multiple reconsiderations of her application – four in total from July 2010 to October 2011.Exclusions: ss 32-35A and 77[9] Section 32 relates to additional entitlements in relation to dependent children. Section 33 together with Schedule 4 sets the SSP rate for New Zealand residents at$149.43 "in every case". Section 34 provides that an SSP is not payable if theparties marry or enter into a civil union or de facto relationship within one year prior to the veteran's subsequent death and, at the time, there was no reasonable expectation that the deceased veteran would live for a year. This provision is designed to prevent relationships of convenience from generating SSP liability for the Crown. Section 35 provides for the SSP to cease if the surviving spouse remarries or enters into a civil union or de facto relationship. This disqualification is not automatic however. The Secretary retains a discretion under s 35 to continue payments for up to two years or to pay the surviving spouse a lump sum notwithstanding the new relationship. In addition, s 35A allows the SSP to be reinstated in favour of the surviving spouse, if the new and disqualifying relationship referred to in s 35 ends within five years.[10] The central provision in relation to the issues in this case is s 77, entitled"Conjugal status for purposes of pension or allowance". That section provides:For the purposes of any claim for any pension or allowance under this Act, or of reviewing any pension or allowance already granted, or of determiningthe rate of any pension or allowance, the Secretary may, in the Secretary'sdiscretion,–(a) [Repealed](b) [Repealed](c) regard as a single person any claimant or pensioner who is married or in civil union and who is living apart from his or her spouse or civil union partner–and may, in the Secretary's discretion, grant a pension or allowance, refuseto grant a pension or allowance, or terminate, reduce, or increase any pension or allowance already granted, accordingly.Discretions[11] Thus, for our purposes, if the Secretary is considering whether to grant an SSP to a surviving spouse, he (as I have indicated, the Secretary is a man at the moment) can in his discretion:(a) treat a pensioner who is living apart from his or her spouse at the relevant time as if that person is single; and(b) may, again in his discretion, refuse to grant an SSP to any surviving spouse or reduce the SSP accordingly.[12] In this case, the Secretary was required by s 77 to decide three things. First, whether as a matter of fact Lynn and Tai were living apart when Tai died. Second, if they were living apart, whether he should treat Lynn as single for the purposes of any entitlements under the Act. And, third, if she was to be treated as single, whether that should lead him to refuse to grant her an SSP or to reduce her entitlement.[13] But first, the background facts.The factsThe relationship[14] Tai joined the army in 1962. He married Lynn in 1964 and they had four children. He was discharged from the army in 1974 having (among other things) served for a year in Vietnam and attained the rank of sergeant.[15] The marriage struck difficulties on Tai's return from Vietnam at the end of1971. The couple separated in 1973 but reconciled in 1975. Difficulties within the relationship continued – difficulties which Lynn put down to Tai's experience inVietnam, a view corroborated subsequently by mental health experts. Lynn wrote a background document entitled "Silent Screams of a Military Wife" after Tai's deathto provide further background to VANZ about the circumstances of her and Tai'srelationship. She described married life after Vietnam in these terms:When he came home from the war he was not the same man. He started toabuse me and our children. Tai's treatment of [our son] Neil was horribleand cruel. He often used him as a punching bag. During one of Tai'smoods, he opened the fridge and threw its contents at us, he then picked up the fridge and threw it as far as he could. The children and I ran and hid outside till he fell asleep.[16] Lynn recorded that after 2000, the relationship again fell into difficulties. She said:[After 2000] our relationship was very tense, we were not getting along together. I tried to move to Clipper Street with [my son] Neil and his partnerbut that didn't work out ... Tai moved our caravan to the backyard of our other house [situated next door] at 65 Sunny Grove. I was living between the caravan which was my safe house and the main house....After a family reunion trip to Australia [after 2005] I woke up one day andtold myself that enough is enough and I'm going to live in Tauranga. Taidecided he still wanted to live in Wainuiomata helping the community.This decision was made partly because of the third person in our marriage. This was Missy the lady who lived across the road ... She became resentfulof me because she wanted to be Tai's wife and she didn't like the fact that Iwas his wife.[17] At the end of 2006, Lynn moved to Tauranga. Tai remained in Wainuiomata.Tai's pension applications and reviews[18] On 2 July 2001, Tai applied for a war disability pension (WDP) as he was suffering, he said, from post-traumatic stress disorder (PTSD). He was assessed by a clinical psychiatrist, and found to indeed be suffering from PTSD. He was granted the full WDP. In August of the same year Tai applied for, and was granted, aveteran's pension, disability allowance and living alone payment.[19] In the application form for disability allowance Tai confirmed that he did not have a partner and that he was "living apart/separated". In the application for aliving alone payment, he confirmed that he was living alone and crossed out thesection dealing with partner details. I was advised by counsel that, for various reasons, the living alone rate is in fact higher than the married rate.[20] In the six years before his death, Tai's entitlements were reviewed six times in accordance with normal procedure. Each time Tai confirmed on the review form that he was not living with anyone in a marriage or marriage-type relationship.[21] Tai passed away suddenly and unexpectedly on 18 June 2007.History of VANZ decisions in response to Lynn's applicationLynn applies for SSP and is declined for the first time[22] On 2 July 2007, Lynn made enquiries at the Wainuiomata office of WINZabout entitlements following Tai's death. She did not however at that stage apply foran SSP. She said she was told by the staff member who interviewed her that she would not qualify. According to the relevant WINZ electronic file, a file note of the exchange dated 2 July 2007 was prepared by a WINZ official named Michelle. It recorded that Lynn advised that she and Tai had been separated for two years and she was now living in Tauranga. Lynn (having now seen that filenote), denies ever having said anything of the sort.[23] Three years later in July 2010, Lynn lodged her current application. The Secretary declined it by letter dated 19 July 2010, advising that:(a) the Fongs had been separated for two years prior to Tai's death;(b) Lynn was living in Tauranga; and(c) Tai was receiving the veteran's pension at the living alone rate.