HAYWARD v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 1667

HAYWARD v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC1667 [9 July 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-485-679[2018] NZHC 1667BETWEEN NEVILLE HAYWARDAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIAL DEVELOPMENTRespondentHearing: 8 May 2018Counsel: M D W King for AppellantC M Hutchinson and T Burgess for RespondentJudgment: 9 July 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 9 July 2018 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Weston Ward & Lascelles, ChristchurchCrown Law, Wellington[1] Mr Hayward's home was severely damaged by the February earthquake. Heand his 19-year-old daughter had to move out. He stayed with his mother until 8 May2011 before moving in with his daughter and her boyfriend for two to three weeks. Hethen returned to his property to stay in a shed for about nine months until the Councilinsisted he could not stay there. He then returned to stay with his daughter and herboyfriend. He stayed with them from March 2012 until June 2013. During theseperiods, he also had part time responsibility for the care of his two young, dependentchildren.[2] Mr Hayward was not insured and sought financial assistance pursuant to theTemporary Accommodation Assistance (Canterbury Earthquake) Programme (TAA)from the Ministry of Social Development. He was granted assistance at a two-personrate for the first period he was with his daughter and at a single rate for the secondperiod. His appeal to the Social Security Appeal Authority (the Authority) seeking atwo-person rate for the entire temporary accommodation period (May 2011 to June2013) was declined. This is an appeal against that decision. In this regard, threequestions have been referred to this Court for resolution:(a) Did the Authority err in determining that the assessment of householdsize for the purposes of the TAA must be made at the time a personapplies for that assistance?(b) Did the Authority err in law in its interpretation of how household sizeshould be assessed?(c) Was there any evidence on which the Authority could base its findingthat the appellant's household was a one-person household for theperiod from 11 May 2011 onwards?Background[3] The Authority's description of the background is not disputed. I adopt it.11 Mr King submits, however, that the Kerrs Road property was owned by Mr Hayward's sister andthat he was not only responsible for the sleepout rental, but for the entire rent.[4] Mr Hayward's home, a converted historic brewery tower, suffered significantdamage in the February 2011 earthquake in Christchurch.[5] At the time of the earthquake, the house was uninsured as a result of a mix-upwith payments which occurred in July 2010. Mr Hayward was then unable to obtaininsurance in the period after the September 2010 earthquake.[6] At the time of the February 2011 earthquake, Mr Hayward's daughter wasliving with him. She had been raised by Mr Hayward and lived with him until theFebruary earthquake. Immediately prior to the time of the earthquakes his daughter'sboyfriend was also living with them. A third person occupied a flat attached to themain building. In the period immediately following the earthquake, Mr Hayward andhis daughter moved to his mother's home. For the period 22 February 2011 to 8 May2011, accommodation assistance for board payments was paid to Mr Hayward'smother for his board.[7] Following the February earthquake, Mr Hayward's daughter and her boyfriendfound a house to rent at Kerrs Road. The house had an outside room which doubledas a laundry, available for him to occupy. Mr Hayward moved into this room in May2011, two to three weeks after his daughter moved to the Kerrs Road property. Hethen made an application for temporary accommodation assistance. His applicationwas declined over the phone. Mr Hayward understood that the reason he was declinedassistance was because he had no insurance. Because his only income was a singlerate of benefit at the time, and he had continuing mortgage payments in relation to hishome, he was simply not able to afford to pay his share of the rent for the property atKerrs Road. As a result, he moved back to a shed behind his home. However, fromtime-to-time he spent weekends in a campground and was obliged to meet that cost sothat he could provide reasonable accommodation for his two youngest children, bothof whom were under five years of age.[8] Mr Hayward said that he lived in poor conditions in the shed for nine monthsbefore he was forced out as a result of a Council requirement in March 2012. He thenmoved back to his daughter's flat and applied for temporary accommodationassistance for a second time on 13 March 2012. This application was also declined on8 May 2012. He sought a review of the decision in relation to this application on21 June 2012 which was declined on 27 August 2014. This ultimately resulted in anappeal to the Authority on 24 November 2014. Meanwhile, he remained living in theroom at Kerrs Road until his own property was sufficiently repaired for him to moveback in, in June 2013.The Authority's decision[9] The Authority identified that temporary assistance for Mr Haywardcommenced when his completed application form was received by the Ministry.2 Thisis not disputed. The Authority then assumed that the application should be assessedat the date of the application, and that the central issue was "how a homeowner'shousehold size should be assessed at the time of the application".