Greenfield v Chief Executive of the Ministry of Social Development [2013] NZHC 3157 (29 November 2013)

Last Updated: 16 December 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-002305 [2013] NZHC 3157

UNDER the Social Security Act 1964

IN THE MATTER of an appeal by way of case stated from a determination of the Social Security Appeal Authority under s 12Q of the Social Security Act 1964

BETWEEN DAWN LORRAINE GREENFIELD Appellant

AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing: 22 November 2013

Counsel: P D McKenzie QC and A J McGurk for Appellant

M J Andrews and N E Gray for Respondent

Judgment: 29 November 2013

_{JUDGMENT OF COLLINS J}

Introduction

[1] The Social Security Appeal Authority (the Authority) has posed three questions for me to consider. Those questions are set out in paragraph [9] of this judgment.

[2] The questions arise in the context of the Chief Executive of the Ministry of Social Development (the Ministry) deciding Mrs Greenfield was not eligible for New Zealand superannuation on the basis she was not ordinarily resident in

_{New Zealand on the date she applied as she was living and practising as a missionary}

GREENFIELD v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3157 [29 November 2013]

overseas. The Ministry’s decision was upheld by the Benefits Review Committee

and the Authority.

Legislative framework

[3] Section 7(1) of the New Zealand Superannuation and Retirement Income Act

2001 (the Act) provides that every person is entitled to receive New Zealand superannuation who attains the age of 65 years.

[4] Section 8(a) of the Act provides no person is entitled to New Zealand superannuation unless they are ordinarily resident in New Zealand on the date they apply for New Zealand superannuation.

[5] Section 8(b) of the Act provides that the applicant must have been resident and present in New Zealand for a period or periods aggregating not less than ten years since obtaining the age of 20 years in order to be eligible for New Zealand superannuation.

[6] Section 8(c) of the Act provides that the applicant must have been resident and present in New Zealand for a period or periods aggregating not less than five years since obtaining the age of 50 years in order to be eligible for New Zealand superannuation.

[7] Section 9(1) of the Act provides that when determining the period an applicant has been present in New Zealand, no account is taken of periods of absence from New Zealand:

(1) for medical or surgical treatment or vocational training; (2) while the applicant is serving as a mariner;

(3) while the applicant is serving in armed forces;

(4) while the applicant is serving as a volunteer with Volunteer Service

Abroad Inc.

However, the criteria in s 9(1) of the Act only applies if the Ministry is satisfied that during his or her absence the applicant remained ordinarily resident in New Zealand.¹

[8] Section 10 of the Act provides that when determining the period an applicant for New Zealand superannuation has been present in New Zealand, no account is taken of any period of absence while engaged in missionary work outside New Zealand.

The Authority’s questions

[9] The three questions which the Authority has posed are:

(1) Did the Authority err in law when holding s 10 of the Act is directed towards determining residence requirements in s 8(b) and (c) of the Act?

(2) Did the Authority err in law by holding that a missionary must show that her settled life is in New Zealand and absences from New Zealand are temporary, in order to be considered “ordinarily resident” in New Zealand?

(3) Did the Authority err in law in its application of the meaning of

“ordinarily resident in New Zealand” to Mrs Greenfield’s situation?

Background facts

[10] Mrs Greenfield and her husband work for an international missionary organisation and have rented an apartment in Singapore since 1993, a base from which they undertake missionary work in South East Asia.

[11] Mrs Greenfield and her husband own land in New Zealand on which they plan to build their retirement home. They have children and grandchildren living in

_{New Zealand and return to New Zealand each year to see their family and friends.}

¹ New Zealand Superannuation and Retirement Income Act 2001, s 9(2).

Mr and Mrs Greenfield continue to receive their medical care from doctors in New

Zealand.

[12] Mrs Greenfield and her husband have residency visas for Singapore. Their visas are renewed every five years. Mrs Greenfield pays income tax in Singapore and declares her New Zealand income in Singapore.

[13] Mrs Greenfield turned 65 on 1 February 2012 and returned to New Zealand to apply for New Zealand superannuation and then returned to Singapore to continue her missionary work.

[14] Mrs Greenfield’s application was declined by the Ministry on the basis that she was not “ordinarily resident” in New Zealand on the date she applied for New Zealand superannuation.

