CHHIMA AND CHHIMA V WINZ HC AK CIV-2004-485-1761

CHHIMA AND CHHIMA V WINZ HC AK CIV-2004-485-1761 24 February 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2004-485-1761 CIV-2004-485-1762UNDER the Social Security Act 1964 IN THE MATTER OF appeals from decisions of the Social Security Appeal Authority under s 12Q of the Social Security Act 1964 BETWEEN MANU GOPALJI CHHIMA AND SAVITA MANU CHHIMA Appellants AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF WORK AND INCOME NEW ZEALAND Respondent Hearing: 24 June 2005 Appearances: A J McGurk for the Appellants Ms U R Jagose together with Ms J K Cumming for the Respondent Judgment: 24 February 2006RESERVED JUDGMENT OF FRATER JCounsel: A J McGurk P O Box 9491 Te Aro Wellington for the Appellants Crown Law Office P O Box 2828 Wellington for the Respondent Solicitors: Otene and Ellis P O Box 13138 Onehunga for the AppellantsIntroduction[1] These appeals from decisions of the Social Security Appeal Authority concern Mr and Mrs Chhima's entitlement to Social Welfare benefits: a transitional retirement benefit and an unemployment benefit, respectively. Because they relate to the same facts and raise more or less the same issues, the two proceedings have been consolidated. [2] The principal issue under appeal concerns the interpretation of s 74(1)(d) (previously s 74(d))of the Social Security Act 1964 (the Act) which provides that:74 Limitation in certain other cases(1) Notwithstanding anything to the contrary in this Act ... the chief executive may, in the chief executive's discretion, refuse to grant any benefit or may terminate or reduce any benefit already granted or may grant a benefit at a reduced rate in any case where the chief executive is satisfied — ... (d) That the applicant has directly or indirectly deprived himself of any income or property which results in his qualifying for that or any other benefit or an increased rate of benefit.Background facts[3] At all material times Mr and Mrs Chhima were the joint owners of 13 acres of horticultural land at Takanini. Until 1996, when Mr Chhima suffered an accident, the property was worked as a market garden. Thereafter, Mr Chhima received weekly compensation from the Accident Compensation Corporation. [4] The property was placed on the market for sale in June 1999 but did not sell. The asking price $450,000. The 2000 Government valuation was $337,000. [5] In September 2001 the price was increased to $500,000, which one of the land agents handling the sale regarded as unrealistic. He thought that the property would sell, if priced realistically.[6] In a letter dated 3 April 2003 the same agent said that a realistic selling price during the period September 2001 to January 2002 would have been around $395,000 to $425,000. He estimated the current (April 2003) market value at between $445,000 and $465,000, on the basis that larger areas of land in the vicinity had recently sold for between $20,000 and $26,000 per acre. [7] A sale was eventually effected in January 2004. The sale price was $740,000. [8] Between June 1999 and the date of sale, no income was received from the property. Mr Chhima said that he asked the real estate agent to try to lease it, but nothing eventuated. In the meantime, he allowed a neighbouring farmer to graze cattle on it, to keep it tidy. Maize was grown in one paddock, for stock food. [9] In the letter referred to above, the real estate agent commented that the land:... was offered to a couple of people for lease without any interest being shown mainly because it contained rank pasture and overgrown grasses, although one party did pursue the enquiry for some time without any satisfactory outcome. Mr Chhima was, as I understand it, approached privately by the current maize grower.[10] On 4 September 2000 Mr Chhima applied for, and was granted, a transitional retirement benefit. Mrs Chhima was included in her husband's benefit as a non- qualifying spouse. Payment of his ACC benefit ceased a year later. [11] In January 2002 Work and Income reviewed Mr Chhima's benefit entitlement to include income charge of $15,502 per annum, calculated at 4.6% - the current interest rate offered by the Bank of New Zealand for a 12 month term deposit – on $337,000. [12] Mr Chhima unsuccessfully sought a review of this approach. However, it was confirmed in an internal review and that decision was, in turn, upheld by a Benefits Review Committee. [13] He then appealed against the Committee's decision to the Social Security Appeal Authority (the Authority).