[10] The Authority's answer was helpfully succinct. It stated:[21] Adopting a purposive approach to the interpretation of the provision,it seems likely that a variety of information may need to be taken into account.We infer that the purpose of fixing the amount of assistance payable on thebasis of household size, is that the size of the household will reflect the sizeof (and therefore the cost of) the accommodation required to house a displacedhousehold.[22] It is unlikely that it was intended to pay assistance based on the sizeof the household at the time of the event if members of the household decidedto move to different locations following the event. It may also be necessaryto consider why the size of the household may have increased since theearthquake event.[23] It is significant that the assistance is provided primarily forhomeowners. It is not generally granted to affected household members whoare not homeowners. The object of the programme is to reduce the burden onhomeowners who might be incurring the costs of both rent and mortgage/ratescosts.[24] We accept without reservation that at the time of the earthquake theappellant's household was a two-person household and he had been the solecaregiver for his daughter since she was five years old. We understand shewas 19 or 20 years of age at the time of the earthquake.[25] We have been advised that the property at Kerrs Road was rented inthe name of the appellant's daughter and her boyfriend. That is perhaps notsurprising, as the appellant appears not to have been in a financial position to2 The Authority's decision records he was paid at a one-person rate from 13 March 2012 to 28 June2013.take on the financial obligations of a tenancy agreement, but the decision torent the property was apparently not a joint decision and the appellant did notmove in at the same time as his daughter. We do not have a copy of the tenancyagreement. The appellant says he believes the rental was originally $300 perweek and was split three ways.[26] It is significant that the appellant was not the tenant and therefore hadno legal obligation to pay the rent for the Kerrs Road house other thanapparently as a subtenant, to pay for the cost of one room.[27] Had the appellant been the tenant of the house at Kerrs Road it wouldhave been a simple proposition to find that he had entered into a commitmentto provide for his household of two people which he needed to meet and heshould be classified as a two-person household. But that is not the case. Hisonly obligation was as a subtenant to pay a share of the rent for one person.Therefore, we conclude that the appellant's household size as at May 2011should be assessed as a one-person household.[28] In summary, we consider determination of household size must bemade at the time of application, taking into account the household size at thetime of the earthquake and the legal commitment made by the homeowner toprovide for the members of his or her quake-affected household and any otherrelevant matters.Statutory framework[11] The power to grant of temporary assistance is sourced in the Social SecurityAct 1964 (SSA). It states, relevantly for present purposes:1A PurposeThe purpose of this Act is—(a) ..(b) to enable in certain circumstances the provision of financial supportto people to help alleviate hardship:(c) to ensure that the financial support referred to in paragraphs (a) and(b) is provided to people taking into account—(i) that where appropriate they should use the resources availableto them before seeking financial support under this Act; and(ii) any financial support that they are eligible for or alreadyreceive, otherwise than under this Act, from publicly fundedsources:[12] The Minister for Social Development approved the TAA programme on16 February 2011. It was first gazetted on 3 March 2011. The programme has beenreshaped on several occasions. The March 2011 and March 2013 iterations aregermane to the present appeal.The March 2011 instrument[13] The March 2011 instrument stated the purpose of the TAA programme is:4 Purpose – The purpose of this programme is to provide specialassistance to homeowners and certain other people:(d) who require assistance to meet the costs of theirtemporary accommodation during the period theyneed to vacate their usual homes;[14] Temporary accommodation costs were defined as follows:Temporary accommodation costs, in relation to a person, means the costs ofany temporary accommodation for the person and the members of his or herfamily who usually reside with the person being either:(a) in relation to premises temporarily rented by the person, the amountpaid for rent of the premises, excluding any service costs included inthat rent and any arrears;(b) in relation to premises in which the person is a temporary boarder orlodger, the amount paid for board or lodgings (excluding any arrears);or(c) in relation to any other person, the costs of short-term accommodationin a holiday park, motel, hotel, or serviced apartment (excluding anyarrears).[15] Temporary accommodation assistance is then defined at cl 8, which relevantlystates:8 Temporary accommodation assistance – (1) Subclause (2) appliesto a person if the chief executive is satisfied that:(a) either:(i) the person has been required to vacate any affectedpremises because the premises are uninhabitable andthe person cannot reoccupy the premises untilremediation work is carried out;(d) either:(i) (ii) the person did not have insurance cover in respect ofthe affected premises or for temporaryaccommodation while the affected premises areuninhabitable or remediation work is being carriedout, and has exceptional circumstances to justify theprovision of financial assistance.