KOROUA v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3418 [17 December 2013]

KOROUA v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3418 [17 December 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2013-485-2957[2013] NZHC 3418BETWEEN MATIU KOROUAAppellantAND CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 12 November 2013Counsel: S J Fraser for AppellantT Hallett-Hook for RespondentJudgment: 17 December 2013JUDGMENT OF THE HON JUSTICE KÓS[1] Mr Matiu Koroua's dealings with the Ministry of Social Development over20 years had been on the basis that he was born in October 1944. In fact, as he knew, his birth date was four years earlier – October 1940.[2] In September 2003 he went to a Ministry branch seeking the unemployment benefit. He provided a declaration sworn before a Justice of the Peace. It identified him. And it repeated that his birth date was in October 1944. He was given the benefit temporarily, on the proviso he supplied a birth certificate or passport within 28 days. This he did not do. So that benefit ceased.[3] In August 2009 the Ministry notified Mr Koroua that he would soon turn 65 and become eligible for New Zealand superannuation. That was of course based on the October 1944 birth date entered in the Ministry system. Mr Koroua responded in September 2009. He did not attend any scheduled meetings with the Ministry until February 2010. Only at that meeting did Mr Koroua disclose that his birth date was actually October 1940.[4] Mr Koroua contends that in 2003 the Ministry should have been more "pro-active". It should have taken steps itself to obtain his birth certificate. If need be, byobtaining waiver of his privacy rights. Had it done so, the Ministry records would have been corrected. He would then have been notified of his entitlement to New Zealand superannuation four years earlier. He argues that payment of New Zealand superannuation should be backdated to October 2005.[5] A Benefits Review Committee held his entitlement commenced in February 2010. It treated that as the time of application. Entitlement to payment of a benefit is determined by the later of eligibility or application.1 Mr Koroua appealed to the Social Security Appeals Authority, still contending for backdating to October 2005. The Authority dismissed his appeal.[6] Mr Koroua appeals to the High Court on a question of law, by way of case stated, under s 12Q of the Social Security Act 1964.2Appeal by way of case stated[7] The following question of law has been stated for my opinion:Was there any evidence on which the Authority could conclude that there was no error or omission on the part of the Ministry which resulted in the appellant failing to apply for New Zealand superannuation in 2005 when he attained the age of 65 years?[8] The case stated procedure was first devised in England in the mid 19th century.3 It is not an appeal by way of rehearing. The Court does not review the whole of the case from scratch. Rather it is a "form of consultation", with the Court,to obtain an answer to a specific point of law.4[9] The question stated concerns evidential sufficiency. In Bryson v Three Foot Six Ltd the Supreme Court set out the test for determining whether a fact-finding1 New Zealand Superannuation and Retirement Income Act 2001, s 11.2 Herein, the Act.3 Boljevic v Chief Executive of the Ministry of Social Development [2012] NZAR 280 (HC) at [22]; Holdsworth A History of English Law (London, Sweet & Maxwell, 1965) vol 16 at 162.4 Harris Simon & Co Ltd v Manchester City Council [1975] 1 WLR 100 (QB) at 105.body's conclusion on the facts was so insupportable as to amount to an error of law.5It sets a "very high hurdle" for the appellant.6 An erroneous factual finding amounts to an error of law only where:7(a) there is no evidence to support the determination;(b) the evidence is inconsistent with, and contradictory of, the findings of fact; or(c) it contradicts the only true and reasonable conclusion of fact based on the evidence.[10] Mr Fraser argued that there is an exception to the test above, based on the following passage in Bryson:8Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.However that passage does not set out an exception to Bryson. It sets out a separate and distinct error of law. Failure to take into account a relevancy, or the taking into account of an irrelevancy, is an error of law. But it is different from the question posed here – the sufficiency of the evidence underpinning the Authority'sconclusion.Statutory framework[11] In 2003 the Act did not have the detailed statement of purpose that was introduced later in 2007. But its broad purpose at the time was described by the Court of Appeal in Ruka v Department of Social Welfare:9The Social Security Act 1964 does not have a statement of purpose as is often found in more modern legislation. Its long title says only that it is an5 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.6 At [27].7 At [26].8 At [25].9 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 161.Act to consolidate and amend the Social Security Act 1938 and itsamendments. But the 1938 Act's long title does provide some guidance:An Act to provide for the Payment of Superannuation Benefits and of other Benefits designed to safeguard the People of New Zealand from disabilities arising from Age, Sickness, Widowhood, Orphanhood, Unemployment, or other Exceptional Conditions; to provide a System whereby Medical and Hospital Treatment will be made available to Persons requiring such Treatment; and, further, to provide such other Benefits as may be necessary to maintain and promote the Health and General Welfare of the Community.The concern of the legislation was with the provision of financial help for people who for one reason or another could not adequately support themselves.