[24] The letter noted that despite declining her application, the Secretary could still award Lynn an SSP if the circumstances in sections 3.4 and 3.5 of the relevant VANZ policy statement were satisfied. The policy statement provides as follows:3.4 If the veteran and/or the claimant were in receipt of the single rate of benefit as a result of a previous declaration that he or she was single, the claimant can not be considered to be the spouse or partner of theveteran after the veteran's death for the purpose of Surviving SpousePension entitlement except in exceptional circumstances.3.5 In a case of exceptional circumstances, the Secretary for War Pensions may determine to award the Surviving Spouse Pension despite the veteran and/or the claimant having been in receipt of asingle rate of benefit prior to the veteran's death. For this decision tobe made, the following exceptional circumstances should exist:The veteran suffered from psychiatric, psychological, mental health or other behavioural disabilities which had been deemed to be attributable to or aggravated by service;The veteran's disabilities resulted in the veteran physically,mentally, emotionally or otherwise abusing the claimant and/or their children, and as a result the veteran and the claimant chose to live apart; andSufficient factors indicating the existence of financial interdependence and emotional commitment were present in the relationship between the veteran and the claimant.[25] Thus, because Tai was receiving his entitlements on a living alone basis, the policy provided that Lynn could only receive an SSP if the three cumulative requirements of the exceptional case category were satisfied. For present purposes, those requirements were that:(a) Tai suffered from service related PTSD;(b) this had caused him to be abusive to his family which in turn had led Lynn to live apart from Tai; and(c) despite this, there remained financial interdependence and emotional commitment between them.[26] I will come back to consider these policies further below.Lynn provides new material[27] It was in response to the 19 July 2010 decision that Lynn provided extensive additional information to VANZ focussed this time on the policy's three stepexception. The documents she provided were intended to support her argument that the difficulties in her relationship with Tai were a result of service related PTSD and that despite those difficulties, the relationship endured at some level. The documents included (among other things):(a) her own lengthy statement (to which I have already made reference)entitled "Silent Screams of a Military Wife" outlining Tai's abusivebehaviour following his return from service. The Secretary subsequently refers to the extracts cited earlier from this document as a further basis for declinature;(b) a letter from Anthony Isaac, tenant at 65 Sunny Grove (the Fongs'investment property next door to the marital home). It provided in part:...Around October 2000 Tai had approached me about Lynn staying in one of the three rooms, as at the time I was living alone. He had told me he had no intention of getting a divorce.Some months later I gained custody of my son, and my girlfriend then had moved in so to give us some space, Lynn offered to move their caravan out the back. Tai also put a gate in the fence, so Lynn could come and go. In late 2006 Lynn moved to Tauranga.(c) a letter from a friend named Wayne Davidson-Corrin. It provided in part:...Two days after Queens Birthday weekend in 2007 Tai came down to mow my lawns and told me that would be the last time he could do them as he was selling his house and moving to Tauranga ...(d) a copy of Tai's will dated May 1992 and associated correspondence. The will left Tai's entire estate to Lynn;(e) a report from Dr Mark Davis, psychiatrist, dated 21 September 2001 confirming that Tai suffered from PTSD and a further report fromDr Davis dated 24 September 2001 to Work and Income Support, War Pensions Unit in Hamilton. (WINZ processed war pension applications until VANZ subsequently took that function over). Dr Davis conducted two interviews with Tai and received a letter from Lynn. He refers to this letter extensively in the report. He confirmedthat Tai's PTSD had a significant negative impact on Tai's closeinterpersonal relationships. There is no mention however of a break up in the marriage or of the couple living apart.(f) a report from Jane Dyne, psychologist, dated 31 July 2002. The report is copied to WINZ Hamilton. Ms Dyne discussed Tai'ssymptoms and problems and concluded in part as follows:... He needs to begin to treat the world as one of peace time not war time and he needs to learn to get back some of his emotional connectedness, so he and his wife can have a more satisfying life. ...Again there is no mention of a break up in the marriage or of the couple living apart.(g) miscellaneous financial transaction records relating to Lynn's personalcheque account for the period 2006 to 2007. These records show occasional expenditure for Tai's benefit or for their joint benefit;(h) certificates of title for properties in Wainuiomata and Tauranga. I notethat the Tauranga property was transferred to Lynn and Tai's jointnames in May 2004;(i) photocopied tickets for Lynn and Tai to attend a Vietnam veterans'reunion in Canberra, Australia on 30 September 2007 – a date threemonths after Tai's death.Second consideration[28] All of this material was reviewed by the Secretary. He issued a second decision on 13 October 2010. This confirmed the original declinature. TheSecretary's letter in part provided:... While you have stated that the relationship at times was abusive, you have not provided any direct evidence to show that both you and Mr Fong agreed to live apart from 2005 as a consequence of his behaviour. Rather it would seem from what you have said in your letter that Mr Fong had been in a new relationship which was a factor in your decision to move to Tauranga. And, while you were the beneficiary of Mr Fong's estate there are insufficient factors to support that an emotional commitment and financial interdependence continued once you had settled in Tauranga. Though there is some evidence that suggests that you may have been re-entering a relationship in the nature of a marriage in the months immediately before Mr Fong's death, section 34(a) of the War Pensions Act 1954 states:The surviving spouse or surviving partner of a member of the forcesis not entitled to a pension in respect of the member's death if–the death of the member occurred within 1 year after the marriage or entry into the civil union or de facto relationship.