[16] Subclause 8(2) then relevantly empowers the chief executive to make a grantas follows:(2) The chief executive may grant an applicant to whom this subclauseapplies, from a date and for a period the chief executive determines,temporary accommodation assistance to assist in meeting theapplicant's temporary accommodation costs if the chief executive issatisfied that the applicant:(a) intends to resume occupation of the affected premises as hisor her home as soon as remediation work is carried out; and(b) is not receiving, and his or her spouse or partner is notreceiving, an accommodation supplement or anaccommodation benefit in respect of his or her temporaryaccommodation costs; and(c) has taken all reasonable steps to minimise the person'sliability to pay temporary accommodation costs and theamount of those costs.[17] Rates of temporary assistance were, under this version of the programme:9 Rates of temporary accommodation assistance – The amount oftemporary accommodation assistance granted under clause 8(2) is:(a) For a person who is married or in a civil union or in a de factorelationship and has 1 or more dependent children, or for asole parent with 2 or more dependent children, $330.00 aweek;(b) for a person who is married or in a civil union or in a de factorelationship and has no dependent children and, or for a soleparent with 1 dependent child, $275.00 a week;(c) for any other person, $180.00 a week.[18] Assistance commenced on the latest of the following dates:10 Commencement of assistance – Temporary accommodationassistance must not be granted in respect of a period earlier than thelatest of the following dates:(a) The date on which the applicant ceased to occupy the affectedpremises as a home;(b) the date on which the applicant's insurance cover fortemporary accommodation (if any) expired;(c) the date on which the completed application form referred toin clause 7 was received by the department.[19] Assistance ended on the close of the earliest of the following dates:11 Ending of assistance – Temporary accommodation assistance endson the close of the earliest of the following dates:(a) The end of the period set by the chief executive under clause8(2);(b) the date on which the applicant ceases to incur temporaryaccommodation costs;(c) the date on which the applicant or his or her spouse or partner(if any) re-occupies the affected premises as a home;(d) the later of the following dates:(i) The date on which the affected premises becomesavailable for occupation as a home following thecompletion of remediation work;(ii) the last day of a reasonable period allowed by thechief executive following that date for the applicantto reoccupy the affected premises as a home.The March 2013 instrument[20] The March 2013 instrument introduced the "household concept". Thisinvolved three key changes for present purposes:(a) Household means "the person and the members of the person's familyusually residing with him or her; and members of a person's householdhas a corresponding meaning.(b) In cl 5(1) the definition of temporary accommodation costs is amendedto replace "his or her family who usually reside with the person" with"the person's household".(c) Clause 9 rates are amended as follows:7 Clause 9 amended (Rates of temporary accommodationassistance) – In clause 9, replace paragraphs (a) to (c) with:"(a) for a person whose household comprises 3 or morepeople, $330 a week;(b) for a person whose household comprises 2 people,$275 a week;(c) for a person whose household comprises 1 person,$180 a week."[21] Some general observations can be made about the purpose, policy and schemeof the TAA under both instruments:(a) The TAA is directed to alleviating hardship by providing assistance toquake affected homeowners and their families with temporaryaccommodation costs;(b) Temporary accommodation costs refer to rent or lodging "paid" or the"costs" of short term accommodation;(c) The rates for assistance depend on the numbers of persons needingaccommodation – that is:(i) Under the 2011 instrument, the homeowner, his or her partner,and his or her dependent children; or(ii) Under the 2013 instrument, the home owner and the membersof the family usually resident with him or her.[22] It is not disputed that Mr Hayward was a person who qualified for assistanceas a "homeowner" of earthquake damaged land.Jurisdiction on appeal[23] Appeals to this Court are by way of case stated on issues of law pursuant to s12Q of the SSA. The three issues are stated at [2].[24] I make a preliminary observation that the appeal to the Authority and the issuesstated on appeal to me, are premised on Mr Hayward's claim to a two-personentitlement, that is, based on his and his eldest daughter's accommodation needs. Inargument before me, however, the accommodation needs of Mr Hayward's twodependent children were brought into focus. I propose therefore to address thequestions on the basis upon which they were posited by the Authority, namely, basedon a two-person household claim. I will then separately address the significance ofthe two dependent children in the last part of my judgment.Did the Authority err in determining that the assessment of household size forthe purposes of the TAA must be made at the time a person applies for thatassistance?[25] Mr King for Mr Hayward submits:(a) The purpose of the TAA programme is to enable households affectedby the earthquakes to secure rental accommodation.