[14] On 11 July 2002, Mr Chhima was granted New Zealand Superannuation at half the married rate. Mrs Chhima was not included in it. [15] Accordingly, on 13 November 2002, she applied for an unemployment benefit. The application was declined on the basis that, taking into account a notional income assessed on a land value of $450,000, her income exceeded the allowable limit. [16] While endorsing the approach taken, the Benefits Review Committee, which considered her case, reduced the land value used in the calculation from $450,000 to the Government valuation of $337,000, the figure used in assessing Mr Chhima's entitlement to a transitional retirement benefit. Applying the current BNZ rate of 5.63%, this produced a notional income of $18,973.10 per annum, or $364.86 per week. Consequently, Mrs Chhima was paid an unemployment benefit at the reduced rate of $31.73 per week. [17] She too appealed against this decision.Hearings before and decisions of the Appeal Authority[18] The Authority heard Mr Chhima's appeal on 13 February 2003. [19] They were not impressed by the oral evidence he gave, which, in their decision of 16 July 2003, they described as:evasive and lacking in credibility both in relation to the land being used for grazing stock and in relation to the sale of the property.[20] They also noted that he had not produced any evidence to suggest that the land agent's assessment of the situation was incorrect. [21] The transitional retirement benefit is an income-tested benefit. According to the Authority, they are given to provide financial support to those who need it. But in the first instance, applicants for such benefits should utilise their own resources to support themselves. They have a duty to organise their resources to provide themselves with income, when they need it.[22] The Authority did not accept Mr Chhima's contention that a requirement to earn an income from capital constituted an asset test, pointing out that he remained in possession of his capital, whether in the form of land, or money. [23] They held that by asking an unrealistic price for the Takanini property, Mr Chhima had deliberately chosen a course of action which made it likely that a sale would not be achieved. Furthermore, although leasing the land seemed to be a possibility, Mr Chhima did not appear to have taken any positive steps to do so, and was not charging the present occupier any rent. [24] In all the circumstances, the Authority concluded that the appellants had a business asset capable of being realised to produce an income when they needed it, and were given an opportunity to make arrangements to do so. By failing to pursue that course of action, Mr Chhima deprived himself of income, thereby effectively qualifying himself for a benefit at a higher rate than might otherwise have been the case. Accordingly, they endorsed the approach taken by the Chief Executive, and dismissed the appeal against the Committee's decision. [25] Mrs Chhima's appeal was heard on 10 September 2003. Both Mr and Mrs Chhima gave evidence. The decision of the Authority, declining Mrs Chhima's appeal, was issued on 9 December 2003. [26] As in the case of Mr Chhima, and for substantially the same reasons, the Authority concluded that it was appropriate for the Chief Executive to calculate a notional income based on the Government valuation of the appellants' land, and to adjust benefit payments to Mrs Chhima accordingly. [27] The Authority's findings in Mrs Chhima's case went further than those in the earlier case in two respects: i) On the issue of her responsibilities as a joint tenant; and ii) Regarding the evidence concerning the lease of the land.[28] The Authority determined that, between 1999 and 2002, at least two or three offers were made for the land, but rejected because neither party was satisfied with the price. On the evidence they found that Mr Chhima had consulted Mrs Chhima concerning sale offers and that she rejected them. The Authority did not accept that, as a joint tenant, Mrs Chhima had no control over whether or not the property was sold. She had rights as a joint owner to deal with the property. [29] In the circumstances, the Authority considered it surprising that, between 1996, when the Chhimas ceased working the land in Takanini, and November 2002, when Mrs Chhima applied for an unemployment benefit, a sale of the property, at a market price, could not be achieved. [30] The Authority said that they had reliable information about the income that might have been received, if the property had been leased. They regarded the evidence given on the topic as inconsistent noting that, whereas, at the hearing, Mr Chhima made it clear that he did not want to lease the land as that would impede a sale, in an earlier letter, his advocate had said that it was still available for lease, should a lessor become available. [31] Given their findings as to credibility, the Authority could not be sure that, in fact, the neighbouring farmer had not, in fact, paid for leasing the land. [32] But in any event, the Authority regarded the figures used for calculating notional income as very conservative. They did not think any objection could be taken to them.The present appeals[33] Mr and Mrs Chhima were each dissatisfied with the Authority's decision affecting them and appealed to this Court, pursuant to s 12Q of the Act by way of case stated on questions of law. [34] In the event, the outcome of the appeals will have little practical impact on either appellant:First, because the benefit which Mr Chhima is now receiving (New Zealand Superannuation) is not income