[12] Entitlement to New Zealand superannuation depends on age (one must be a minimum of 65 years old) and residency in New Zealand. Section 11(1) of the New Zealand Superannuation and Retirement Income Act 200110 provides that payment commences on the date the applicant becomes entitled to receive it, or the date on which the application for it is received, whichever is the later. On that basis, Mr Koroua's payments could not be backdated to the date of entitlement.[13] But entitlement is expressly subject to s 80AA of the Act: s 11(2) of the Superannuation Act. Section 80AA provides:80AA Minister may allow back-dating of benefit where earlier failure to grant it based on error(1) With the consent of the Minister (given in relation to a particular applicant or applicants of a stated kind or description) a benefit (or a benefit of a stated kind) may commence at a time earlier than the time an application for it was made.(2) The Minister must not give consent unless satisfied that—(a) in the case of a particular applicant, the particular applicant—(i) could not reasonably have been expected to apply at the earlier time because of some erroneous action or inaction on the part of the department; or(ii) at or before the earlier time, tried to apply or applied incompletely, and did not proceed because of some erroneous action or inaction on the part of the department; or10 Herein the Superannuation Act.(b) in the case of applicants of a stated kind or description,—(i) applicants of that kind or description could not reasonably have been expected to apply at earlier times because of some erroneous action or inaction on the part of the department in relation to applicants of that kind or description; or(ii) at earlier times, some applicants of that kind or description tried to apply or applied incompletely, and did not proceed because of some erroneous action or inaction on the part of the department.(3) For the purposes of subsection (2), examples of erroneous action or inaction are—(a) giving wrong advice:(b) erroneously failing or refusing to provide information, help, or some document or form.(4) Consent given under subsection (1) in relation to applicants of a stated kind or description does not necessarily allow all the benefits concerned to commence at the same time.(5) Subsection (1) does not enable the commencement of a benefit at a time at which the person to whom it is granted was not eligible for it.(6) If the Minister delegates to the chief executive the exercise of the power to consent conferred by subsection (1), its exercise by the chief executive (or a refusal by the chief executive to exercise it) is a decision under this Part for the purposes of section 12J.[14] Backdating is, therefore, prohibited unless one of the stated exceptions applies: s 80AA(2). There are two limbs that might permit backdating here. They are ss 80AA(2)(a)(i) and (ii). That is, the applicant either could not reasonably have been expected to apply at an earlier time, or tried to apply – and did not proceed in each case because of some erroneous action or inaction on the part of the Ministry.[15] Although s 80AA was only introduced in 2007, the Ministry does not dispute its potential application in this case.11 However it says that in fact it cannot apply here.[16] The Ministry accepts, also, entirely apart from s 80AA, that it has a broader duty of active assistance to welfare applicants. In general, as McGechan J put it in11 This is consistent with the approach taken by Allan J in IAM v Chief Executive of the Ministry of Social Development [2013] NZHC 762 at [17].Hall v Director-General of Social Welfare, the Ministry should be "proactive in seeing to welfare, and not defensive or bureaucratic".12[17] In Chief Executive Department of Work and Income v Vicary Gendall J noted what was said in Hall and went on to say that the Ministry:13... should not refuse to assist simply because of the technicalities of an incorrect application... However the Authority accepts, as it must, that the Act does not place a duty on the Department to invite applications where no inquiry for assistance has been made. That is abundantly clear. That was the position here.