THOMPSON V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC TAU CIV-2012-485-001531

THOMPSON V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC TAU CIV- 2012-485-001531 [22 February 2013]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV-2012-485-001531[2013] NZHC 296IN THE MATTER OF an appeal by way of case stated from thedetermination of the Social Security AppealAuthority at Wellington under s 12Q of theSocial Security Act 1964BETWEEN TREACY THOMPSONAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 22 February 2013Appearances: Appellant in PersonS McKechnie for RespondentJudgment: 22 February 2013JUDGMENT OF VENNING JThis judgment was delivered by me on 22 February 2013 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Crown Law, WellingtonCopy to: AppellantIntroduction[1] This is an appeal by way of case stated on the following questions of law:1(a) Did the Social Security Appeal Authority (the Authority) err in law in determining that the Chief Executive had no discretion to pay a rate of disability allowance higher than that specified in Schedule 19 of the Society Security Act 1964 (the Act)?(b) Did the Authority err in law when it found that the Chief Executive was correct in assessing that the appellant was not entitled to temporary additional support as at 18 July 2011?Background[2] On 14 July 2011 the appellant applied for a disability allowance. She sought the allowance to enable her to have private physiotherapy after a shoulder operation. The cost of the physiotherapy was to be an initial $65.00 with successive treatments costing $50.00. The appellant wished to attend physiotherapy twice a week for the first three weeks with the attendance dropping to once a week after that.[3] The application was successful. The appellant was granted a disability allowance at the maximum rate permitted under the Act, which at the time was $59.12 per week, from 13 July 2011.[4] On 25 July 2011 the appellant applied for temporary additional support in order to meet the residual cost of her physiotherapy, which was not covered by the disability allowance. The staff at Work and Income ran a number of assessment scenarios through the system. In the initial one they included the sum of $50.00 per week for the physiotherapy as an allowable cost. Despite that, the appellant was not assessed as having a deficit in income. Further assessments were carried out in light of the appellant's advice that she required two physiotherapy sessions a week (for three weeks). Those assessments suggested she was eligible to receive $22.12 in the1 Social Security Act 1964, s 12Q(1).first week and $7.12 for the next three weeks. On the final assessment the appellant was assessed as being entitled to a one-off payment of temporary additional support of $57.12 but not to be eligible for ongoing temporary additional support.[5] The appellant sought a review of the decisions to grant the disability allowance but limited to $59.12 a week and not to pay her temporary additional support on an ongoing basis.[6] An internal review of the decisions was completed. The original decisions were confirmed. The appellant was advised of this on 1 September 2011. The Ministry sent a report to the Benefits Review Committee. The Benefits Review Committee held a meeting on 16 September 2011 at Tauranga. The appellant attended. The Benefits Review Committee upheld the original decisions. The appellant was advised of the decision on 27 September 2011. In a further assessment conducted in February 2012 the appellant was assessed as having a surplus and confirmed as not eligible for temporary additional support. The appellant then appealed to the Social Security Appeal Authority.The Authority's decision[7] The Authority concluded the appellant should not have received any assistance for physiotherapy costs by way of the disability allowance. The Authority considered that, as the appellant's doctor expected the disability to be for less thansix months, the appellant was not eligible for a disability allowance: s 69C(2)(a). Further, the Authority determined that the physiotherapy the appellant required after the operation could have been funded under the New Zealand Public Health and Disability Act 2000. The appellant could have received treatment at the hospital where her operation had been carried out at no cost to herself: s 69C(2A)(b).[8] In any event, even if the appellant qualified for the disability allowance the Authority determined that the Chief Executive had no discretion to pay the appellant more than $59.12 per week as that was the sum prescribed in Schedule 19 to the Act.