The Authority’s decision

[15] The Authority said that the purpose of ss 9 and 10 of the Act:²

... is clearly stated to be for calculating “the period an applicant has been resident in New Zealand”. This relates to the criteria in s 8(b) and (c) that a person be in New Zealand for 10 years since attaining the age of 20 years and five years [since] attaining the age of 50 years. It is about a period of time.

[16] The Authority reasoned that s 10 of the Act is directed towards determining the period an applicant has been present and resident in New Zealand for the purpose of calculating the periods of residence required under s 8(b) and (c) of the Act. The Authority’s reasoning that s 10 applies to that calculation is the focus of the first question posed by the Authority for me to answer.

[17] After reviewing a number of cases, the Authority put forward a test which it held Mrs Greenfield had to meet to establish she was ordinarily resident in New Zealand at the time she applied for New Zealand superannuation. The test

_{advanced by the Authority required Mrs Greenfield to show that at the time she}

2. An appeal by Dawn Greenfield against a decision of the Benefits Review Committee [2013] NZSSAA 14 at [22](1).

applied for New Zealand superannuation she was leading a settled life in New Zealand and any absences from New Zealand were only temporary. The adoption of this test is the focus of the second question posed by the Authority.

[18] Applying that test the Authority held Mrs Greenfield was not leading a settled life in New Zealand and her absences were not temporary. The Authority held it was difficult to characterise Mrs Greenfield’s pattern of life in Singapore where she holds a residence visa, is resident for tax purposes, and her absence for 19 years as equating to a temporary absence. The Authority said:³

Being ordinarily resident in New Zealand is more than simply regarding oneself as a New Zealander or regarding New Zealand as home.

[19] The Authority found that its approach to interpreting ss 8 and 10 of the Act does not present problems for missionaries seeking to apply for New Zealand superannuation if they returned to live in New Zealand on a long-term basis once they have turned 65. It is only when a missionary continues to work overseas once they have turned 65 that a problem arises if they want to receive New Zealand superannuation.

[20] The Authority’s application of that test is the focus of the third question which the Authority has invited me to answer.

Statutory basis for an appeal

[21] Mrs Greenfield’s right to appeal to the High Court under s 12Q of the Social Security Act 1964 is confined to questions of law. To facilitate Mrs Greenfield’s appeal the Authority has posed the three questions set out in paragraph [9] of this judgment. Mrs Greenfield’s appeal can only be allowed by me if I am satisfied the Authority either:

(1) made an error of law when it interpreted and applied ss 8 and 10 of the Act; or

³ At [37].

(2) reached a finding of fact that was not reasonably open to it.⁴

[22] The Supreme Court has explained that an error of fact may constitute an error of law when the fact-finder’s decision is:

(1) not based on evidence; or

(2) based on evidence that is inconsistent with and contradictory of, the findings of fact; or

(3) contradicts the only true and reasonable conclusion of fact that was available on the evidence.⁵

Question 1: Did the Authority err in law when holding s 10 of the Act is directed towards determining residence requirements in s 8(b) and (c) of the Act?

[23] Both parties agree the Authority erred when it held s 10 of the Act was specifically directed towards deciding the period an applicant has been present and resident in New Zealand for the purposes of calculating the residence criteria for New Zealand superannuation in s 8(b) and (c) of the Act. This is because the words in s 10 do not refer to residence in New Zealand.

[24] Entitlement to New Zealand superannuation is subject to both an age and residency qualification. The residency qualification is set out in s 8 of the Act. An applicant must:

(1) be ordinarily resident in New Zealand on the date they apply for

New Zealand superannuation; and

(2) have been resident and present in New Zealand for a period or periods aggregating not less than ten years since attaining the age of 20 years;

_and

⁴ _{Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 (HL) at 14.}

⁵ Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]- [26].

(3) have been both resident and present in New Zealand for a period or periods aggregating not less than five years since attaining the age of

50 years.

[25] There are two statutory exceptions to the presence requirements set out in s 8(b) and (c) of the Act. Those exceptions are provided for in ss 9 and 10 of the Act.

[26] Section 10 provides that when calculating the period an applicant has been present in New Zealand no account is taken of the time the applicant has been engaged in missionary work outside of New Zealand. Section 10 is confined to the calculation of the period a person is absent overseas undertaking missionary work. Section 10 of the Act does not refer to residency.

