Crequer v Chief Executive of Ministry of Social Development

• Jurisdiction: New Zealand
• Judge: Gendall J
• Judgment Date: 09 July 2015
• Neutral Citation: [2015] NZHC 1602
• Date: 09 July 2015
• Court: High Court
• Docket Number: CIV-2015-485-000156

[2015] NZHC 1602

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV-2015-485-000156

In the Matter of An appeal by way of case stated from the determination of the Social Security Appeal Authority at Wellington

Under Section 12Q Social Security Act 1964

Between

David Owen Crequer

Appellant

and

The Chief Executive of the Ministry of Social Development

Respondent

JUDGMENT OF Gendall J

What this judgment is about

A case is stated

1 On 20 May 2014, the Social Security Appeal Authority (SSAA) released its decision relating to Mr David Crequer's dispute concerning the commencement date of his benefit entitlement, and the decision to give him a Domestic Purposes Benefit rather than a Sickness Benefit. 1 Both appeals were dismissed. Following the release of the decision, on 24 February 2015 the SSAA stated a case to this Court, seeking resolution of the following two questions of law: 2

• (a) Did the Authority err in finding that it was open to the Chief Executive to grant the appellant Domestic Purposes Benefit rather than Sickness Benefit?

• (b) Did the Authority err in law in its interpretation or application of s 80BA of the Social Security Act 1964 in finding that the correct commencement date of the appellant's Domestic Purposes Benefit was 3 June 2013?

Mr Crequer objects to the case as it is stated

2 Before consideration of these legal issues could get underway, Mr Crequer filed a memorandum objecting to the contents of the case stated. In his objection, Mr Crequer states:

The case stated that the Authority has purported to file bears no relation to the case stated submitted to the Authority by the appellant, which the Authority has seen fit to change in all material respects. I contend that even if it were a draft case stated it is/was not open to the Authority to make changes except for errors of fact.

3 It therefore seems that Mr Crequer's position is that the case stated which he drafted should be submitted to this Court for determination, subject only to correction of errors of fact. The respondent objects to this course. Its position is that the act of stating a case is an act of the SSAA, not the appellant, and that the case, as stated, should stand.

4 I attach as Annexure A the five questions of law (and multiple sub-questions) Mr Crequer submitted to the SSAA as purported questions of law for resolution.

Further background

5 Mr Crequer was made redundant. His final day of employment was 28 March 2013. On 2 April, he contacted the Ministry of Social Development (the Ministry), and subsequently attended an appointment at which he discussed the Domestic Purposes Benefit. Two days later, Mr Crequer had an operation for a hernia. On 10 April, Mr Crequer applied for the Domestic Purposes Benefit. On 12 April, Mr Crequer contacted the Ministry, stating that he would prefer to be granted a Sickness Benefit. In support of this, he supplied a medical certificate which indicated he would be unable to work for two weeks, and only able to work on light duties for a further six weeks. The preference for the Sickness Benefit seemed to be predicated on his belief that the two benefits had differing commencement dates.

6 The Ministry then proceeded to assess the commencement date of Mr Crequer's Domestic Purposes Benefit in accordance with the provisions of the Social Security Act. A formal application for the sickness benefit was not received until 18 April. That request was declined. On the same day, the assessment of Mr Crequer's Domestic Purposes Benefit was completed. The assessment indicated that the commencement date of the benefit would be 9 May 2013.

7 Mr Crequer sought reviews of the decisions. From this, I take it to mean that the review related to (a) the declination of the application for the Sickness Benefit; and (b) the assessment of the commencement date of the Domestic Purposes Benefit. An internal review revealed that the correct commencement date should have in fact been 17 June 2013. The matter was referred to the Benefits Review Committee, which concluded that, due to Mr Crequer's average weekly wage, the correct commencement date was 11 June 2013. Subsequent to this, the Chief Executive of the Ministry advised that the date had once again been revised to 4 June 2013.

8 The matter was then appealed to the SSAA, which was heard on 11 April 2014. A decision was released on 20 May 2014. The commencement date issue required the SSAA to interpret and apply ss 80 and 80BA of the Social Security Act. It essentially concluded that Mr Crequer's stand down period ended on 3 June 2013, with the effect that the correct commencement date was 4 June 2013. As to the Domestic Purposes Benefit vs the Sickness benefit debate, the SSAA concluded that the Sickness Benefit would provide Mr Crequer with no advantage. The appeal was dismissed in both respects.

