Easton v Attorney-General [2013] NZHC 2889 (31 October 2013)

Last Updated: 12 November 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-1840 [2013] NZHC 2889

UNDER the Judiciature Amendment Act 1972

BETWEEN BENJAMIN MORLAND EASTON Applicant

AND THE ATTORNEY-GENERAL AND MINISTRY OF SOCIAL DEVELOPMENT

First Respondents

AND WELLINGTON CITY COUNCIL Second Respondent (Struck out)

Hearing: 24 June 2013

Counsel B Easton appearing in person

D Harris and W Janse for the First Respondents

Judgment: 31 October 2013

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Easton has a long involvement in court proceedings and other activities motivated by his beliefs about certain social issues. The present matter concerns his application to review the decision to cancel his unemployment benefit.¹ That decision was made because the Ministry of Social Development determined that Mr Easton’s full-time engagement on these issues meant that he did not satisfy the

_{legislative eligibility requirements for that benefit.}

¹ The amended statement of claim contained three claims. One of those claims (concerning the introduction of the Care of Children Bill 2003) has already been determined in related proceedings and cannot be relitigated. Another of those claims (concerning Wellington City Council transport decisions) was struck out. Mr Easton’s position at the hearing was that these claims remained relevant as illustrations of the significance and the importance of the activities in which he has been engaged. They were considered by me on that basis.

EASTON v THE ATTORNEY-GENERAL AND MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC

2889 [31 October 2013]

Background

[2] At an earlier time Mr Easton lived with his wife and children and was employed as an early childhood educator. His marriage came to an end and Family Court proceedings followed. There began his involvement with the courts and other activities which has led to the position he is now in.

[3] As explained to me Mr Easton believes he is uniquely placed to bring to the court’s attention significant improprieties and corruption. Matters of concern to him have included the introduction of the Care of Children Bill, the rights of fathers, the definition of marriage, the rights of children of same sex couples, and the bus route through what was formerly Manners Mall. He has marched on hikoi, was a central figure in the Occupy Wellington demonstration and been involved in other protests about social issues. He has assisted people in need, studied Te Reo and presented a plan to the Ministry to tackle long-term unemployment. He has brought many

proceedings and sought to make submissions at Select Committee hearings.²

[4] Pursuit of these issues has no doubt come at a significant personal cost to Mr Easton. He has not been in paid employment for many years. He has eaten food out of rubbish bins. He has lived in his truck at times and in temporary shelters. He mentioned at the hearing that his son was 22 years that day, as an example as I understand it of how his life has changed and how long his pursuit of social issues has been.

[5] Mr Easton began receiving the unemployment benefit on 1 November 2006. It was cancelled on 25 February 2010. This came about as a result of newspaper articles in the Dominion Post about Mr Easton on 24 and 25 February 2010. The first article concerned Mr Easton’s appeal against the decision to allow buses through Manners Mall in Wellington. Under a photograph of Mr Easton was a description “Jobless by choice”. Mr Easton is quoted in the article as saying:

I live deliberately and directly on the unemployment benefit so I can bring

_{the people’s challenge to the courts and to the system.}

² Mr Easton referred to difficulties he has faced in doing so.

It is like a sacrifice, really. I am perfectly capable of earning. I could become a trained lawyer if necessary but I’m saying it is from the people’s perspective that this challenge [to the system] must be brought.

[6] The article was brought to the attention of Ms Bain. She has been employed by Work and Income (and its predecessors) for 36 years. In 2010 she was seconded to the position of Regional Director of Work and Income for the Wellington region. It was immediately apparent to Ms Bain that, if Mr Easton was receiving the unemployment benefit, there could be an issue as to whether Mr Easton was meeting the criteria for that benefit based on his statements to the press as reported in the 24

February 2010 article.

[7] Ms Bain says that she was careful to take legal advice regarding Mr Easton’s situation because it was already in the public domain and it was important that she dealt with the situation correctly. Ms Bain asked her Service Centre Manager, Ms Coffin, to look into whether Mr Easton was a Work and Income Client. Ms Bain cannot recall whether Ms Coffin informed her that Mr Easton was a client, but believes that she must have done so. Ms Coffin rang Mr Easton and a meeting was arranged for the following morning.