(b) It does not make sense to define "household" at the time of theapplication, when, due to the earthquakes, families may have beenforced to separate.(c) Nor should the accommodation assistance be fixed by the cost of anapplicant's accommodation at the time of the application, because thatsimply benchmarks his assistance by reference to his ability to pay forthe accommodation.(d) Rather, consistent with the purpose of the SSA to alleviate hardship,any temporary accommodation assistance is directed to enabling a"household" at the time of the earthquake to continue to live together.(e) Any accommodation assistance should, therefore, should be fixed byreference to a two-pronged enquiry:(i) the household as at the date of the earthquake event unless:(ii) that household has been reduced; and(iii) the intention of that household is to remain reduced regardlessof the availability of the TAA at the household size as at the dateof the earthquake event.[26] Ms Hutchinson, for the Chief Executive, submits the usual date for assessmentis the date of application and there is nothing in the scheme of the TAA to suggest thatany other approach should be taken to the date of the assessment. This is supportedby the fact the Programme was made before the February 2011 earthquake.Assessment[27] The answer to the first question is no. I am satisfied that assessment of"household" at the date of application is correct. As noted, the basic purpose oftemporary accommodation assistance under both applicable instruments is to helphomeowners to obtain rent relief in accordance with their temporary housing needs.This accords with an overarching purpose of the SSA, recorded at s 1A(b), to enablein certain circumstances the provision of financial support to people to help alleviatehardship. But the scheme of both instruments is clearly designed to provide thatassistance according to the needs of the homeowner at the time of the application. Theexpress purpose of the instruments is to provide assistance to meet the "temporaryaccommodation costs" during the period "they need to vacate their usual home" andtemporary accommodation costs relate to the amount of rent or lodgings "paid" orcosts of short term accommodation. The assistance then ceases on the date theapplicant ceases to incur the costs. These basic requirements make it clear that housingneeds are not to be considered in the abstract. Rather, they are to be assessed byreference to the actual accommodation needs and costs of the applicant homeowner ata particular time. Logically, that is at the time of the application when those needs andcosts are known or ascertainable.[28] This does not mean that an applicant homeowner could not obtainaccommodation assistance for his or her family members if at the specific time of theapplication those members may be living elsewhere. A scheme designed to providepost-earthquake relief must be implemented realistically; members of a family mayhave initially dispersed because there was nowhere to accommodate them together atthat time. In this regard, the Authority noted:It is unlikely that [the scheme] was intended to pay assistance based on thesize of the household at the time of the event if members of the householddecided to move to different locations following the event.[29] If by this observation the Authority foreclosed the possibility of a familyobtaining accommodation assistance which enables them to repatriate, the Authoritywould have erred. Provided the assistance sought is needed at the time of theapplication to house the homeowner's household, then there is nothing in the schemeprecluding that prospect. However, I apprehend the Authority was simply observingthat the accommodation grant relates to actual accommodation needs and costs of thehomeowner applicant, rather than stipulating a rule that dispersed families cannotobtain accommodation relief that enables them to repatriate. This is evident from [28]of the decision, repeated here for convenience:[28] In summary, we consider determination of household size must bemade at the time of application, taking into account the household size at thetime of the earthquake and the legal commitment made by the homeowner toprovide for the members of his or her quake-affected household and any otherrelevant matters.[30] For reasons I will explain below, however, the "time of the application" mustinclude the Benefit Review and Appeal stages.Did the Authority err in its interpretation of how "household" size should beassessed?[31] Mr King submits that:(a) The Authority's determination that Mr Hayward's household size wasthat of a single-person household erroneously turns on whatMr Hayward could afford to pay at the time of the application, ratherthan what his household if fact was, namely him, his teenage daughterand his two younger children.(b) The Authority's approach lacked reference to the reality that manypeople faced post-22 February 2011 and runs contrary to the purposeof the TAA programme.(c) Thus, the test ought to be:The determination of household size must be made at the time of theevent, taking into account the household at the time of the event andthe homeowner's intention to provide for members of his or heraffected household, and any other relevant matters.The TAA is to become payable as at the date of the application if alegal commitment has been entered into by the homeowner to providefor members of the household or upon such time as a commitment isentered into.