tested; Secondly, with the sale of the property, and the parties' subsequent separation, Mrs Chhima's circumstances have changed and she is no longer entitled to any benefit. [35] Accordingly, the impact of a successful appeal would be limited to a short period only. [36] However, as Mr McGurk submitted, the appeal raises issues about the interpretation of s 74(1)(d) which have wider application than the facts of this case; this is akin to a test case, he said. The Authority has never before interpreted s 74(1)(d) in the manner suggested. Deprivation of income in relation to assets has always concerned how a person disposes of assets, in particular, the disposal of assets for little or no consideration. [37] Mr McGurk contended that a successful result for the respondent could see the development of a new policy allowing for main benefits to be reduced on the basis that beneficiaries have deprived themselves of income by failing to relinquish all sorts of assets because of the "potential" income that could be derived from the proceeds of selling them. This would run contrary to the legislative policy that main benefits (e.g. unemployment, transitional, retirement, domestic purposes and sickness benefits) are free from asset testing, because Parliament regards it as desirable that, for the purpose of those benefits, assets be retained. [38] The respondent does not accept that this is anything like a test case. Ms Cumming said that the decision has little precedent value; essentially, its application is limited to its own facts.Cases stated[39] The Authority posed different questions for the opinion of this Court in respect of each appellant.[40] In the case of Mr Chhima they are: i) Did the Authority err in law in finding that the appellant had deliberately chosen a course of action relating to the sale of his property which made it likely that a sale would not be achieved, namely by asking an unrealistic price for the property? ii) Did the Authority err in law by finding that in failing to pursue a course of action calculated to ensure his assets produced an income at a time when he was in need of income, the appellant deprived himself of income which effectively resulted in his qualifying for a rate of benefit greater than might otherwise have been the case? iii) As a matter of law was the Authority correct in determining that the discretion conferred by s 74(1)(d) should be exercised to calculate notional entitlement and to grant the appellant a transitional retirement benefit at a reduced rate? [41] In respect of Mrs Chhima, the questions are: i) Did the Authority err in law for finding that s 74(1)(d) can apply where it considered that the appellant had failed to pursue a course of action calculated to ensure than an asset owned by the appellant produced an income for her at a time when she was in need of income? ii) Did the Authority err in law in determining that the appellant and her husband had an obligation to organise their financial affairs in such a way as to make provision for an income for themselves if they needed it? iii) Did the Authority err in law in determining that the appellant and her husband deliberately chose a course of action relatingto the sale of the property at Takanini which made it likely that a sale would not be achieved by asking an unrealistic price for the property? iv) Did the Authority err in law in determining that the appellant, in failing to pursue a course of action calculated to ensure the asset produced an income for her at a time when she was in need of an income, deprived herself of an income? v) Did the Authority err in law in finding that the appellant did have a right as a joint owner of the property to deal with the property?Issues[42] Counsel are agreed that, essentially, these questions raise the following four issues for determination: i) Whether s 74(1)(d) of the Act can apply to the appellants' circumstances. ii) Whether particular factual findings were either unsupported by or contrary to the evidence. iii) The implications of a joint tenancy on the application of s 74(1)(d). iv) If s 74(1)(d) of the Act can apply to the appellants' circumstances, whether it was reasonable in all the circumstances to apply the discretion to reduce benefit payments. [43] I turn now to address each of these issues, and the questions to which they relate.Can s 74(1)(d) apply to the appellants' circumstances?