[29] The Secretary now accepts that this reference to the s 34(a) exclusion ofrelationships formed late in the veteran's life was irrelevant to the circumstances of this case. Lynn and Tai had, of course, been married many years before, so even ifthere had been a late reconciliation, the exclusion did not apply to Lynn's case. Thatleft the arrival of a new relationship for Tai and the lack of financial interdependence and emotional commitment, as the reasons upon which the Secretary relied.Third consideration[30] Lynn appears to have instructed legal counsel shortly after receiving the 13 October 2010 decision. Following further correspondence, the Secretary decided to review the file again. The Secretary reached his decision following receipt of a memorandum dated 1 June 2011 from Corina Herewini, a VANZ official. Two factors were of particular significance to her in that memorandum. Under the heading "Discussion", the memorandum provided:Mr Fong received VP Living Alone Payment from September 2001 until his death in June 2007, thereby Mr Fong held himself out to be single. To accept that Mr Fong was in a relationship with Mrs Fong is to conclude that Mr Fong knowingly committed fraud from 2001 up to the date of his death.Mrs Fong advised MSD on 2 July 2007 that she and Mr Fong had been separated for two years and that she was living in Tauranga. Mrs Fong'slawyer contends in his letter to you dated 14 February 2011 that the separation was temporary. However, no tangible evidence has been provided to support such a contention.[31] The Secretary relied on this advice marking his agreement with it on the memorandum. On the same day he wrote to Lynn confirming continued rejection of her claim.Final consideration[32] Subsequently VANZ retrieved Tai's full file from offsite archives.Apparently there had been difficulty locating it. It had not therefore been before the Secretary when making his first three decisions.[33] With Tai's file now in hand the Secretary decided to review Lynn's claimfurther and (as it turned out) last time. His decision was issued by letter of 20 October 2011. The important part of the letter is as follows:... At the time of his death, you and Mr Fong had been living apart for a number of years. To be eligible for a Surviving Spouse Pension where a married couple are living apart, it needs to be established that although physically separated, other marital obligations normally inherent in a marriage remain intact. In the circumstance where a married couple are living apart and one or both parties intentionally repudiates the obligations inherent in the matrimonial relationship, the marriage may be considered to be at an end.In 2001, when describing his relationship status, Mr Fong indicated that he did not have a partner and was living apart or separated. In 2002, when describing his marital status, Mr Fong indicated that he was not married or living with a person in a relationship in the nature of a marriage. Mr Fong also declared that status in 2002, 2003, 2004, 2005 and 2006. While there is some evidence that indicates a relationship with Mr Fong, I am not convinced that the relationship was that inherent of a marriage. Furthermore, the evidence available to me clearly demonstrates that Mr Fong considered himself to be a single man, separated and living alone. Mr Fong was also financially independent and did not show any commitment to a shared emotional bond. By repeatedly holding himself out to be single, it ismy view that Mr Fong considered the matrimonial relationship to have ended.[34] For completeness, I note that Lynn filed in these proceedings, in affidavit form, a great deal of additional material relating to the apparently significant degreeto which her and Tai's financial affairs were intertwined in the years up to his death.This particularly so in a reply affidavit of May 2012. This material was not before the Secretary in October 2011 and so could not have been in his contemplation at the time he made his final decision. Some of it the Secretary reviewed and in a further affidavit from him, he indicated the material would have made no difference. Other material came later still. But, as the Secretary deposed, claim consideration is a"benevolent process", so it will be necessary to come back to that material at the endof this judgment.Arguments[35] Mr Taylor mounted his challenge on three fronts. He submitted that the Secretary had erred:(a) by imposing an onus on Lynn to prove that she and Tai had arelationship "inherent of a marriage" and that she had to demonstratefinancial interdependence and mutuality of emotional support sufficient to make out the existence of such a relationship; and(b) in treating the s 77(c) WPA test of living apart so that it required neither mutual understanding nor agreement between the couple that they had in fact separated and by wrongly applying to the context of the WPA, High Court decisions under the Social Security Act in construing the meaning of living apart; and(c) by predetermining the issue even before Lynn had made her application in 2010 and refusing to depart from that predetermined view despite cogent evidence that this predetermined view was wrong.[36] The Crown says the Secretary's decision on 20 October 2011 was a reasonable decision in the circumstances. The Crown says the Secretary applied s 77 correctly and considered all of the relevant evidence in concluding that Lynn and Tai were living apart before Tai died. The Crown argued that:(a) the authorities relating to "living apart" under the Social Security Act 1964 (SSA) are applicable under s 77 and they resolved the question in favour of the Secretary;(b) there was no formal onus on Lynn to make out her case. But in practical terms, it was for Lynn to bring forward material known to her (and not known to the Secretary) to assist him in reaching his decision. She had a mere evidentiary onus; and(c) there was no evidence of predetermination or bias, or a refusal to engage fairly and objectively with the evidence brought forward.I will address each of Mr Taylor's three grounds and then address a series of otherissues that, in my view at least, arise for consideration in this case.Ground One: Onus to prove marriage continuing[37] I do not agree with Mr Taylor that the Secretary placed a legal onus on Lynn to prove to him that her marriage continued. I do accept that, if he had he done so, he would have introduced into the benevolent claims process an element of legal formality that is entirely inappropriate. As I have said, a feature of the Act is its tolerance of multiple internally initiated reconsiderations of an application. This is hardly the approach of a process in which the applicant carries a formal legal burden. In truth, claims processes under the Act are best described as inquisitorial and the concept of legal burdens of proof rarely have any useful place in such processes. The same approach was taken in Kerr v Department for Social Development2 – a UK House of Lords decision in a benefits entitlement case. Baroness Hale accepted as longstanding the idea that the process of benefit adjudication is inquisitorial rather2 Kerr v Department for Social Development [2004] UKHL 23, [2004] 1 WLR 1372.than adversarial. She took an essentially practical approach to the question of which side should be responsible for providing what information in benefit cases:3What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it.