[8] Even though a meeting had been arranged for the following morning, Ms Bain called Mr Easton in the afternoon of 24 February 2010 to see if she could arrange an earlier meeting time. She did this because she recalls feeling the need to deal with the matter promptly “as a matter of public sector integrity and our responsibility for the use of public money”. She says that it was “not acceptable that someone was claiming to be getting the dole simply to push their own political causes”. Mr Easton declined Ms Bain’s proposal that they meet that afternoon. She recalls, however, that Mr Easton spoke at length to her about his political and philosophical issues.

[9] On the following day (25 February 2010) a further article appeared in the

Dominion Post regarding Mr Easton. The article said:

An unemployed Wellington man who boasted he was living on the dole to run court crusades on social issues has been told to report for an immediate work test.

[10] The article reports the Social Development Minister as being “appalled” by Mr Easton’s comments. It also reports that Mr Easton was not worried about the potential threat to his benefit. He is reported as saying:

I’ll take to them the information of what it is I’ve presented to court relative to the issues I’ve raised, and if anyone’s gainfully employed, it’s me. I’m working hard. The amount of hours I’ve put into these proceedings in the public interest is extraordinary.

[11] Ms Bain recalls that Mr Easton was also interviewed on Newstalk ZB. The content of that interview is not before me. When Mr Easton arrived for his meeting at Work and Income on the morning of 25 February 2010 he was also accompanied by a Dominion Post reporter, although the reporter did not enter the centre.

[12] Ms Bain interviewed Mr Easton and Ms Coffin sat in on the interview. Ms Bain says that she did not have an “agenda” going into the meeting. The meeting lasted about an hour and a half. According to Ms Bain, Mr Easton spent some time talking about his activism. Ms Bain says she asked him questions about his job seeking, what jobs he had applied for, whether he had been offered work and the type of work he was interest in. At the end Ms Bain says she advised Mr Easton that a decision on his ongoing entitlement would be made within 48 hours.

[13] Mr Easton, however, says he understood that there would be at least a week before a decision was made because Ms Bain needed time to work through the information he presented at the meeting. He recalls the meeting as amicable and left feeling confident that she would act on what they discussed. He says that Ms Bain also asked him if he wanted his glasses fixed and he declined the offer.

[14] It was apparent to Ms Bain that what Mr Easton had been saying in the media was accurate from his answers to her questions. Following the interview, Ms Bain again sought legal advice. She was satisfied that the four critical eligibility criteria were not met. Ms Bain then met with her boss, Mr Scott, who was Regional Commissioner. Ms Bain discussed Mr Easton’s situation and recommended that Mr Easton’s benefit be cancelled immediately. She recalls thinking that ideally Mr Easton would be given time to adjust before his benefit was cut but that legally there was no grace period. Ms Bain recalls that Mr Scott endorsed her decision that Mr

Easton’s benefit be cancelled immediately.³ Ms Bain also briefed another manager, and the National Commissioner of the decision which had been reached.

[15] Ms Bain telephoned Mr Easton to let him know his benefit was cancelled. Ms Bain says that Mr Easton was accepting of the decision but asked her to “hold off for a couple of weeks”. Ms Bain explained that they could not do that and explained his review rights.

[16] Ms Bain also posted and emailed him a letter that day setting out the reasons for the decision that had been made. The letter:

(a) noted that Mr Easton had indicated that he was “fully engaged (7 days a week) on social issues and legal battles such as the Manners Mall bus route, gender discrimination against men and Radio New Zealand”;

(b) set out the specific definition of “full-time employment” and the

eligibility criteria for the unemployment benefit in the legislation;

(c) advised that they were not satisfied that Mr Easton was seeking full- time employment, nor that he was available for employment, nor that Mr Easton had shown he was willing and able to undertake employment and nor that he was taking reasonable steps to find employment;

(d) advised that Mr Easton might wish to test his eligibility for Temporary

Additional Support, enclosed an application form for that purpose, and encouraged Mr Easton to contact the Ministry if he was in hardship;

³ Ms Bain’s memorandum records that the Regional Commissioner made the decision to cancel the benefit. In her affidavit she says that this is incorrect as it was she who made the decision and the Regional Commissioner endorsed that decision. Mr Easton does not accept that this is a truthful statement of the position. It is not necessary to resolve this but I do note that on the material before me I could not make any finding that Ms Bain provided anything but truthful evidence in her affidavit.