[44] This is the critical issue for determination in these appeals. It necessitates an analysis of the wording of subsection (d) of s 74(1), namely what is meant by:That the applicant has directly or indirectly deprived himself of any income or property which results in his qualifying for that or any other benefit or an increased rate of benefit: (emphasis added)Submissions[45] The appellants' primary submission was that there was no deliberate or conscious act by the Chhimas which could constitute a deprivation for the purposes of the section. [46] In elaboration Mr McGurk said: i) Section 74(1)(d) requires more than the mere ownership of an asset in order to establish that applicants for main benefits have deprived themselves of income. A conscious and deliberate act is required. There must be an actual, as distinct from potential, deprivation to bring the subsection into play. ii) The statute draws a distinction between benefits that are asset or means tested, and those that are not. Simply maintaining an asset cannot constitute the type of deprivation envisaged by s 74(1)(d). There can be no obligation to relinquish or liquidate capital assets in order to be eligible for a benefit which is not asset tested. To do so would encourage:... a previous dissipation of capital assets and savings, leaving the applicant even more vulnerable economically than before.– 1972 Royal Commission of Inquiry into Social Security in New Zealand (Chapt 15, para 8). iii) Such a requirement would also be contrary to the departmental policy that main benefits are not asset tested.iv) The position taken by the Authority, and endorsed by the respondent, confuses that policy in a way that would make it difficult to know when a deprivation had occurred. The Act imposes an obligation on applicants for main benefits to declare their income. However, there is no corresponding obligation to derive income. v) If there had been a requirement for beneficiaries of main benefits to use their income, that would have been stated clearly in the statute. The Act is a code and makes it very clear when asset tests are to apply. vi) There was no deliberate or conscious act in this case. The appellants ceased working the land because of an accident and merely owned an asset that, under the legislative scheme, applicants are encouraged to retain. In the present circumstances, an omission in isolation cannot amount to a deprivation. Therefore there was no income which could attract the attention of s 74(1)(d). [47] In response Ms Cumming argued that: i) It is a cornerstone of the Act that, before calling on State assistance, applicants make use of their own resources. ii) Section 74(1)(d) encompasses both direct and indirect deprivations of income. This can be established by evidence of either a pattern of behaviour, or a voluntary omission to take action. iii) However, the Authority does not need to establish that the applicant deprived him or herself in order to qualify for an increased benefit; only that, but for the deprivation, the applicant's needs could have been met from income.iv) Section 74(1) applies to "any benefit". "Benefit" is defined in s 3 of the Act to meana monetary benefit payable under this Part [Part I] or Part 2(which covers the unemployment benefit sought by Mrs Chhima) and includes a transitional retirement benefit payable under Part I of the Social Welfare (Transitional Provisions) Act 1990. This means that s 74 is not restricted to asset tested benefits. The Chief Executive may exercise his or her discretion over each of the different types of benefit. This discretion is key to the purpose of the Act – supporting those in need. v) To require an applicant, who owns an asset that can reasonably be used to generate income to first realise the potential income from that asset, rather than relying on a benefit for support, is not the same thing as asset testing. vi) The appellants in this case owned a business asset. They had placed the land on the market before approaching the respondent for benefits. The Authority did not necessarily require that the asset be sold or "stripped"; only that its potential to general income be realised, either by substituting another asset which could do this, or by obtaining income through leasing the property. That is appropriate when considering an income-tested benefit. The asset itself would remain. The only possible loss to the appellants if the asset were substituted for cash would be of any capital gain. vii) Whether or not to grant or reduce or defer a benefit is a matter within the discretion of the Chief Executive, and therefore the Authority, pursuant to s 12M of the Act. Unless that discretion has been exercised unreasonably or on the basis of an error of law, it cannot be challenged by way of case statedunder s 12Q. Even if the Court were minded to exercise the discretion in favour of the appellants, it cannot do so; that is a matter for the Authority.Discussion[48] The key to the interpretation of s 74(1)(d) rests in the meaning to be given to the word "deprive". [49] That issue was addressed by Tompkins J in Blackledge v Social Security Commission HC AK CP81/87 17 February 1997, Tompkins J. [50] Blackledge concerned members of the Centrepoint Community. Upon joining the commune members transferred everything they owned into a trust. In return, they were fed, clothed and housed. Subsequently the number of permanent members allowed to live at the commune was restricted. As a result, many members resigned their membership, left the commune, and applied for unemployment or domestic purposes benefits. [51] On the appeal, the Appeal Authority found that, in terms of s 74(d), each appellant directly or indirectly deprived themselves of