[18] In Chief Executive Department of Work and Income v Scoble the respondent beneficiary had applied for an accommodation supplement benefit after Housing New Zealand began charging its tenants market rents. She was also eligible for a tenure protection allowance, but being unaware of its existence, did not apply for it until six years later. Doogue J held:14Applicants for benefits come from those most in need in our community. They will often be persons lacking the requisite skills to identify or specify the benefits to which they might be entitled. I cannot contemplate that Parliament would have intended that the most disadvantaged members of our community should be further disadvantaged if their applications misnamed or failed to name the precise monetary benefits to which they are entitled under the Act.[19] In Taylor v Chief Executive of the Department of Work and Income the appellant had recently been released from prison.15 He applied for a special needs grant for bond and rent. He also filled out an income support review form. Besidethe fields marked "special benefit" and "disability allowance" the appellant hadsimply placed a question mark. The appellant contended that as a matter of law, that amounted to an application for a special benefit. MacKenzie J held that it did not:16Those who are in need are not to be deprived of the benefits to which the law entitles them, by an overly prescriptive and bureaucratic approach, and the Department should be proactive in ascertaining needs. But that must be viewed in the light of the statutory scheme, which involves persons who are in need being required to make their needs, in a broad sense, known to the12 Hall v Director-General of Social Welfare [1997] NZFLR 902 (HC) at 912.13 Department of Work and Income v Vicary [2001] NZAR 628 (HC) at [41].14 Chief Executive Department of Work and Income v Scoble [2001] NZAR 1011 (HC) at [30].15 Taylor v Chief Executive of the Department of Work and Income [2005] NZAR 371 (HC).16 At [16].Department by way of a claim... In light of that, there must in my view be a sufficiently clear identification of the need to enable the Department to give consideration to that need, and the way in which it can best be met, before a claim or an application can be said to have been made.Whether or not the inscription on the income support review form amounted to an application for a special benefit was a question of fact. It could not be said, as a matter of law, that noting a question mark against the form amounted to an application.17Evidence before Appeal Authority[20] A copy of the Ministry's records relating to Mr Koroua was before theAuthority.18 Mr Koroua first revealed that he was born in 1940, not 1944, on 12 February 2010. The Ministry ultimately backdated his superannuation to thatdate. Mr Koroua's birth certificate reveals he actually turned 65 on 14 October 2005. This is the date he submits the Ministry should backdate his superannuation payments to.[21] The records show Mr Koroua first applied for the unemployment benefit in January 1983. He gave his name as Matthew Tai. He gave his date of birth as 14 October 1944. He did this, repeatedly and consistently, in later applications. InAugust 2005 his name was updated to Matiu Tai in the Ministry's records.[22] Mr Koroua's last recorded interaction with the Ministry, prior to the August2009 letter in which the Ministry informed him he might soon be eligible for superannuation, was on 12 March 2007. He applied for an accommodation supplement. He again gave his date of birth as 14 October 1944. That form appearsto have been written in another's handwriting. But a form filled out on 22 February 2007 is clearly written in Mr Koroua's handwriting. It too states his date of birth as 14 October 1944.17 At [17].18 Pursuant to the Social Security Act 1964, s 12K(4)(e).Mr Koroua's identity[23] A copy of Mr Koroua's birth certificate (first provided to the Ministry on21 October 2011) reveals that his legal name is Matiu Koroua and that he was born on 14 October 1940 in Waioweka, Bay of Plenty. A letter from Te Kura Kaupapa Maori O Waioweka was also placed before the Authority. The school's records showthat a student called Mathew Tai was enrolled in 1946. His date of birth was listed as 14 October 1940. This, along with other consistent evidence given by Mr Koroua,formed the Authority's basis for concluding that Mathew Tai and Matiu Koroua are the same person.[24] Mr Koroua gave evidence that he used the names Matiu, Matthew and Mathew interchangeably. He did not know that his surname was legally Koroua.His adoptive father's name was Tai. He always believed it to be his too.Mr Koroua's date of birth[25] Mr Koroua's only formal identification document was a paper driver'slicence dating from July 1983. He presented it to the Ministry on a number of occasions. It appeared to state that he was born on 14 October 1944. In fact he had changed the date from 1940 to 1944 to make himself appear younger. He said:I knew that was my real date 1940, I had known, I took advantage when the licence got wet and I put the 4, number 4 on it... and the other one had been sort of blotted out yeah...Mr Koroua alluded to the fact that he was a truck driver at the time, and thought it would be easier to obtain work if he appeared younger. The effect of Mr Koroua'sevidence is that he always knew his correct date of birth:Ms Wallace: So over quite a long time you told the Ministry that youwere born in 1944 knowing that it wasn't correct?Mr Koroua: Yes that was my fault.