[38] These principles must apply with particular force in the context of the WPA'sbenevolent process.[39] In Lynn's case, the Secretary was aware that Tai had consistently declared toVANZ for six years that he and Lynn were married but living apart. It is just commonsense for the Secretary to conclude that this presented a significant evidential obstacle for Lynn to overcome if she was to qualify for an SSP. On the face of material before the Secretary, the evidence was running powerfully against her. The Crown was right to argue that the Secretary's attitude was no more than anacceptance that Lynn now had a tactical or evidentiary burden to provide enoughcogent evidence to convince the Secretary that Tai's repeated assertions that he andLynn were living apart should be ignored.[40] I do not think this ground has merit.Ground Two: Did Lynn have to agree or at least understand that the marriage was over?[41] Before turning to the specific issue under this ground, it is necessary to detour into consideration of a preliminary question in relation to the applicability of3 At [62]-[63].case law from the Social Security Act 1964 (SSA) to the circumstances of s 77 of the WPA. This assessment is somewhat more lengthy than I would have wanted, but it is useful also in relation to matters I raise in the last section of this judgment, so I do not feel that it is necessarily time wasted.Living apart under s 63(a) Social Security Act 1964[42] Section 63(a) is the equivalent in the SSA of s 77 of the WPA. The drafting style is similar and the discretions are cast in almost identical terms. It provides:4For the purposes of determining any application for any benefit, or of reviewing any benefit already granted, or of determining the rate of any benefit, or of the granting of any payment of a funeral grant under section 61DB or of any welfare programme approved by the Minister under section 124(1)(d), or of assessing the financial means of any person under section 69FA or Part 4 the chief executive may in the chief executive'sdiscretion–(a) regard as single any applicant or beneficiary who is married or in a civil union but is living apart from his or her spouse or partner;and may determine a date on which they shall be regarded as having commenced to live apart or a date on which they shall be regarded as having entered into such a relationship, as the case may be, and may then in thechief executive's discretion grant a benefit, refuse to grant a benefit, orterminate, reduce, or increase any benefit already granted, from that date accordingly.[43] The Crown argued that the many cases dealing with living apart under s 63 should therefore also apply to questions under s 77.[44] Mr Taylor argued that the social welfare cases had no application in the unique statutory context of war pensions. His argument was:Parliament's intention [in relation to the SSP] focuses on status; if theconjugal status exists, the pension follows.[45] Section 77, he argued, did not require an analysis of the intimate relationship involved.4 Social Security Act 1964, s 63(a).[46] It is, as I indicated, necessary to refer briefly to those social welfare cases and one much earlier divorce case before giving my view as to their applicability.The "living apart" and cohabitation cases[47] The 1958 decision in Sullivan v Sullivan5 sets the scene for the later social welfare cases. In that case, Mr Sullivan sought a divorce under s 10(jj) of the Divorce and Matrimonial Causes Act 1928. He claimed, in terms of that provision, that he and his wife had been "living apart" for not less than seven years as required by s 10(jj) and were unlikely to reconcile. It was admitted that within the seven year period, the Sullivans had engaged in intermittent sexual contact while otherwise maintaining separate lives. The majority of the Court of Appeal held that intermittent sex was not alone sufficient to show that the Sullivans were still living together and maintaining their marriage. As Finlay J put it:6In this state of the law, it seems proper to say not only that one single act of intercourse, taken alone, will not terminate a state of living apart, but that several such acts will not do so, and that the significance of every such act must be determined in the light of the circumstances in which the act or acts took place. Eloquent as those acts are as an indication of the resumption of cohabitation, they must, in the light of their circumstances, be considered from the point of view whether there was at any point of time some reality of resumed cohabitation. It is a question of fact. Kelman v Kelman [1956] NZLR 74. It is this test that it would seem proper to apply to the present case.[48] The more recent case of Excell v Department of Social Welfare7 related to awife's entitlement to the domestic purposes benefit. The focus was s 27B(1)(a) –"living apart from" – and s 27B(2)(b) – "not living together" – rather than s 63 of the SSA. But Fisher J made useful general observations about the nature of"cohabitation" (the reverse, he said, of living apart). He suggested that the law on relationship status has core common elements whether it arises in the context of relationships, relationship property, or social welfare entitlements. His list of core elements was as follows:85 Sullivan v Sullivan [1958] NZLR 912 (CA).6 At 921.7 Excell v The Department of Social Welfare [1991] NZFLR 241 (HC).8 At 248.(a) Cohabitation for legal purposes normally requires both some form of mental commitment to live together as husband and wife and a manifestation of that commitment by conduct. No minimum period is involved. In cases of doubt an inference as to intention will usually need to be drawn from conduct.(b) The conduct in question is concerned not with any single factor but with an aggregation of many. No single factor is enough nor will its absence be fatal. It is the cumulative quality, quantity, continuity and duration of these factors that matters.(c) No list could ever be exhaustive but the indicia include the extent towhich there is a sharing of one dwelling as each party's principalplace of residence, emotional dependence and support, the pooling of labour and financial resources, the sharing of household activities, the provision of domestic services, the provision of financial assistance, the sharing of one bedroom, the sharing of a sexual relationship, the sharing of companionship, leisure and social activities, the sharing of parental obligations, presentation or outsiders as a couple and the execution of emotional and sexual relationships with third persons.