income or property by a combination of acts and omissions, for example, by: i) handing over assets to the trust upon the conditions of the commune; ii) contributing time, skills and labour without salary or wages and accepting nothing more than accommodation, food, clothing and $1 per week; iii) by the method adopted to reduce the number of persons living at the commune, which inevitably had the effect of reducing the income capable of being earned by the commercial activities carried on on the property;iv) by failing to exercise the right to requisition a meeting of members of the trust and to propose an appropriate resolution; v) by resigning from membership of the trust in the circumstances in which that resignation took place, without first taking steps requiring the trustees to exercise their powers under the trust deed. [52] One of the questions for Tompkins J was whether, for paragraph (d) to apply, the deprivation must have been for the purpose of qualifying for a benefit. He held that it was not, saying, at pp 37-38:... state support under the provisions of the Act should not be used as a substitute for utilising ones existing resources. It is the failure to consider or act in accordance with this principle which risks attracting the existence of the discretion under s 74(d). The phrase "deprived himself" indicates that the act must be the deliberate conscious act of the applicant, not an accidental act or an act beyond the control of the applicant. If it is, and if the act directly or indirectly deprives him of any income or property and if being so deprived results in his qualifying for a benefit or an increased rate of benefit, the subsection applies. And it is important to note that, even when all the conditions are fulfilled, the Commission still has a discretion whether to refuse to grant the benefit or terminate or reduce the benefit or grant a benefit at a reduced rate.[53] This passage was cited with approval in Keenan v Director General of Social Welfare HC AK AP24-SW00 19 June 2000, Gendall J. In upholding the Authority's decision that, by transferring considerable assets to a family trust, the appellant had deprived herself of income, Gendall J said:The principle to be derived from Blackledge is equally applicable to the situation of the appellant. Blackledge states that which is obvious, namely there has to be deliberate relinquishing of property or income through the choice exercised by the applicant. But the purpose or motive for such actions (whether to create an eligibility for a benefit or otherwise) is something different. It is not discernible from the legislation or its purpose that a person should have the specific motive of obtaining a benefit, when deliberately relinquishing property or income before the subsection applies.[54] In both these cases the appellants took clearly identifiable, positive, acts, to divest themselves of their assets and orchestrate the situation which led to their reliance on the State.[55] But s 74(1)(d) includes acts of omission as well as commission. [56] In Blackledge, (at p 38) Tompkins J said:That is clear from the phrase "directly or indirectly". So if an applicant omits to do something and that omission, whether directly or indirectly, deprives him or her of the income or property with the result set out in the paragraph, the Commission has the right to exercise its discretion.[57] Ostensibly, Mr McGurk did not challenge this interpretation. However, by submitting that hitherto the section had primarily been used in situations where the parties had divested themselves of assets altogether, or sold or gifted assets for insufficient consideration, the term "deprive" should therefore be given a meaning consistent with "divest", dispose" or "dispossess", he effectively did so. Accordingly he argued that an applicant would only have deprived themselves of a benefit if the deprivation had already taken place, as distinct from the situation where there is a potential for deprivation. [58] I do not agree. [59] "Deprived" must surely apply not only in an active sense but also in a passive sense: of divesting oneself of income by not taking an opportunity to do something. For example, to deprive oneself of food logically means not to take food, rather than just giving your food away. [60] The Oxford English Dictionary (2nd ed. 1989), while citing several examples of the active meaning of deprive, also includes:To keep (a person) out of (from) what he would otherwise have; to debar from.