CERAMALUS V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2011-485-001004

CERAMALUS V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2011-485-001004 [30 March 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2011-485-001004[2012] NZHC 587BETWEEN NOBILANGELO CERAMALUSAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 13 October 2011Appearances: Appellant in personT I Hallett-Hook for the Chief ExecutiveJudgment: 30 March 2012RESERVED JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Friday, 30 March 2012 at 12:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Crown Law, PO Box 2858, Wellington 6140.And to: N Ceramalus, 2-4 O'Brien Road, Rocky Bay, Waiheke Island.Introduction[1] The appellant appeals by way of case stated against the decision of the Social Security Appeal Authority dated 14 February 2011 upholding a decision of the Chief Executive of the Ministry of Social Development confirmed by the Benefits Review Committee to cancel the appellant's unemployment benefit from 22 October 2007 onthe basis that he no longer qualified for the benefit.Factual background[2] The appellant was granted the unemployment benefit on 24 June 2004.[3] On 19 October 2007 the appellant told the Ministry of Social Development that he had been elected as a member of the Waiheke Community Board. He was advised that he may still be able to receive the unemployment benefit depending on how much he earned in his role as a Community Board member but that in addition to the income test he would still need to satisfy eligibility criteria, in particular, being available for full-time employment, for this benefit. It was also explained to him that if he came off the unemployment benefit that he might still qualify for additional help depending on income, assets and costs. The appellant told the Ministry that he would contact them once he knew more about the income and time requirements of his new role.[4] The appellant then emailed his case manager to advise her that, now he had been elected to the Community Board, so much of his time would be taken up that he would not be able to accept a full-time employment position even if one was offered to him.[5] The appellant's unemployment benefit was suspended on 29 October 2007effective from 22 October 2007. After further correspondence about the need to be available for full-time employment, the appellant's unemployment benefit wascancelled and he was transferred to non-beneficiary assistance.[6] Over two years later, on 16 February 2010, the appellant applied to review the decision to cancel his unemployment benefit. He was granted leave to apply out of time.Decisions of Benefits Review Committee and Social Security Appeal Authority[7] Both the Benefits Review Committee at first instance and the Social Security Appeal Authority on appeal upheld the Ministry's decision to cancel the appellant'sunemployment benefit.[8] The position the appellant adopted before the Benefits Review Committee and the Social Security Appeal Authority was that his role as a member of a Community Board was a full-time commitment which prevented him from taking on other employment. He argued that the criteria for an unemployment benefit in s 89(1)(a) of the Social Security Act 1964 ("the Act") should be read in a way that acknowledged this full-time commitment as job seeking activity.[9] The Authority accepted that the appellant was committed to his role as a member of the Community Board in a way that meant it was a full-time commitment for him but rejected his interpretation of the s 89(1)(a) criteria. As a result it found that he failed to meet the job seeker requirements in s 89(1)(a) because he was not available for or willing and able to undertake additional employment outside of his Community Board role nor was he taking reasonable steps to find full-time employment during his time as a member of the Community Board. As a result he was found to be ineligible for an unemployment benefit under s 89 of the Act or an unemployment hardship benefit under s 90.Appellant's benefits[10] During his three-year term as a member of the Waiheke Community Board from October 2007 to October 2010, the appellant received remuneration of $10,000 per annum (a gross income of $192.31 per week). In addition, he received an accommodation supplement from the Ministry of Social Development throughout the three-year term. He also received temporary additional support payments fromthe Ministry until 28 February 2008 and then again from 22 October 2009. As at 19 October 2010, the accommodation supplement and temporary additional support payments totalled $158.24 per week. As at the same date the appellant also received a disability allowance of $12.15 per week.[11] The unemployment benefit at the time was $212.06 per week or $19.75 per week more than the remuneration he was receiving as a member of the Waiheke Community Board. If the appellant had received the unemployment benefit while a member of the Board, his benefit would accordingly have been abated to take account of his income as a member of the Board. The appeal therefore concerns very little money. The appellant, however, sees it as a matter of principle.