(d) A distinction is to be drawn between legal and de facto marriage. A legally married husband and wife have a legal duty to cohabit. Cohabitation ceases only while there is an intention by either spouse to repudiate the obligations inherent in the matrimonial relationship and a manifestation of that intention by conduct. In a legal marriage it is therefore a very short step from physical proximity to an assumption of continued or renewed cohabitation, especially if the alleged cohabitation has not been preceded by any lengthy separation and where there are other ties such as children in common. The position is different where the couple in question are not legally married, especially if they have not cohabitated previously or in recent times. In those circumstances the duration of the relationship to date, and signs of permanence for the future, will assume special importance.[49] It is worth noting (d) in particular for two observations. The first is thateither spouse can repudiate the relationship by (presumably) unilateral conduct. The second is that the test for living apart in the context of legal marriages is different from and harder to satisfy than that relating to de facto relationships. This reflects the formality engaged in establishing a legal marriage and, perhaps, a willingness to give marriage the benefit of the doubt. In any event, the relevant intention in terms of deciding whether a married couple are living apart is the intention to end all obligations inherent in the marriage relationship. It is only conduct that reflects this intention that is relevant. At the other end, it seems that it is also easier to show that cohabitation (the opposite of living apart) has resumed between a married coupleafter a period of living apart. Resumed "physical proximity", for example, will lead to an assumption of resumed cohabitation.[50] Director-General of Social Welfare v W9 related to W's application for asickness benefit where he and his wife were separated by economic circumstanceswhile maintaining (at least in W's view) an ongoing emotional commitment to therelationship. McGechan J held that physical separation was not enough:10The parties to a marriage are not "living apart" unless they not only are physically separated, but at least one side regards the marriage tie as dead.[51] Thompson v Department of Social Welfare11 is a useful distillation of many of these ideas. It involved fraud charges against the appellant who was convicted for falsely representing that she was living alone with her children when in fact she was with someone else in a relationship in the nature of marriage. Section 63(b) relating to de facto relationships was in issue (as opposed to s 63(a) relating to marriages).Before setting out Tipping J's list of indices, it is worth pointing out two preliminarypoints of relevance.[52] The first is that the Judge is careful to point out that s 63 (the format of which is, as I have said, materially identical to s 77) involves two separate discretions:(a) (in that case) to decide to treat a beneficiary as if he or she is in a relationship in the nature of marriage; and(b) to decide that this should affect the beneficiary's entitlement.[53] He said:12Thus the section gives the Director-General two discretions. The first is to treat as husband and wife any man and woman who have entered into a relationship in the nature of marriage. The second, which arises only on the exercise of the first, is to grant or refuse to grant the benefit in question. This must mean that if the first discretion is exercised so as to treat those who have entered into a relationship in the nature of marriage as legally9 Director-General of Social Welfare v W [1997] 2 NZLR 104 (HC).10 At 108.11 Thompson v Department of Social Welfare [1994] 2 NZLR 369 (HC).12 At 371.married, the benefit in question is not automatically affected. It is only to be affected as a consequence of the exercise of the further discretion.[54] The second is that Tipping J adopts and echoes Fisher J's reasoning in Excellwhen he says that:13... it may be easier to show that a legally married couple are living together than to demonstrate that a couple who are not legally married have entered into a relationship in the nature of marriage.[55] As to whether such a relationship is in existence as a matter of fact, His Honour first identified physical aspects as follows:14(1) Whether and how frequently the parties live in the same house.(2) Whether the parties have a sexual relationship.(3) Whether the parties give each other emotional support and companionship.(4) Whether the parties socialise together or attend activities together as a couple.(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children.(6) Whether the parties share household and other domestic tasks.(7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise.(8) Whether the parties run a common household, even if one or other partner is absent for periods of time.(9) Whether the parties go on holiday together.(10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.A negative answer to one or more of the questions will not necessarily mean the absence of a relationship in the nature of marriage. Nor will positive answers to a number of the questions necessarily mean its presence. The weight and effect of all the answers must be assessed. In some cases other matters not on the list may well be relevant and require assessment in the overall picture.The ultimate decision will always be one of fact and degree. As Sinclair J said in the Mauri case, the answer may well be influenced by the nature of the people involved, their attitudes to life and the standards and values which13 At 373.14 At 373-374.they themselves adopt. After all, the incidents and attributes of legal marriage are not the same for all people.[56] While these are indices of a relationship in the nature of marriage under s 63(b), it must follow that they are logically also appropriate indicators of the maintenance of marriage itself, albeit with the gloss introduced by both Fisher and Tipping JJ, that facts tending to suggest the continuation of marriage will be more readily accepted as having that effect.[57] Tipping J then referred to the mental aspect of the relationship in these terms:15... That ingredient involves some commitment by the parties to their relationship. It need not necessarily be a commitment intended to last for ever or indefinitely. Nor need it be a commitment to a long-term relationship. But it must, at least, be a commitment for the foreseeable future. Any lesser commitment would, in my judgment, be neither sufficient for nor consistent with a relationship in the nature of marriage. As with necessary commitment exists by a process of inference from what the parties have said and done.Do the cases apply to s 77?[58] Mr Taylor said the particular context of the WPA meant that Sullivan v Sullivan and the Social Security cases should not apply. He said the WPA focused on marriage as a status rather than the intimate facts of the marriage relationship. I do not agree with that proposition. Section 77(c) specifically requires the Secretary to look past the formal legal status of marriage to ask whether in substance the couple are in fact living apart. As Fisher and Tipping JJ say, marriage status is itself subtly relevant to the inquiry, but that inquiry is still quintessentially fact-centred. Indeed it is the same fact-centred inquiry as that required by s 63(a) of the SSA. A consideration of the intimate facts of the marriage is exactly what is required under s 77 WPA. The s 63 cases plainly apply.