[61] While, for the purposes of s 74(1)(d), acts of commission will generally, if not always, be past events, acts of omission will not necessarily be so. Of its nature, an act of omission can be ongoing. [62] Moreover, the section refers to deprivation, both of property and of income. There would be few situations in which an applicant would actually divest themselves of an income, as it is regularly understood, as income encompasses notonly what a person has, but also what they will receive in the future. To deprive oneself of an income would usually involve a failure to take an opportunity to receive income. [63] The critical requirement, in each case, is that the act of deprivation, whether of commission or omission, be deliberate. And that is a matter of fact for determination in each case. [64] The approach adopted by the Authority is consistent with the general approach to the application of Social Welfare legislation. A common theme running through the case law is that an applicant is expected to avail themselves of their own resources before turning to the State – see Director-General of Social Welfare v W[1997] 2 NZLR 104, 107 where McGechan J stated that:The object of the social welfare legislation is to provide a publicly funded safety net where such is needed.And also at 108, that:... [P]olicy considerations are to be kept in a full perspective. It is policy to provide benefits where there is need; but it likewise is policy to expect claimants to call upon their own resources, and the resources of those properly obliged to them, before calling on the state.[65] See also, to the same effect, McGill v McGill [1958] NZLR 145, McGill v McGill (No 2) [1958] NZLR 257, Director-General of Social Security v K & MHC WN AP255/95 7 February 1997, Heron J. [66] I do not accept Mr McGurk's argument that a decision in favour of the Authority would effectively result in asset stripping in a benefit regime that is not intended to be asset tested. [67] The appellants were not being required to sell the land at all. They were required to obtain an income from it. The option of leasing was available. Their failure was in not countering the land agent's evidence that either leasing, or sale at a price lower than the asking price, were realistic options.[68] Although they ceased working the land because of an accident, there was nothing involuntary or accidental about their subsequent decision to put it on the market for sale. The crux of the Authority's decisions is that the appellants did so in a manner designed to deprive them of the potential income that could flow from offering to sell at a reasonable price, or leasing it in return for rental. Each time they rejected an offer to purchase, or failed to pursue an opportunity to lease the property, or when they allowed the neighbour to use the land for free, they made a conscious and deliberate decision to forego income. [69] It is also necessary to bear in mind the time period involved. This is not a case where the applicants were required to sell the property for whatever offer was received, no matter how miserly. Five years elapsed before they obtained an income from it. The State should not be required to bank roll them for that length of time, while they waited to realise a substantial capital gain. [70] Nor is this a test case. While I accept that the result of this decision does extend s 74(1)(d) into new territory, it does not follow that the floodgates have been irreversibly opened. The decision in this case is specific to its own facts. It is significant that the Chhimas were not required to sell their residential home or the land on which they lived to realise a potential income. The land in issue was in a separate category. It was once a source of income for them. It was a business asset. Therefore, the deprivation in this case is more aptly described as ceasing to reap the benefits of an income that was already available to them. [71] Mr McGurk suggested that to uphold the Authority's decision would lead to uncertainty. No one could predict where the boundaries would be drawn. Could it lead to applicants being required to rent out a room in their home, or to downsize to a smaller home after their children had left? I doubt it. [72] Whether there is a potential income is a question of fact in each case. The answer will depend on the nature of the income, and the asset from which it is derived. [73] An applicant for State assistance must have an obligation not just to declare income actually received, but also to derive income from readily available sources,within their control. If, as here, an applicant had previously derived an income from a commercial asset it would be reasonable to expect that they continue to do so. A domestic asset would generally be in a different category. Unless they had been in the habit of taking in boarders, an applicant would not have to let a room in their home, just because it became spare. Nor would they be expected to call on friends or family for financial assistance. But if they downsized and deliberately utilised their net proceeds in a way designed to take the resulting income out of their control, as inKeenan, they could expect the subsection to be applied against them. [74] Of course, whether the respondent or the Authority will in fact attribute a notional income is also a matter of discretion, to be determined on a case by case basis.Were the Authority's factual findings supported by, or contrary to, the evidence?