[12] The appellant describes it thus:[9] On the face of it this case is a trivial matter. Of course on the tiny canvas of my life it was not and is not trivial, but on the vast canvas of great matters it may at first seem so. But it is in fact of fundamental importance. For in a democratic society it is vital that the democratic will of the people can be expressed freely and fairly. Therefore any action, particularly official action, that interferes with free and fair elections, that interferes with the democratic process, that interferes with making available a choice of candidates that is truly democratic, truly representative and truly unencumbered, and interferes with the ability of those elected to carry out their democratic duties is a great evil. What caused the predicament in which I found myself was just that: unlawful interference with the democratic process of selecting elected officials in New Zealand's localgovernment, and unlawful interference with the carrying out of their sworn duties. Thus the unlawful assault on my personal circumstances was a microcosm of the chronic unlawful assault on our local democracy. Therefore this case, which involves an uncommon, perhaps unique, set of circumstances, whilst exposing an evil done me also exposes an evil that has long afflicted our local government: and therefore resolution for me can alsoen passante be resolution for the nation.Nature of Appeal[13] This is not a general appeal but an appeal on three specified questions of law. The questions of law for the opinion of the Court are:(a) Was the Authority's interpretation of the criteria in s 89 of the Social Security Act 1964 correct?(b) Was there any evidence on which the Authority could conclude that the appellant did not satisfy the criteria in s 89(1)(a) of the Act?(c) Was the Authority's interpretation of s 90 of the Social Security Act 1964 correct?[14] The appellant seeks to include a fourth question for the opinion of the Court,namely, "Was the Authority correct not to consider the alternative of ruling under s 61 of the Act?" Section 61 of the Act provides that the Chief Executive may grant an emergency benefit in cases of hardship.[15] It is not appropriate, however, for a fourth question of law to be added to this case stated appeal. The appellant first raised the issue of whether he should have received an emergency benefit in his supplementary submissions to the Authority. Under s 12J(1) of the Act, a right of appeal to the Authority is restricted to decisions of the Chief Executive that have been confirmed or varied by a Benefits Review Committee. The grant of an emergency benefit to the appellant was not considered by the Chief Executive nor by the Benefits Review Committee. Although raised in submissions before it, the Authority made no findings on the availability of such a benefit. In those circumstances, I do not propose to consider s 61 any further.Appellant's submissions[16] The appellant's submissions comprised a closely typed 124 pages. They wereextremely discursive and unfocused. As explained by the appellant himself:[3] Because of the nature of this case the questions of law have been treated as a continuum rather than answered separately. In effect they have been broken into subsidiary points which have been addressed in what seemed a logical order.[4] Because I expected the submission to be referred to hither and thither at some point I have tried to make each section reasonably self- contained rather than making a myriad of cross-references, although that means there is repetition when reading it as a whole. I apologise profusely for its deficiencies, but this chronic ordeal has not been conducive to best practice. And I am only a lay person. I trust the Court will make allowances for that. And also for the fact, as the saying goes, that it smells of the lamp.[5] Although my circumstances in this case were created by the Ministry of Social Development, and that evil is what I am appealing against, what created the underlying reason for it was the Remuneration Authority (but not so as to make it a co-defendant). Therefore a Judge who knows or has known anyone on that Authority should not preside over this case, because there would be a personal conflict of interest.[6] Legislation significantly relied on, or referred to, in this submission includes: the Social Security Act 1964, the Interpretation Act 1999, the Evidence Act 2006, the New Zealand Bill of Rights Act 1990, the Imperial Laws Applications Act 1988, the Statues of Westminster; The First 1275, the Criminal and Civil Justice Statute 1351, the Criminal and Civil Justice Statute 1354, the Observance of Due Process of Law Statute 1368, the Petition of Rights Act 1627, the Bill of Rights Act 1688, the Minimum Wage Act 1983, the Employment Relations Act 2000, the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987,the Local Authorities (Members' Interests) Act 1968, the Crimes Act 1961,the Secret Commissions Act 1910, the Securities Act 1978, the Civil Defence Emergency Management Act 2002. International instruments relied on are the International Covenant on Civil and Political Rights (ICOCAPR is the most pronounceable abbreviation), the International Covenant on Economic Social and Cultural Rights, the Universal Declaration of Human Rights, the United Nations Charter.[17] As is foreshadowed in para [5] of his submissions, the appellant's underlying complaint, which he develops at great length in his submissions, is that the Remuneration Authority failed to set salaries for community board members at a sufficient level to adequately remunerate them for what should be a full-time commitment to the service of their community. That is not however something the Authority or this Court can review in the context of this appeal.[18] The appellant summarises what he says is the correct approach to assessing his eligibility for an unemployment benefit as follows:[385] Once the fundamental principle of the law has been recognised it must be recognised as the fundamental test for all decisions at law. For myWINZ case manager, the Ministry of Social Development's Benefits ReviewCommittee and the Social Security Appeal Authority to have arrived at the right decision in law they had to ask themselves a very simple question:"How can I best employ the Social Security Act 1964 to recognise fully the inherent dignity and worth of this man?" They failed to do that. If they had,the answer was obvious: make up as much as possible of the unlawful deficit caused by the malfeasance of the Remuneration Authority.[19] In essence, the appellant submits that he was eligible for an unemployment benefit because he was seeking full-time employment within his role as a Community Board member. He was always searching for ways in which he could beemployed in serving the best interests of his community to the best of his skill and judgement.