[59] Of course the benefit context of the SSA is very different to the entitlement context of the WPA. And "living apart", is approached from mutually oppositeperspectives in s 63 and s 77. Under s 63, living apart is entitling. Under s 77, living15 At 374.apart is disentitling. These differences may well affect the second leg of theSecretary's discretion. But they cannot change the reality that each section, in itscontext and for its own purposes, mandates an identical factual inquiry. Indeed, in my view, some aspects of the s 63 cases actually assist the appellant in this case.[60] I agree with the Crown that these cases apply under s 77(c). That said, I will return below to their impact on the Secretary's final decision of 20 October 2011.Did Lynn have to agree or understand the marriage was over?[61] It follows that I do not accept Mr Taylor's submission that a married couplecannot be considered to be living apart in terms of s 77(c) if they have not both agreed that the marriage has ended or share an understanding that this is so. As McGechan J held in Director-General of Social Welfare v W, living apart requiresboth physical separation and "at least one side" having decided that the marriage is over. To similar effect was Tipping J's dictum that repudiation can be unilateral.16That is, with respect, the only sensible approach to the question. There must be many marriages that end despite the earnest desire of one party and the steadfast refusal of that party to accept that this is the position. A marriage requires mutuality and if one party ends his or her commitment to it, that mutuality is lost. This ground must be rejected accordingly.[62] Of course whether, on the s 63 authorities, the Secretary applied the correct test in determining whether Tai's and Lynn's marriage was over is an entirely different question. I will address that issue below.Ground three: Predetermination[63] On this ground, Mr Taylor argued that VANZ had decided from the start that Lynn was not eligible for an SSP and had approached all subsequent reconsiderations with that position firmly entrenched. In addition, it is argued that Lynn was not provided until discovery with a copy of the filenote of her conversation on 2 July16 Excell v Department of Social Welfare, above n 7, at 248.2007 with Michelle at WINZ – the date of Lynn's first inquiry about an SSP. It was then that WINZ sent Lynn away because, it was said, she had no SSP entitlement.[64] This file note, it will be recalled, records Lynn allegedly advising Michelle that she had been separated from Tai for two years prior to his death. Lynn deniesever having said that. In support of Lynn's position here, it must be said that there isnothing in the evidence, no matter how viewed, to suggest that 2005 was an important year in terms of identifying a date of separation. Lynn did not leave for Tauranga until late 2006, while her apparently partial move next door to 65 Sunny Grove was well before 2005.[65] It is also argued that Lynn did not receive natural justice because Tai's VANZfile was not available to the Secretary prior to July 2011, during which time he madeseveral decisions about Lynn's application.[66] I do not think these arguments have any merit on the facts. First, one can see why Michelle at WINZ took the view she did, even if only because Tai had been receiving a living alone pension for many years. It is possible that Michelle was mistaken about Lynn telling her that she and Tai had been separated for two years. And, if it was a mistake, it was repeated and relied upon in subsequent reconsiderations. That is perhaps evidence of a factual mistake, but it is not evidence of predetermination.[67] Second, I accept the Crown's explanation that failure to disclose the WINZ2007 filenote until discovery was a mistake attributable to the fact that the electronic record of it had been overlooked by Ms Herewini who was collecting relevant documents for disclosure. There is no evidence that demonstrates active attempts by staff to suppress information as evidence of predetermination.[68] Finally, the Secretary's late acquisition of Tai's VANZ file was not fatal. Thefile was obtained in time to be in front of the Secretary during his final 20 October 2011 reconsideration.[69] I do not think this ground has merit.A fresh look at the 20 October 2011 decision[70] As I have indicated, although I am not convinced that the grounds advanced by Mr Taylor are supportable, I am nonetheless troubled by at least one aspect of theVANZ's SSP policy, and by the approach the Secretary took to applying s 77 and the policy to these facts. I turn now to consider a series of issues in that regard.What the SSP policy statement means[71] The final 20 October 2011 decision was made in the context of the agency'spolicy statement in relation to the SSP. Significant in that respect is section 3.4 of the policy providing that where a veteran was receiving a single person's benefitduring his or her lifetime, a surviving spouse will only be entitled to receive an SSP in the exceptional circumstances set out in section 3.5. Those circumstances, it will be remembered, are:(a) that the veteran was abusive in the relationship and the abuse was attributable to or aggravated by service; and(b) as a result the couple choose to "live apart": and(c) there are sufficient factors indicating financial interdependence and emotional commitment notwithstanding their living apart.[72] This policy is important in understanding the way in which the Secretary interpreted his discretions and processed the application.[73] The Crown argued that the term "living apart" as used in the policy shouldnot be interpreted according to the approach of the Social Welfare cases. Rather, it was argued that the phrase should be interpreted in the particular context of the policy to mean physically separated. This is necessary, the Crown said, to have the policy make sense. Otherwise the third requirement for there to be sufficient factors to indicate financial interdependence and emotional mutuality despite the couple living apart, would, the Crown argued, contradict the test in the s 63(a) cases. Thatis because the cases say that the maintenance of financial interdependence and emotional mutuality are key indicators that a couple are not in fact living apart. For a series of reasons, which I set out below, I do not accept the Crown's submission in that respect:(a) The Crown cannot have it both ways. If the policy dictates the way in which the Secretary must exercise his s 77 discretion, then the phrase should have the same meaning in the legislation and the policy.(b) It is very unlikely that the officials who drafted the policy intended living apart to have a different meaning to the statutory meaning, particularly given that this is the core concept in s 77. I cannot accept that this policy would have been drafted without knowledge of the s 63(a) cases.