[32] Ms Hutchinson submits that 'household' only became relevant after theFebruary 2013 amendment. Before the amendment, the rate was set by reference tothe number of dependent children. In any event, household refers to the number ofpersons usually residing with the applicant and the level of assistance needed fortemporary accommodation. The Authority correctly assessed these needs.Assessment[33] The answer to question 2 is no. The 2011 instrument enabled accommodationassistance at rates based on the number of dependent children. Mr Hayward'sapplication for assistance stated that he had no dependent children. Furthermore, MrHayward's eldest daughter is not a dependent child in terms of the SSA (that is, shewas older than 18 at the time of the applications).3 Accordingly, Mr Hayward was3 In correspondence to the Benefit Review Committee Mr Hayward says she was 19 at the time ofthe February earthquake.not eligible for a two-person rate until at least the introduction of the 2013 instrumentin respect of his eldest daughter.[34] In terms of the 2013 instrument, as recorded at [28] of the decision, theAuthority in fact expressly addressed Mr Hayward's actual household's needs andcosts: including by reference to his household size at the time of earthquake and anylegal commitments made to house the household. Save in one (potential) respect Iwill come to below at [40], in doing so it properly framed its assessment of MrHayward's then "household" requirements for housing and therefore temporaryaccommodation assistance.[35] I also reject the contention that accommodation assistance should be based onMr Hayward's theoretical household needs. In this regard, it is important todifferentiate between potential eligibility for assistance and whether any assistance,and in what amount, should in fact be granted. Eligibility attaches to usually residentmembers of the person's family. However, the quantum of any assistance is clearlylinked to actual accommodation costs to be incurred or already incurred by thehomeowner to accommodate those members. On all the available evidence,Mr Hayward's daughter was plainly supporting herself at the time of the applicationand Mr Hayward was only paying, and legally liable to pay, as a subtenant for a singleroom. I am therefore satisfied that the Authority did not err in law insofar as it assessedhousehold size based on Mr Hayward's claimed two-person household.[36] For completeness, nothing I say here should be taken to suggest that the ChiefExecutive was empowered to reject applications simply because the homeowner wasnot legally committed to a rental at the time of the application. Whether thehomeowner had demonstrated eligibility had to be assessed on the facts at the time ofthe application, which may or may not include a binding rental commitment. But, thelimited basis upon which Mr Hayward was bound to pay rent for a single room was arelevant factor in this case.Was there evidence on which the Authority could base its finding that theappellant's household was a one-person household?[37] Yes, as that finding relates to Mr Hayward's oldest daughter.[38] As the Authority correctly noted, Mr Hayward's daughter held the tenancy atthe Kerrs Road address. By contrast, Mr Hayward held a sub-tenancy or boardingarrangement at the same address. Mr King's submission that she should, nevertheless,be treated as a member of Mr Hayward's household ignores that the object of theinstrument is to provide assistance to homeowners:(d) who require assistance to meet the costs of their temporaryaccommodation during the period they need to vacate their usualhomes[39] It is no answer to this basic point that Mr Hayward would or could haveassumed the tenancy if he had been granted temporary accommodation assistance. Atno stage did Mr Hayward assume, or purport to assume responsibility for his olderdaughter or the Kerrs Road tenancy, other than as a subtenant (or boarder). I thereforesee no error in the conclusions reached by the Authority as it relates to Mr Haywardand his older daughter.The two dependent children[40] This dispenses with the case as formally stated. But, as noted the appeal beforeme was advanced by reference to the needs of Mr Hayward's two youngest children.In this regard, the Authority noted, when identifying the effect of the Chief Executive'sdecision in May 2011:[30] There were significant consequences flowing from that decision[forcing Mr Hayward out of Kerrs Road] for the appellant. He was forced tolive in very difficult conditions and to pay temporary accommodation atweekends so that he could adequately care for his younger children.[41] There was therefore evidence before the Authority contradicting the primaryfinding of fact, namely that Mr Hayward had a one-person household only. There wasalso material before the Authority that Mr Hayward made the Benefit ReviewCommittee aware that he had the care of his dependent son and daughter. In a letteraddressed to the Benefit Review Committee, supplied as supplementary materials tothe Authority, he stated:They were both under five at the time of the earthquake. The boy stays withme now three days and nights per fortnight, plus two afternoons and evenings,and the girl stays with me five days and nights per fortnight.Each is a separate shared parenting order by the Family Court, and so it meansI have the smaller children in my care for eight days and nights a fortnight,over half the week really.