MCCARTNEY v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 423

MCCARTNEY v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 423 [14 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-485-000538[2017] NZHC 423IN THE MATTER OF an appeal by way of case stated from thedetermination of the Social SecurityAppeal Authority at Wellington unders 12Q of the Social Security Act 1964BETWEEN SHAUN MCCARTNEYAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 9 March 2017Appearances: Appellant in personL M Jackson for RespondentJudgment: 14 March 2017JUDGMENT OF GILBERT JThis judgment is delivered by me on 14 March 2017 at 2 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors: Crown Law, WellingtonAnd to: The AppellantIntroduction[1] This appeal, by way of case stated, arises out of Mr McCartney's contentionthat the sickness benefit paid to him from 8 December 2009 should be backdated to 7 April 2009. This turns on whether his delay in applying for a benefit was caused by some erroneous action or inaction on the part of the Ministry of Social Development.[2] Mr McCartney was dismissed from his employment on 7 April 2009. Because he was dismissed for misconduct, he was not entitled to a benefit for a period of 13 weeks.1 Although the Chief Executive of the Ministry of Social Development has a discretion not to apply this stand-down period, payment of a benefit cannot commence until an application is made or the applicant becomes entitled to receive the benefit, whichever is later.2 According to his doctor, Mr McCartney would have been eligible for a sickness benefit from 7 April 2009 because he was not in a fit state to work. His doctor urged him to apply for a sickness benefit but Mr McCartney did not do so until December 2009 and benefit payments did not commence until 8 December 2009.[3] Mr McCartney's request that the Ministry backdate his payments was declined.On 29 November 2011, Mr McCartney applied to the Benefits Review Committeefor a review of the Ministry's decision. This application was dismissed on 25 September 2012.[4] Mr McCartney appealed to the Social Security Appeal Authority. On 8 April 2013, the Authority issued a decision adjourning the appeal and directing that the matter be referred to the Chief Executive to consider whether the discretion provided for in s 80AA of the Act should be exercised.3 This section enables backdated payments to be made with the consent of the Minister. However, the Minister can only give consent in the case of a particular applicant if satisfied that one of the preconditions in s 80AA(2)(a) is met, namely, that the applicant:1 Social Security Act 1964, s 60H(4).2 Social Security Act 1964, ss 60H(6) and 80(1).3 Re McCartney [2013] NZSSAA 30.(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.[5] It took nearly two years, until 26 February 2015, for the Ministry to report back to the Authority that the Chief Executive was satisfied that there was no erroneous action or inaction on the part of the Ministry and accordingly there was no discretion to backdate the benefit.[6] The Authority reconvened the hearing of the appeal on 12 May 2015 and issued a written decision on 28 May 2015 finding that there was no basis for a sickness benefit or unemployment benefit to be backdated.4 The Authority summarised the reasons for its decision as follows:[10] There appear to have been three primary reasons why the appellant did not apply for Sickness or any other benefit before December 2009. The first reason is that he was in a very distressed and depressed frame of mind. The second is that throughout this period the appellant was convinced that he would get his job back when a claim against his employer went through theEmployment Tribunal. The third reason is that the appellant's partner wasworking and was able to pay the basic household expenses. There was therefore perhaps less pressure on the appellant to seek support from theMinistry. In our view, the appellant's failure to apply for a benefit was forthese three reasons and not as a result of any failure on the part of the Ministry.[7] Mr McCartney appeals against this decision. The appeal is by way of case stated and is limited to questions of law only.5 The questions of law are as follows:(a) Was the appellant prejudiced by the delay of the Chief Executive in considering his application pursuant to the provisions of s 80AA of the Social Security Act 1964?(b) If the answer to question (1) is yes, did the Authority err in law in failing to take the alleged prejudice into account in concluding that4 Re McCartney [2015] NZSSAA 37.5 Social Security Act 1964, s 12Q.there was no basis on which a backdated Sickness Benefit could be paid to the appellant in respect of the relevant period?Question 1 – was the appellant prejudiced by the delay?[8] The relevant delay was on the part of the Ministry and involved the period from 8 April 2013 until 26 February 2015.[9] Ms Jackson responsibly referred to the Court of Appeal's decision inIdea Services Ltd v Clark in which the Court held that excessive delay between a hearing and a decision could give rise to a question of law, namely, whether in all of the circumstances it should be presumed that the decision-maker was no longer able to do justice between the parties.6 The Court adopted the test applied by the Privy Council in Cobham v Frett:7 a fair case must be shown for believing that the judgment contains errorsthat are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.[10] While delay in decision-making can give rise to an appealable error, Mr McCartney confirmed at the hearing in this Court that he has not suffered anyprejudice as a result of the Ministry's inordinately long delay in providing itsconfirmation that neither of the preconditions for the exercise of ministerial discretion under s 80AA was satisfied. Mr McCartney acknowledged that he would be no better off today if he had received confirmation earlier that there was no basisto backdate his benefit and agrees that the answer to question 1 must be "no".[11] This was an appropriate concession. The Authority independently found as afact that Mr McCartney's failure to apply for a benefit prior to December 2009 was explained by the three reasons summarised in [10] of its decision, quoted above, and not as a result of any error or inaction on the part of the Ministry. In these circumstances, the Chief Executive was not entitled to backdate the benefit and theAuthority's decision declining the appeal was inevitable.6 Idea Services Ltd v Clark [2014] NZCA 97, (2014) 11 NZELR 619.7 Cobham v Frett [2001] 1 WLR 1775 (PC) at 1783-1784.Question 2 – if the appellant was prejudiced, did the Authority err in law by failing to take this into account?[12] This question does not apply because the answer to question 1 is "no".Result[13] The answer to question 1 is "no".[14] The answer to question 2 is "not applicable".[15] The appeal is dismissed.[16] There is no issue as to costs._____________________M A Gilbert J