(c) In any event, section 3.5 of the policy is not necessarily inconsistent with the requirement in the social welfare cases that living apart precludes the financial interdependence and emotional mutuality one would expect in a marriage. Ongoing interdependence and mutuality at a lower level despite the end of a marriage is entirely possible where a couple has been together for many years. While I cannot attest to any expertise in these matters, I would have thought that abusive relationships could well produce this sort of ongoing co- dependency. More particularly, the possibility that a residual relationship of this kind could deserve recognition by way of an SSP is contemplated by the second of the two s 77 discretions. Even after the Secretary finds as a fact that the couple are living apart, he can still decide, in his discretion, to grant the surviving former spouse an SSP. Thus, the third criterion in section 3.5 is not necessarily inconsistent with the social welfare cases.[74] In light of the foregoing, I turn now to consider the way in which the Secretary crafted his final decision on 20 October 2011.The 20 October 2011 decision[75] The Secretary distilled the relevant factors for his final decision as follows:(a) Tai's declarations in pension application and review forms for the period 2000 to 2006 demonstrated that he saw himself as a single man, separated and living alone;(b) while Lynn and Tai did seem to maintain some kind of relationship, itwas not a relationship "inherent of a marriage";(c) Tai was financially independent and had no commitment to a shared emotional bond with Lynn.This was, in substance, an application of sections 3.4 and 3.5 of the VANZ policy on SSPs. In essence the Secretary took the view that, in light of Tai's single pensionand allowances, Lynn could only qualify for an SSP if her financial interdependence with and emotional commitment to Tai before his death, was such that they were not"living apart" or, in other words, that their marriage remained intact.[76] Factors that seemed to have weighed heavily in the Secretary's earlier decisions prior to 20 October 2011 had fallen away, or at least had lost the prominence they once enjoyed in the Secretary's mind. The oblique reference in the first decision of 19 July 2010 (repeated more directly in the 1 June memorandum signed off by the Secretary) that Lynn had advised Michelle at WINZ Wainuiomata that she had been separated from Tai for two years prior to his death, was no longer a focus. The 13 October 2010 reference to Tai's possible new relationship with Missyhad also fallen away, although a year earlier this had seemed to be a key factor in showing that Tai and Lynn were living apart because of Missy and not because ofTai's service related abuse of Lynn. In 2010 that reasoning had led the Secretary to refuse to apply the section 3.5 exception in the policy.[77] Finally the Secretary's reference on 13 October 2010 to evidence ofreconciliation between Tai and Lynn in the months before Tai's death is notmentioned at all a year later. On 13 October 2010, a possible reconciliation is mentioned and then discounted as irrelevant. The Secretary said s 34(a) WPA disqualified from entitlement the surviving spouse of any relationship formed within a year of death, if there was no expectation that the veteran would live longer than a year. As I have said the Secretary agrees now that s 34(a) was irrelevant to Lynn'ssituation. But that does not mean the underlying facts were irrelevant to the final decision.My analysis[78] I am aware:(a) that the judgement call to be made here is for the Secretary, not me exercising powers of judicial review. What I think was the nature of the relationship between Tai and Lynn in the time leading up to his death is irrelevant;(b) Judges grappling with what is meant by the term "living apart" in thepast have consistently emphasised that the decision requires a complex series of overlapping and conflicting factual considerations to be weighed in what sometimes will be a delicate balancing exercise;(c) that my role is to ensure that, in deciding whether Lynn and Tai were living apart, the Secretary has correctly interpreted the statute, applied lawful policy, and weighed the relevant factors in his decision, while setting aside irrelevant ones.[79] In my view, there are relevant errors in section 3.4 of the policy statement and in the way the Secretary applied the policy and the statute. First, under section 3.4 of the policy, the fact that Tai claimed a single pension was essentially fatal toLynn's claims unless she could fit her situation into a very narrow exception. Thispolicy is premised on the idea that the veteran's declaration is decisive in terms of the legal definition of living apart. This is essentially the way in which the Secretaryapproached the relevant decision. The policy is not consistent with the terms of s 77 or the relevant authorities. The fact that Tai applied for pensions as a single person and confirmed that status for six years must of course count powerfully in favour of the proposition that he and Lynn were indeed living apart prior to his death. But those facts cannot be definitive in the way postulated by the policy and applied in effect by the Secretary.[80] Whether Lynn and Tai were living apart is an objective question requiring complex competing factors to be weighed. The possibility cannot be discounted, on these facts, that Tai exploited an ambiguous situation in the relationship, in order to claim the single rate because it was higher than the married rate. That is not to accuse Tai posthumously of defrauding VANZ as the Secretary and Ms Herewini suggested in earlier decisions.17 It is rather that the difficulties in this relationshipmade Tai's approach to his marital status tenable and he was able to take advantage of that while still maintaining (even the Secretary accepted), some form of relationship with Lynn. Nor can the possibility be discounted that Tai and Lynn had come through this period of difficulty and ambiguity to reconfirm their relationship in the months immediately prior to Tai's death. Indeed, a year prior to 20 October 2011, the Secretary had accepted that there was "some evidence" to this effect. Having taken that view on 13 October 2010, this factor is not even mentioned on 20 October 2011. The Secretary did not grapple with this inconsistency.[81] It is to be remembered that Fisher and Tipping JJ both considered that marriages were a special category in the context of deciding whether a couple were"living apart". Marriages require clear evidence of an intention to end the relationship in the face of the formal statutory commitments made. Both Judges also considered that it may be easier to show that a marriage relationship has been resumed by a couple that had been living apart. The law is more willing to join the dots as it were, between the legal status of marriage and evidence of renewed commitment. The evidence in this case of that recommitment (if the Fongs were in fact living apart) is to be found in the letter from Wayne Davidson-Corrin suggesting Tai had decided to move to Tauranga and the evidence of shared travel plans to17 See for example Ms Herewini's memorandum to the Secretary dated 1 June 2011: "We have noevidence to suggest that the late Mr Fong was committing an act of fraud."Australia. There is also evidence of further shared spending although that was not all available to the Secretary on 20 October 2012.