[26] When challenged as to why he did not inform the Ministry of his true birth date, Mr Koroua was vague. He said:Mr Howell: I don't know whether you explained it to Mrs Te Hira or not that why you didn't start putting your correct birth date down, do you wantto explain that?Mr Koroua: No, no I won't, I think I gave them a fair reason, a fair enough reason and I'll just stick to that.[27] When pressed, Mr Koroua said that in 2009 he revealed his true birth date because he knew he was entitled to a pension and wanted "a better bonus":Ms Wallace: So what happened in 2009? All these years you were telling people you were born in 1944, what happened in 2009 that changed your situation on that?Mr Koroua: Oh no that was going on long before that 2009 that went on, it was beyond that 2009.Ms Wallace: Yes so when did you decide to correct your name again?Mr Koroua: Oh correct it yeah.Ms Wallace: Correct your birth date sorry.Mr Koroua: When I knew I was coming up and finishing, just to get a better bonus out of the Government.Ms Wallace: So in 2009 you thought you were coming up for the pension?Mr Koroua: Yeah.Ms Wallace: So what age did you think you had to be to get the pension?Mr Koroua: Oh everyone knows that, 65.Ms Wallace: 65?Mr Koroua: Yeah.Authority decision[28] On the basis of this evidence above, the Authority said:[20] It is very clear that the appellant always represented to the Ministry that he was born in 1944... At the hearing before us he indicated he had changed his age on his licence because he wanted to appear younger than his actual age... In short he knew his age but had taken steps to disguise it.[29] Mr Koroua said he had only learned of his true date of birth at a tangi in 2006. That was clearly inconsistent with the evidence he gave at the hearing. It isalso inconsistent with the documentary evidence. Mr Koroua admitted altering the birth date on his driver's licence date from 1940 to 1944, and it is probable that he did this long before 2006. In any case, the Authority held:[21] If the appellant was born at an earlier date than 1944 then it is difficult to understand why he did not inform the Ministry in 2004 or 2005 of his correct birth date. He did not do so. He now says he became aware he was born in 1940 in 2006. Again he failed to tell the Ministry.[22] It was the appellant's responsibility to provide correct information to the Ministry.[30] The Authority then concluded that that evidence disclosed no basis upon which the correction power contained in s 80AA could be used to backdate Mr Koroua's superannuation to 2005.[31] The Authority went on to consider whether the Ministry's broader duty ofproactive assistance set out in Vicary and Scoble applied. The Authority held that the principle in Scoble is largely codified in s 80AA. (I would agree that failure to meet the Scoble duty of active assistance would amount to an "erroneous action or inaction on the part of the Department".)[32] Accordingly the Authority said:[36] If the Ministry is in possession of the information that an applicant for a benefit is aged 65 and the residence criteria are met we would expect an application for New Zealand Superannuation to be invited. Section 80AA may apply if the beneficiary is not alerted to their eligibility and an application invited at that point....[39] Instead the information available to the Ministry at the time of the application for Unemployment Benefit in August 2005 was that the appellant was a person who had recently been released from prison, he was aged at that time 61 years and he needed financial support... There was nothing however that might have alerted the Ministry to the fact that the appellant was now aged 65 years and eligible for New Zealand Superannuation.[33] The Authority concluded:[40] ... we do not think the Ministry can be held accountable for theappellant's failure to provide correct information about himself or provide a birth certificate when asked to do so.Appeal[34] As noted at [10], the appellant's submissions were not squarely directed at thepoint of law stated by the Authority. Rather they also addressed an alleged failure to consider a relevant consideration. Mr Fraser submitted that the Ministry verged into erroneous inaction when in late 2003 it refused to grant Mr Koroua the unemployment benefit due to a lack of primary identification. It had a duty to assistin obtaining a birth certificate. If Mr Koroua's birth certificate had been obtained,the Ministry would have known his true birth date, invited him to apply for superannuation in 2005, and he would have applied.[35] When pressed, Mr Fraser's argument came down to these two points:(a) the Ministry should, in 2003, have done more than just askMr Koroua to get a birth certificate. It should have taken steps itself to procure one (obtaining privacy waivers).