[20] The appellant states:[104] It is impossible even to look seriously for a second full-time job if you already have full-time duties in the first one. Just looking for a full-time job is a full-time job, in which you would be working for yourself, not for your community. You cannot in logic and natural justice be compelled, under the threat of being punished with a financial penalty, to look for what you already have, or worse, if you found another full-time job, to double your load. No officer, no committee, no authority may expect the impossible, ask the impossible, compel the impossible. Again, that is cruel treatment, which breaches human rights enactments and of the promises and commands of the King.Question One: Was the Authority's interpretation of the criteria in s 89 of theSocial Security Act 1964 correct?[21] Section 89 and 90 set out the requirements for an unemployment benefit. They relevantly provide:89 Unemployment benefit: standard eligibility requirements(1) A person is entitled to an unemployment benefit if he or she satisfies the criteria in subsections (2), (3), and (4), and—(a) Is not in full-time employment, but—(i) Is seeking it; and(ii) Is available for it; and(iii) Is willing and able to undertake it; and(iv) Has taken reasonable steps to find it; or(b) Repealed.(c) Repealed.(2) An applicant for an unemployment benefit must be—(a) Aged 18 years or over; or(b) Aged 16 years or over, be married or in a civil union or in a de facto relationship, and have one or more dependent children.(3) An applicant for an unemployment benefit must meet the residential requirements in section 744A.(4) An applicant for an unemployment benefit must have—(a) No income; or(b) An income of less than the amount that would fully abate the benefit.(5) Nothing in subsection (4) affects the entitlement of a person to receive an unemployment benefit if, during a temporary period, the person has income sufficient to fully abate the benefit but the person otherwise fulfils the conditions of entitlement to the benefit.90 Unemployment benefit: grounds of hardship(1) The chief executive may grant an unemployment benefit under section 89 to a person who meets the criteria in section 89(1) and89(2) , but who does not meet the other criteria in that section, if—(a) The person is suffering hardship; and(b) The person is not qualified to receive any other benefit; and(c) The person is unable to earn sufficient income to support the person and his or her spouse or partner and any dependent children.[22] The Authority summarised the criteria which must be satisfied in order to be eligible for an unemployment benefit. The applicant must be:(a) Not in full-time employment;(b) Seeking full-time employment;(c) Available for full-time employment;(d) Willing and able to undertake full-time employment;(e) Taking reasonable steps to find it.[23] The Authority took the view from information received from the Remuneration Authority including its salary determination for Community Board members that the appellant's position as a Community Board member was a part- time position. It noted that at least two other members of the Waiheke CommunityBoard held full-time employment in addition to their Community Board duties. The other two members were apparently retired.[24] The Authority accepted that although the Community Board position was a part-time commitment and remunerated accordingly, the appellant committed himself to the position in such a way that it was full-time commitment for him.[25] In my view the Authority correctly stated the criteria in s 89(1)(a) of the Act that must be satisfied in order to be eligible for an unemployment benefit. The Authority concluded that the appellant did not satisfy three of these criteria as he:(a) Was not available for full-time employment;(b) Was not willing and able to undertake full-time employment or a second part-time job in addition to his work as a Community Board member; and(c) Had not been taking reasonable steps to find full-time employment.As a result it found he did not satisfy the criteria for receipt of the unemployment or unemployment hardship benefit.[26] I am of the opinion that the Authority's approach was entirely orthodox, consistent with s 89(1)(a) and the scheme of the Social Security Act. There is noobvious error of law. I accept the Crown's submissions that the criteria applied arereasonably open-ended concepts that are not prescriptively defined in the Act. This reflects the fact that the criteria are meant to be flexibly applied by the Chief Executive to a wide range of different facts and circumstances. However, this flexibility is not without limit. The focus of the Act is on self-sufficiency, in helping people return to work where appropriate and the underlying principle that "work inpaid employment offers the best opportunity for people to achieve social andeconomic wellbeing": s 1B(a).[27] The unemployment benefit must also be viewed in the context of NewZealand's broader social security regime. The Act contemplates that there aresituations where a person will be unable to work and provides benefits which apply in these cases. It also provides for monetary benefits that are not tied to job seeking activity to assist people of limited means meet various costs. I therefore agree with the Crown that it is wrong to read the unemployment benefit in isolation as being directed at correcting all hardship.[28] I reject the appellant's argument that seeking out additional work as amember of the Community Board should be regarded as satisfying the criteria as set out in s 89(1)(a). If the appellant's interpretation was correct, he would remain eligible to an unemployment benefit without any corresponding obligation to work towards self sufficiency through employment. This is entirely inconsistent with the objectives of the unemployment benefit and the principles which underpin it.Question Two: Was there any evidence on which the Authority could conclude that the appellant did not satisfy the criteria in s 89(1)(a) of the Act?