[75] On an appeal by way of case stated the Authority's decision must stand unless the Court is satisfied that, in exercising its discretion, it either applied the wrong legal test or erred in its application of the law to the facts. It is not open to this Court to re-consider the facts under the guise of an error of law. To amount to an error of law the facts must be such that, no person, acting judicially and properly instructed as to the law, could have come to the determination reached on the facts. Questions of credibility are the sole domain of the Authority. If there are reasonable grounds for a finding of fact, the Court is not to be called upon for a "second opinion": Edwards v Bairstow [1955] 3 All ER 48. [76] In practice, there are only two factual issues which this Court can consider on a case stated: i) Whether a positive factual finding made by the Authority appealed from was unsupported by any evidence; and ii) Whether any inference other than that contended for by the appellant could reasonably have been drawn from thoseprimary facts actually found by the Authority: Auckland City Council v Wotherspoon [1990] 1 NZLR 76, 85 per Fisher J. [77] I do not propose to go through the evidence. It will be clear from the factual narrative set out above, that there was evidence upon which the Authority could decide that the appellants had deliberately refrained from utilising their asset to obtain income. In the absence of any clear contrary evidence from the appellants, it was open to the Authority to accept the agent's evidence that the property did not sell between 2001 and 2003 because it was overpriced; secondly, that offers were received at a realistic price but rejected; and thirdly and, in the alternative, that, in the absence of sale, the property could have been leased and returned an income. [78] I accept Ms Cumming's submission that the price that the land ultimately sold for in January 2004 is irrelevant to the decision which the Authority made in respect of Mr Chhima, beforehand. As the Court of Appeal stated in Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 at 658:What is under review is a challenge to the integrity of the earlier decision making process, on which the new material does not impinge in any significant way.[79] It is also relevant that, having heard from Mr Chhima not once, but twice, the Authority did not believe him. There is plenty of justification for this finding, given the inconsistencies in his evidence on various topics: whether he loaned money to a friend, and, if he did, what he did with the proceeds; and whether he bought a car. There was also his failure to provide relevant information when it was clearly an issue, for example, his failure to disclose that at least some of the land was sown in maize. [80] It is also relevant that the Authority found discrepancies between the evidence of the appellants themselves and in the end, preferred that of Mrs Chhima to that of Mr Chhima.Did the Authority err in law in finding that the appellants each had an individual right as a joint owner of the property to deal with the property?[81] Although Mr McGurk accepted that legally, it was possible to sever a joint tenancy: McFarlane v The Chief Executive of the Department of Work and IncomeHC AK AP17-PL/02 4 July 2002, Harrison J, he submitted that, in the circumstances of this case, it was unreasonable to expect one party to do so. [82] Whatever the situation where only one party was applying for a benefit, it seems to me that the case here is different. It would be completely unrealistic to say that where both parties are receiving Social Welfare benefits and jointly own an asset from which they could obtain income, they could resist the application of the discretion under s 74(1)(d) on the basis that, as the asset was jointly owned, neither had sufficient control over it to sell it or lease it to create income. [83] The Authority had evidence that Mrs Chhima was involved, along with Mr Chhima, in making decisions about whether or not to accept offers to purchase the property and that, in fact, she advised him to reject several offers as they were not high enough.Whether as a matter of law the Authority was correct in determining that the discretion conferred by s 74(1)(d) should be exercised to calculate notional entitlement and grant the appellants benefits at a reduced rate?[84] Having determined that the Authority exercised their discretion with a proper understanding of the law and that their decisions were not unreasonable, it is not open to this Court to question whether or not they should have exercised their discretion.Conclusion[85] For the foregoing reasons, the answers to the questions posed in the respective cases stated are as follows: Mr Chhima: i) Noii) No iii) Yes Mrs Chhima i) No ii) No iii) No iv) No v) No [86] Both appeals are dismissed accordingly.Costs[87] The respondent, having been entirely successful, is entitled to an order for costs. If counsel are unable to resolve issues of quantum between themselves, they should file memoranda within three weeks from the date of release of this Judgment. Unless a hearing is sought, I will deal with any costs application on the papers. M A Frater J