[42] Based on this information, Mr Hayward was prima facie eligible for assistanceat least from time to time as a three-person household, provided he was incurringtemporary accommodation costs in respect of his two dependent children.[43] I acknowledge the Ministry's point that Mr Hayward cannot be entitled toassistance unless he provides the information to support it. Although the Ministry ofSocial Development has a general obligation to assess applicants' needs and pointthem towards entitlements, unless they are put on notice that they might haveincomplete or incorrect information, they are under no duty to second guess orinvestigate further.4 Here, because Mr Hayward advised in his application he did nothave dependent children, he could not have legitimately expected to receive asupplementary benefit to provide for them without correcting that advice. Thisposition was outlined in the Privacy Statement at the end of his application:You are not required to give us information, but if you do not give us all theinformation we ask for, your application for assistance may be declined.[44] Any application based on this information that is finally determined iseffectively binding on Mr Hayward.5 But, if on a review of a live application theapplicant makes the Ministry aware of his legitimate household needs, the Ministrycannot simply ignore it. It could not have been contemplated by Parliament that theMinistry is hand tied by the literal terms of an application document at the review orappeal stages when dealing with a legislative policy directed to relieving hardship.6In my view, therefore, the assessment of the merits of the application must includeinformation supplied during the review and appellate process.[45] Accordingly, there was an evidential basis for the Authority to find that MrHayward had responsibility, from time to time, for a three-person household. This4 Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418 at [43]-[44].5 Section 80AA of the Social Security Act makes it clear that back-dating of benefits can only takeplace when there has been erroneous action or inaction on the part of the department; failure of anapplicant to disclose relevant information is not sufficient.6 See Koroua v Chief Executive of the Ministry of Social Development, above n 4, at [16]-[19].could be framed as an error of law insofar as the Authority's decision contradicts theevidence.7Relief?[46] Even so, I am not prepared to grant relief. First, Mr Hayward made hisapplication on the basis he had no dependents, and then pursued his review applicationand appeal on a two-person household basis. It therefore was never his case that hewas entitled to a three-person rate. Second, Mr Hayward only incurred $110 in sub-tenancy costs for a single room during the relevant period. There is no evidence tosuggest that Mr Hayward paid any additional accommodation cost specifically for histwo dependent children throughout the relevant application period (that is, from March2012). The corollary of this is that the Authority's error (to the extent there was one)has no material effect on Mr Hayward's actual entitlement for accommodationassistance. The Chief Executive could not pay, pursuant to s 8(2) of the TAA scheme,an accommodation grant at a three-person rate of $330 when costs to accommodatethree people were never, in fact, incurred.[47] Third, I also apprehend that Mr Hayward is effectively seeking damages inrespect of a lost opportunity to obtain a larger accommodation grant. He said as muchto the adjudicator. But that reveals the underlying flaw in Mr Hayward's appeal. It isnot the function of the present appeal process to compensate him for hypotheticalaccommodation costs.[48] Having said that, Mr Hayward has not been well served by the Ministry. He ispartially to blame for this. His applications led the Ministry astray. But once theMinistry had information that Mr Hayward had the care of two dependent children, itshould have acted proactively to assist him so that he could provide appropriateaccommodation for them according to their needs. By the time the review wascompleted, the need for accommodation assistance had long expired. It is also7 As noted in Koroua v Chief Executive of the Ministry of Social Development [2013] NZHC 3418at [9] and Bryson v Three Foot Six Ltd [2005] NZSC, [2005] 3 NZLR 721 at [26], error of law onsufficiency of evidence grounds includes: (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 contradictsthe only true and reasonable conclusion of fact based on the evidence.inferable from the available evidence that Mr Hayward and his two dependent childrenendured periods of substandard accommodation which could and should have beenavoided. For this reason, it is hardly surprising the Authority recommended an exgratia payment. It might be thought, however, that the $2,000 ex gratia payment latermade by the Chief Executive was parsimonious in this context.Outcome[49] The answer to the first two questions is no. The answer to the third question isyes. The case on appeal is therefore dismissed. Finally, I have considered whetherevidence about Mr Hayward's dependent children should have produced a differentresult. I am satisfied it does not. He did not seek payment for or incur additional costsfor them. Any referral back would be pointless.Costs[50] If costs cannot be agreed, submissions may be filed, no longer than three pages,within five working days. The Ministry was successful. However, given thatMr Hayward is legally aided and his appeal was not without some merit, my currentthinking is costs should lie where they fall.