[82] The terms of section 3.4 of the policy wrongly precluded any consideration of any of these potentially significant possibilities on the evidence and unsurprisingly the Secretary failed to consider them as a result.[83] The second error is that the Secretary did not properly grapple with the exception in the policy at section 3.5. He does not seem to have asked to what extentthe separation was attributable to Tai's war related abuse as required by the policy. The evidence for that connection can be found in Lynn's "Silent Screams" document but this is not addressed at all. It should have been. The decision of 13 October 2010 refers to the separation being attributable ("a factor" to use the phrase in thedecision) to Tai forming a new relationship with Missy. But this is not mentioned in the 20 October 2011 decision as a reason to disqualify Lynn from the benefit of the section 3.5 exception. I do not see how the presence of a third party would necessarily be fatal anyway. Even if Missy was on the scene, as it were, that does not exclude the possibility that Tai's abuse and aggression over the years was asubstantial and operative cause of the breakdown. Relationships are complex. There will often be more than one contributing factor to relationship failure. I would have thought that was very likely to be the case here given this couple's history ofrelationship difficulties long before Missy was a factor.[84] An aspect of this larger error was referred to by Mr Taylor in argument. Thiswas the Secretary's failure to consider that the evidence of ongoing interdependence and mutuality, in terms of the third criterion on section 3.5, justified him exercising his discretion to grant Lynn an SSP anyway. The Secretary applied the policy in an illogical way. He must have interpreted section 3.5 to mean (in effect) that where a couple were living apart, the surviving spouse can only receive an SSP if they werenot in fact living apart – i.e. if they maintained a relationship "inherent of a marriage". As Mr Taylor submitted, that just does not make sense if the meaning of living apart in the social welfare cases is the applicable meaning.[85] As I have said section 3.5 should properly be read (in light of s 77) to allow for mutuality and interdependence short of marriage in cases where the marriage ends because of abuse which is service related. Read this way the exception is perfectly logical. This less rigid approach to entitlements is also consistent with the idea referred to by the Law Commission: that one of the purposes of the SSP is to reward a spouse for years of caring for a veteran who has been "significantlydisabled". In this context, that must be seen to include compensating spouses foryears of abuse. The thrust of section 3.5 is consistent with that purpose.[86] I suppose it is possible, in the alternative, that the Secretary simply refused to consider section 3.5. That refusal would itself be an error of course.[87] In the foregoing respects the policy was in breach of s 77 and the Secretary misapplied the section, the policy or the relevant case law. He failed to consider the evidence suggesting that Lynn and Tai had reconciled. He failed to consider thepossibility that Tai's declarations as to his single status were not inconsistent with acontinuing relationship which, while distorted by Tai's abuse, could still beconsidered sufficiently mutual and interdependent to amount to a marriage. Finally, he failed to consider the extent to which the evidence of ongoing mutuality and interdependence, even if it was short of marriage, nonetheless satisfied the exception in section 3.5, properly interpreted, so as to justify granting Lynn an SSP anyway.[88] In short, the policy in section 3.4 is cast in unduly narrow terms and the Secretary took an unduly narrow view of his discretion in light of the broad compensatory and reward purposes of the SSP.[89] It follows that, in my view, the Secretary's final decision in relation to Lynn'sclaim is invalid and should be set aside.Relief[90] In light of the foregoing, I have considered Mr Taylor's submission that in the circumstances of this case, I should take the unusual step of exercising the s 77 discretion myself. His argument is essentially that in four decisions over two years,the Secretary has demonstrated that he has a closed mind and should not be given a fifth opportunity to demonstrate his lack of objectivity. For the following reasons, I am not prepared to take the process off the Secretary in this case:(a) I do not think the Secretary has necessarily demonstrated an inabilityto consider Lynn's claim afresh and without a closed mind. The evidence is rather that s 77 has been applied in a rather muddled and inconsistent way. That problem can be corrected on a reconsideration.(b) There are still subtle judgements to be made in weighing multiple overlapping and sometimes conflicting factors. It is inappropriate for this court on judicial review to usurp the function of the statutory delegate except in the most dire of cases. This is not such a case in my view.[91] The matter is referred back to the Secretary for reconsideration. For the removal of doubt, he must consider the following matters anew:(a) whether, in light of Excell and Thompson, an objective assessment of the evidence of emotional commitment and financial interdependence between Tai and Lynn is sufficient to conclude that they were notliving apart in the period prior to Tai's death;(b) whether, if they were living apart on the evidence, it is appropriate to treat Lynn as if she was single at the relevant time;(c) if Lynn should be treated as single at the relevant time:(i) whether she and Tai were living apart as a result of Tai'scombat related PTSD; and, if so,(ii) whether Lynn and Tai nonetheless retained sufficient emotional commitment and financial interdependence short of marriage, to warrant Lynn being awarded an SSP anyway.[92] In light of the fact that the claim process is a benevolent one, reconsideration should include consideration of the additional financial information provided by Lynn in this proceeding and any further evidence, information and submissions that she may care to put before the Secretary in accordance with any reasonable timetable he may set. In addition, the Secretary should pay particular regard to the compensatory and reward purposes of the SSP regime in making the foregoing judgements.[93] Costs are reserved and may be dealt with in brief memoranda if they cannot be agreed.___________________________Williams J