(e) advised Mr Easton of his review right and that if his circumstances changed and he believed that he met the criteria for the unemployment benefit he was to contact the Ministry.

[17] Mr Easton replied to Ms Bain’s letter by email on 25 February. He said he would not be requiring any further assistance after the final payment and that he would move out of his Council flat and back onto the street after his final unemployment benefit payment. He said:

While I comprehend the Ministry does not consider the extensive work I am doing as employment, or that of seeking employment it should be publicly noted that the cases I am presenting are all built in a direct challenge on (and only on) serious societal injustices. Of the many cases I process the Manners Mall matter has the clearest evidence to disclose why the challenge should and I believe will, in the end, be successful. I look forward [to] a variation agreed on the proposal or otherwise its Court ordered quash. I have no intention of allowing the removal of the unemployment benefit to set me back from any of my many challenges against open injustice and am simply more resolved to prove the outright merit of my acivity (sic).

The legislation

[18] Payment of the unemployment benefit is governed by the Social Security Act

1964. The purposes of that Act include providing financial and other support as appropriate to help people to support themselves when not in paid employment and to help people to find paid employment.⁴ The receipt of benefits is subject o eligibility requirements. The chief executive may review any benefit at any time in order to ascertain whether the person remains entitled to receive the benefit and, if appropriate, terminate the benefit.⁵

[19] At the relevant time s 89 of the Act set out the standard eligibility requirements for the employment benefit.⁶ For present purposes the relevant part of those requirements were:

89 Unemployment Benefit: standard eligibility requirements

_{(1) A person is entitled to an unemployment benefit if he or she ... –}

⁴ _{Social Security Act 1964, s 1A.}

⁵ _{Section 81.}

6. The eligibility requirements are now set out in s 88B of the Act but for present purposes there are no material differences.

(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;}

...

[20] “Employment” is defined in s 3 as “paid employment”. “Full-time

employment” is defined as:

(a) Employment under a contract of service or apprenticeship which requires the person to work, whether on time or piece rates, no less than an average of 30 hours each week; or

(b) Self-employment of the person in any business, profession, trade, manufacture, or undertaking carried on for pecuniary profit for no less than an average of 30 hours each week; or

(c) Employment of the person for any number of hours which is regarded as full-time employment for the purposes of any award, agreement, or contract relating to that employment.

My assessment

[21] Mr Easton contends that he has always worked. He considers that the evidence shows that he has worked very hard for the community. The difficulty for him, however, is the definitions of “full-time employment” and “employment”. Employment means “paid” employment. Therefore “full-time employment” in turn means “paid” full-time employment. Therefore to meet the eligibility criteria Mr Easton must be seeking paid full-time employment, be available for paid full-time employment, be willing and able to undertake paid full-time employment and to have taken reasonable steps to find paid full-time employment.

[22] This means that voluntary activities undertaken for the benefit of the community do not qualify as full-time employment for the purposes of the eligibility criteria.⁷ As counsel for the Ministry submits it is not in doubt that Mr Easton has

_{been passionate and committed to issues that are dear to him and which he regards as}

⁷ A similar view was reached in Ceramalus v The Chief Executive of the Ministry of Social

Development [2012] NZHC 587.

important to others. But the legislation does not provide an unemployment benefit for people who are engaged in these activities. That is so no matter how sincere and committed a person is to the causes they pursue and how diligently and relentlessly that person pursues them. The pursuit of these activities is a choice that Mr Easton has made. He is entitled to make that choice, but in so doing he does not meet the eligibility criteria.

[23] Mr Easton says that in undertaking these activities he has gained many skills. That may be so. If the Ministry were satisfied of that, potentially it might be relevant to whether Mr Easton was seeking full-time employment in that acquired vocational skills may assist in obtaining full-time employment. However, even if the Ministry were to be satisfied of that, it was clear on the information before the Ministry that as at 25 February 2010 Mr Easton was not willing and able to undertake full-time employment. He was intent on pursuing his causes as his response to the decision confirmed (refer [17] above).

[24] In these circumstances the Ministry’s decision to cancel Mr Easton’s unemployment benefit on 25 February 2010 was lawful. As the Ministry made clear, if Mr Easton’s circumstances change he may become eligible for the unemployment benefit. He may also be entitled to other assistance.

Result

[25] The application for review is dismissed.

Mallon J