(b) The Authority then failed to consider the evidence as to there being a material omission in 2003 by the Ministry (i.e point (a)) – such that the answer to the question posed must be "No". Essentially, it iseither a decision that is irrational given the whole of the evidence, or it is flawed because of failure to consider a relevancy.Ministry response[36] The respondent submits it was open to the Authority to conclude there was no erroneous action or inaction committed by the Ministry. In the circumstances, theMinistry was under no obligation to fetch Mr Koroua's birth certificate. Further,even if it was an error, Mr Koroua could still have reasonably been expected to apply for superannuation in 2005. He always knew his true date of birth and that he needed to be 65 years old to claim superannuation. Therefore s 80AA cannot apply.Discussion[37] I am clear that the present appeal must be dismissed.[38] First, entitlement to payment of New Zealand superannuation is determined by the later of eligibility or application.19 Here Mr Koroua was very late in applying. But his ability to backdate and recoup superannuation for the period between his turning 65 and his date of application depends entirely on his falling within s 80AA(2). Only if he does so can payment be backdated.[39] Secondly, the evidence is absolutely clear that Mr Koroua:(a) admits he always knew what his date of birth was;(b) was aware, too, that he would be eligible for New Zealand superannuation at 65;(c) did not provide his correct date of birth to the Ministry until February 2010; and(d) is not intellectually disabled.[40] Thirdly, given these circumstances, s 80AA(2) cannot apply here.[41] The first limb20 cannot apply. Nothing done by the Ministry deterred Mr Koroua from applying, so that (as a result of that Ministry default) he could not reasonably have been expected to apply in 2005. Mr Koroua knew his age, and knew he was eligible at 65. Why he did not apply before 2009 is a mystery. The Ministry did meet its Scoble duty of pro-activity in 2009: it wrote to Mr Koroua two months ahead of what it thought his 65th birthday was. The source of the erroneous date was none other than Mr Koroua himself. As he accepted, it was his own fault.Certainly it was not the Ministry's.[42] The second limb21 does not apply either. He made no application for New Zealand superannuation before 2010. The fact that he applied for other benefits beforehand does not change matters.19 New Zealand Superannuation and Retirement Income Act 2001, s 11.20 Section 80AA(2)(a)(i). See [13] above.21 Section 80AA(2)(a)(ii).[43] Fourthly, where an applicant for a benefit deliberately misstates information (such as a birth date) to the Ministry, it exceeds the duty of active assistance stated inHall, Vicary and Scoble, and provided for in s 80AA(2) to expect the Ministry to second-guess the information provided. Unless the Ministry is put on notice by the circumstances of the application that the information given to it is likely to be erroneous, it has no duty to check it further.[44] The Ministry's obligation of active assistance requires the Ministry to assess broadly the needs of applicants on the information it has available, directing them towards their entitlements. It does not extend to the Ministry itself obtaining the birth certificate of a man (not apparently lacking in capacity) for identification purposes. Nor, given the circumstances, was the Ministry required to go behind the 1944 birth date Mr Koroua provided in 1983, and repeatedly thereafter.[45] By contrast, the situation might have been different if Mr Koroua had given both dates in 2003 (as he later did in 2010). Or if Mr Koroua was quite obviously aged more than 65. Then the Ministry would have been put on notice and had a duty to inquire further. And if Mr Koroua had presented as obviously intellectually disabled then the Ministry might well have had a duty to contact other social agencies to assess the accuracy of his statements and his needs.[46] Fifthly, the question therefore becomes whether the Authority's finding thatthere was no other basis to backdate Mr Koroua's superannuation to 2005 lacked anyadequate evidential underpinning. In my view the conclusion plainly had an evidential foundation. Moreover, it was the only logical conclusion that could be reached on the evidence. There was no basis available on that evidence to engage either limb of s 80AA(2). It cannot be said to be an irrational conclusion given the evidence available at the hearing.[47] It follows from this that the answer to the question of law posed for myconsideration is "Yes".Result[48] I regret I cannot assist Mr Koroua here. But there is no basis available at law for him to recoup the extra superannuation he would have received had he applied earlier. That course is prohibited unless the Ministry was at fault in his applying late. It was not.[49] I express my appreciation to Mr Fraser and his firm for the assistance they have given to Mr Koroua.[50] Appeal dismissed.Stephen Kós JSolicitors:John Dean Law Office, Wellington for AppellantCrown Law, Wellington for Respondent