[9] The Authority upheld the Chief Executive's decision that the appellant was not entitled to temporary additional support as at 18 July 2011. The Authority first confirmed that the Chief Executive was required to deduct $23.34 from theappellant's accommodation costs. It next determined that the costs of the physiotherapy treatment were not an expense for which the disability allowance under s 69C was payable so that it could not be included as an allowable cost. Finally, the Authority also concluded the appellant's regular Sky television subscription for the purposes of using a Sky dish to access her television was not an essential expense and thus not an allowable cost which could be taken into account in the assessment of the temporary additional support. The Authority concluded that, as at 18 July 2011, the only allowable costs which could be included for the purposes of assessment of the appellant's temporary additional support were her rent (less the$23.34 prescribed) and her vehicle repayment costs of $25 per week.The appellant's case[10] As noted this is an appeal by way of case stated on a question of law. Unfortunately the appellant has failed to appreciate that. In both her written and oral submissions she went into considerable detail in relation to her dealings with Work and Income Services. She also seeks to challenge some of the factual conclusions of the Authority.[11] I accept the respondent's submission that the factual matters raised by the appellant are not relevant to the determination of the questions of law posed for this Court. The matters of fact the appellant refers to fall well short of establishing anysuggestion of a factual error that could be regarded as a mistake of law. As theSupreme Court confirmed in Bryson v Three Foot Six Ltd2 where the case is anappeal limited to questions of law, the Court should not lightly be persuaded tointerfere with factual findings. The hurdle is a very high one.2 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [27].DecisionThe rate of the disability allowance[12] The first question can be answered shortly. Assuming for present purposes (contrary to the finding of the Authority) that the appellant was entitled to a disability allowance, the allowance was payable pursuant to s 69C(1). That subsection provides the Chief Executive may, at his or her discretion, "grant adisability allowance at a rate not exceeding the amount specified in Schedule 19 tothis Act ...".[13] The rate specified in Schedule 19 at the time was:2. Maximum rate of disability allowance under section 69C(1) [$59.12] a week.[14] The discretion residing in the Chief Executive under s 69C(1) relates to whether a disability allowance should be paid, and, if so, at what rate up to a maximum of $59.12 a week it should be paid. The wording of the legislation and the intent behind it is clear. The prescribed rate is the maximum that can be paid.[15] I note the appellant referred to reg 11 of the Social Security (Temporary Additional Support) Regulations 2005 (the Regulations). Regulation 11 provides for a disability exception amount to be taken into account in assessing a person'seligibility for temporary additional support (if certain conditions are met). However, it can have no effect on the quantum of the disability allowance paid under s 69C(1) which is itself prescribed by legislation.The Temporary Additional Support issue[16] Temporary additional support is provided for by s 61G of the Act. It is apparent from s 61G(1) that the assistance is to be regarded as "a last resort" toalleviate the financial hardship faced by an applicant. The focus is on the applicant's "essential costs", which cannot be met from "chargeable income and other resources". Essential costs are defined in s 61G(7) as "the sum of a person's allowable costs and standard costs".[17] Allowable costs are provided for in Schedule 2 to the Regulations. Standard costs are provided for in Schedule 3 of the Regulations. In the present case they are 70 per cent of the benefit received by the appellant. To be eligible for temporary additional support an applicant's chargeable income must be less than their essential costs and they must also meet other criteria.[18] It is first necessary to calculate the disposable income, which is the amount by which the chargeable income exceeds allowable costs, before deducting standard costs to arrive at the deficiency or surplus. The calculation carried out for the appellant as at February 2012 was:ASSESSMENT DETAILSChargeable incomeBenefit/Pension $201.40Disability Allowance $59.12Total weekly chargeable income $260.52Allowable costsRent – HNZ $50.00Less deduction $23.34Disability Allowance Costs $62.50Vehicle repayment $25.00Total weekly allowable costs $114.16Deficiency/SurplusDisposable income $146.36Less Standard costs $140.98Surplus $-5.38Upper limit $60.42Disability exception amount $0.00[19] The appellant considers that the problem lies partly in the computer program used by Work and Income. She set out in her written submissions what she considers to be the appropriate calculation for her position as follows:Chargeable incomeBenefit/Pension $201.40Disability Allowance $59.12Total weekly chargeable income $260.52Allowable costsRent HNZ $50.00Less deduction ($23.34) ($23.34)Disability Allowance Costs $118.40Vehicle Repayment $25.00Total weekly allowable costs $170.06 $193.40Deficiency/SurplusDisposable income $90.46 $67.12Less Standard costs $140.98Deficiency $50.52 $73.86Upper limit $60.42Disability exception amount $0.0[20] The result obviously changes depending on the inputs. The issue is what inputs are prescribed and allowed by the Regulations. The appellant's first challengeis to the deduction of $23.34 from her accommodation costs. That deduction, however, is prescribed by regulation. Schedule 2 to the Regulations, cl 3(a) provides that the allowable costs for accommodation are, for present purposes, the amount payable by the appellant for rent less $23.34. Again, there is no discretion in relation to the deduction of that sum of $23.34. It is not a question of the appellant paying that sum, as she suggested, it is a nominal deduction from her housing costs which Parliament has prescribed is to be deducted for the purposes of assessing whether she is eligible for temporary additional support. The Regulation is clear.[21] The next issue is the amount the appellant seeks to claim of $118.40 for disability allowance costs. Disability costs are provided for in cl 3(e) of Schedule 2 as an allowable essential expense. They are defined in the Regulation as meaning:disability-related expenses, being expenses of a kind for which a disability allowance under section 69C of the Act would be payable; ...[22] The Authority determined that the costs of the physiotherapy claimed by the appellant were not an expense for which the disability allowance under s 69C of the Act would be payable. It came to that conclusion for two reasons. First, a disability allowance under s 69C is not payable unless the Chief Executive is satisfied that the disability is likely to continue for not less than six months: 69C(2)(a). The disability certificate completed by the doctor at the hospital confirmed the disability was expected to last less than six months. Further, the letter from the physiotherapist tosupport the appellant's claim suggests the treatment would be completed within nine to 10 weeks.[23] The Chief Executive's decision that he was not satisfied the disability waslikely to continue for not less than six months was clearly open to him as was theAuthority's interpretation and application of s 69C(2)(a).[24] The appellant referred to s 69C(7) and submitted she was still suffering from the disability. However, that does not assist her for two reasons. First, she would not otherwise have been entitled to receive a disability allowance because of s 69C(2A) and second, the relevant consideration under s 69C(2A)(a) is the additional expense arising from the disability. There is no additional expense because the appellant has ceased her physiotherapy treatment.[25] The Authority also relied on s 69C(2A)(b) on the basis that the physiotherapy for which the expenses were claimed could have been available to her under the New Zealand Public Health and Disability Act 2000 at a hospital. Section 69C(2A)(b) applies.[26] The appellant says that she had been trespassed from the hospital but in her written submissions said that she wished to have physiotherapy privately. The appellant could have had her physiotherapy treatment at a hospital.[27] For all the above reasons the appellant did not meet the criteria under s 69C for payment of a disability allowance. There was no basis for her to claim a disability allowance as an essential expense for the purposes of the temporary additional support.[28] The final issue is whether the ongoing regular payments for her Sky subscription was an essential expense and thus an allowable cost in terms of Schedule 2 and a deduction should be made for that. Clause 2 provides for essential expenses specified in cl 3 as allowable costs. Clause 3 provides for weekly payments for a television set up to a maximum of $21.51. However, cl 3(b) provides such payments are to be:agreed period payments (as defined in clause 6), ... and made in connection with the acquisition of any of the items in column 1 ..."Agreed period payments" are defined as:payments, during the agreed period, under a consumer credit contract or other arrangement that—...(c) was entered into to acquire the item or to repay debt incurred in acquiring the item; ...The item in issue is a television set. The regular payments made to Sky were not made to acquire a television set. They were to acquire the services of the Sky television subscription and thus a Sky dish for television reception. The Sky subscription was properly disallowed. It does not come within the definition of an essential expense.Result[29] The questions of law posed for this Court are answered:(a) No.(b) No.[30] There is no jurisdiction to consider the other issues raised by the appellant.Costs[31] Costs are reserved. If the respondent seeks costs he is to file and serve a memorandum within seven days. The appellant is to file and serve any reply within seven days. I will then fix costs on the basis of the memoranda (if necessary).__________________________ Venning J