9 On 24 February 2015, the SSAA stated a case to this Court. I have set out above at [1] the two questions of law requiring resolution. Those questions were formulated by the SSAA following input from the parties. Mr Crequer objects to the current formulation on the basis that his original questions, which he devised, should be put before this Court. He therefore requests that the case be referred back to the SSAA for reformulation, presumably in line with how he originally drafted the case he considered should be referred to this Court.

What I am required to resolve in this judgment

10 In essence, this judgment is concerned with one legal point, and one factual point. The first is whether Mr Crequer has any basis for challenging the contents of the case stated by the SSAA. If that question is answered in the affirmative, I am then required to consider whether, on the facts of this case, Mr Crequer's drafted case stated objections are made out. Naturally, the substantive questions for determination are not traversed in this judgment.

The statutory and regulatory architecture

11 This application essentially invokes s 12Q of the Social Security Act 1964 and Part 21 of the High Court Rules. 3 The relevant section from the Social Security Act provides:

12Q Appeals to High Court on questions of law only

• (1) Where any party to any proceedings before the Authority is dissatisfied with any determination of the Authority as being erroneous in point of law, he may appeal to the High Court by way of case stated for the opinion of the Court on a question of law only.

• (2) Repealed.

• (3) Within 14 days after the date of the determination the appellant shall lodge a notice of appeal with the Secretary of the Authority. The appellant shall forthwith deliver or post a copy of the notice to every other party to the proceedings.

• (4) Within 14 days after the lodging of the notice of appeal, or within such further time as the Chairman of the Authority may in his discretion allow, the appellant shall state in writing and lodge with the Secretary of the Authority a case setting out the facts and the grounds of the determination and specifying the question of law on which the appeal is made. The appellant shall forthwith deliver or post a copy of the case to every other party to the proceedings.

• (5) As soon as practicable after the lodging of the case, the Secretary of the Authority shall submit it to the Chairman of the Authority.

• (6) The Chairman shall, as soon as practicable, and after hearing the parties if he considers it necessary to do so, settle the case, sign it, send it to the Registrar of the High Court at Wellington, and make a copy available to each party.

• (7) The settling and signing of the case by the Chairman shall be deemed to be the statement of the case by the Authority.

• (8) If within 14 days after the lodging of the notice of appeal, or within such time as may be allowed, the appellant does not lodge a case pursuant to subsection (4) of this section, the Chairman of the Authority may certify that the appeal has not been prosecuted.

• (9) The Court or a Judge thereof may in its or his discretion, on the application of the appellant or intending appellant, extend any time prescribed or allowed under this section for the lodging of a notice of appeal or the stating of any case.

• (10) Subject to the provisions of this section, the case shall be dealt with in accordance with rules of Court.

12 The general effect of the section can be summarised. Any party to a proceeding before the SSAA may appeal to the High Court, on questions of law alone, by way of case stated. Within 14 days of the release of the SSAA's decision, a notice of appeal must be lodged with the secretary of the SSAA. Within 14 days thereafter, or within such further period of time as the chairman of the SSAA may permit, the appealing party must lodge with the secretary a draft appeal with the secretary. That appeal must set out the facts and grounds of the determination of the SSAA, and the questions of law for resolution. Once this is done, the secretary must submit the case to the chairman.

13 Upon receiving the case, the chairman must as soon as practicable, “settle the case, sign it, send it to the Registrar of the High Court at Wellington, and make a copy available to each party”. In doing so, the chairman may hear from the parties. This act of settling and signing is deemed, by s 12Q(7), to be the stating of the case by the SSAA. Subject to s 12Q, the case stated may be dealt with in accordance with the rules of Court. 4 This summary is effectively a replication of the short entry about the SSAA in the work, Appeals and Appellate Courts in Australia and New Zealand, where the authors comment: 5

The Social Security Appeal Authority was established by s 12A of the Social Security Act 1964. The functions of the Appeal Authority are to sit as a judicial authority for the determination of appeals in accordance with s 12J of the Social Security Act 1964 and s 16A of the...