[29] I am also of the view that there was sufficient evidence before the Authority for it to conclude that the appellant did not meet the eligibility criteria of s 89(1)(a). The Authority stated:[22] We are not satisfied that the appellant was available for full-time employment outside his Community Board role because he was fully occupied by his Community Board activities. Neither are we satisfied that he was willing and able to undertake full-time employment or a second part- time job in addition to his work on the Community Board. On this basis alone the appellant could not continue to receive the Unemployment Benefit.[30] In the course of his submissions, the appellant acknowledged that he was not available for full-time employment outside his Community Board role nor was he willing and able to undertake any employment in addition to his work on the Community Board.[31] This concession on the part of the appellant flowed naturally from theappellant's flawed interpretation of the job search criteria in s 89(1) of the Act.Question Three: Was the Authority's interpretation of s 90 of the SocialSecurity Act 1964 correct?[32] Section 90 enables the chief executive to grant an unemployment benefit to a person who meets the criteria in ss 89(1) and (2), but who does not meet the other criteria in that section if they are suffering hardship. The criteria in s 89(1) are those which are directly in issue in this case. According to s 89(1), the applicant must not be in full-time employment but must:(a) Be seeking it; and(b) Be available for it; and(c) Be willing and able to undertake it; and(d) Have taken reasonable steps to find it.[33] In the appellant's case, the Authority found he was not entitled to an ordinaryunemployment benefit because he did not satisfy the criteria in s 89(1). It follows that he was not entitled to a hardship unemployment benefit on the same basis.[34] The Authority's interpretation of s 90 was therefore correct. The criteria in s 89(1) needed to be satisfied before the appellant could be considered for a hardship unemployment benefit under s 90.Conclusion[35] I have not considered it necessary to respond in any detail to the voluminous submissions for the appellant which included references to Imperial legislation dating back to 1275, a wide range of New Zealand Statutes and a number of cases, the vast majority of which appear to me to be of no relevance to the determination of this appeal. As an example, the appellant cites a statute passed in 1297 in the reign of Edward 1 which provided (according to the appellant's submissions) as follows:29 imprisonment, etc contrary to law. Administration of justiceNO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawfuljudgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.[36] The appellant submits in relation to this provision:Disseise is defined by The Shorter Oxford English Dictionary as: "1 Law (now historical) put out of actual seisen or possession; dispossess (a person) of estates etc., usually wrongfully or by force; oust." Some modern"translations" of disseise replace it with "deprived of", but that misses its true meaning; it is too passive. For "seize" means "to grasp" (A Concise Etymological Dictionary of the English Language, published by Oxford), to take possession of. "Disseise" is an act of force, an assault, it means to be seized out of, to have seized from you, something you rightfully possess. Metaphorically speaking, rough hands were laid upon what I possessed by right of Royal Decree and it was stolen from me. Like the man in the Bible I fell among thieves, was stripped and robbed and left lying upon the King's Highway as if it were a meaningless tract of dirt.[350] I was disseised of my liberties and the free customs of this nation, as was my community. I was destroyed financially, and I was denied justiceand right, by officers of the King although I too was in the King's service. Iwas condemned to penury and beggary without lawful judgement, in defiance of lawful judgement, against the desire of freemen expressed in theKing's name in Clause 7 Schedule 7 of the Local Government Act 2002.[351] The King declared that no one may be punished unlawfully. I was punished for obedience to the King's law by being forced into beggary in hisservice by the unlawful actions of other servants. Their disobedience punished my obedience.[37] It is difficult to understand how the submission is of relevance to the three questions of law posed in the case date of appeal. In my view it is unnecessary to draw on Imperial legislation to give meaning to words used in s 89(1)(a).[38] In conclusion, the questions of law are answered as follows:(a) Was the Authority's interpretation of the criteria in s 89 of the Social Security Act 1964 correct? Yes.(b) Was there any evidence on which the Authority could conclude that the appellant did not satisfy the criteria in s 89(1)(a) of the Act? Yes.(c) Was the Authority's interpretation of s 90 of the Social Security Act 1964 correct? Yes.[39] The appellant states that he has put in excess of a man year of work into trying to obtain redress. That is unfortunate if that is indeed the case. I am certainly not in a position to do likewise in researching and delivering this judgment. Having put in excess of a man year of work into trying to obtain redress, the appellant seeks costs of $47,804, being the average annual gross earnings in New Zealand over the three year period between 2008 and 2010.[40] The appeal has been determined against the appellant and normally costs would follow the event. However, the Crown generously does not seek costs against the appellant. In those circumstances, costs are to lie where they fall.__________________________Woolford J