[27] I therefore agree with the parties that the Authority erred when it reasoned s 10 of the Act specifically applied to determining the period an applicant has been resident and present in New Zealand for the purposes of the residency calculations in s 8(b) and (c) of the Act.

Question 2: Did the Authority err in law by holding that a missionary must show that her settled life is in New Zealand and absences from New Zealand are temporary, in order to be considered “ordinarily resident” in New Zealand?

[28] This is the crucial question raised by this appeal.

[29] Mr McKenzie QC, senior counsel for Mrs Greenfield, submitted that the purpose of ss 8 and 10 of the Act is to recognise that persons who have a vocation that requires them to live their daily lives outside of New Zealand for long periods of time are still eligible for New Zealand superannuation when they attain 65 years. He suggested the Authority’s approach to ss 8 and 10 of the Act subverted Parliament’s intent because the Authority’s approach means a person engaged in missionary work for a short time will be regarded as “ordinarily resident” in New Zealand, whereas a person who spends a lifetime in missionary service abroad is apparently not ordinarily resident in New Zealand. Mr McKenzie said the Authority’s approach “turns the legislation on its head”.

[30] Mr McKenzie was concerned at the Authority’s approach to Wilson v Social Security Commission,⁶ which he submitted is directly on point. That case was concerned with determining ordinary residence for the purpose of entitlement to national superannuation under the Social Security Act 1964. Mr McKenzie said that the Authority simply cited Wilson but then ignored it and relied instead on cases concerned with determining ordinary residence in quite different contexts from the

present case.

[31] In Wilson, an applicant for national superannuation had been absent overseas for a number of periods in order to obtain medical treatment. The Social Security Act 1964 provided that in determining the prescribed periods of ordinary residence no account was to be taken of any period of absence for the purpose of obtaining any

special medical or surgical treatment.⁷ Tompkins J held that whether a person is

ordinarily resident in New Zealand is a question of fact and degree, the most important factor being the applicant’s intention. Tompkins J summarised the meaning of ordinarily resident in these words:⁸

If during that period, the person has a firm, clear intention to return to New Zealand when the purpose of the period of absence has ended or has been achieved, then that person may well remain ordinarily resident in New Zealand. Conversely, if that person although ultimately intending to return to New Zealand, remains overseas after the specific purpose is no longer applicable, then that person may well cease to fulfil the test.

[32] Mr McKenzie submitted that if the test articulated by Tompkins J had been correctly applied by the Authority, it would have concluded Mrs Greenfield had every intention of returning to New Zealand to retire and that accordingly, at the time she applied for New Zealand superannuation she was ordinarily resident in New Zealand.

[33] Mr McKenzie submitted that despite referring to Wilson, the Authority really ignored that decision by focusing wrongly on the amount of time Mrs Greenfield has not been present in New Zealand. He suggested the correct approach in this case

_{should focus on the reason for Mrs Greenfield’s absence. Mrs Greenfield is not}

⁶ _{Wilson v Social Security Commission [1988] 7 NZAR 361 (HC).}

⁷ _{Social Security Act 1964, s 14(2)(g).}

⁸ Wilson v Social Security Commission, above n 6, at 8-9.

present in New Zealand because she is undertaking missionary work, and because she has every intention of returning to New Zealand the correct application of Wilson would have led the Authority to conclude that Mrs Greenfield was ordinarily resident in New Zealand at the time she applied for New Zealand superannuation.

[34] Mr Andrews, senior counsel for the Ministry, submitted that the Authority was entitled to examine judicial interpretations of “ordinarily resident” even where that concept is used in different contexts from the present case.

[35] Mr Andrews suggested considerable assistance can be derived from cases such as R v London Borough of Barnett ex parte Shah, in which Lord Scarman said:⁹

Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

...

The purpose may be one; or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the “propositus” intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. ... All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

... if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary, absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.

[36] Mr Andrews also submitted assistance can be derived from House of Lords cases concerning interpretation of tax legislation. In Levene v Inland Revenue Commissioners,¹⁰ Viscount Cave said:

I think that [ordinarily resident] connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.

_{A similar approach was taken in Inland Revenue Commissioners v Lysaght.}¹¹

⁹ _{R v London Borough of Barnet ex parte Shah [1983] 2 AC 309 (HL) at 344.}

¹⁰ _{Levene v Inland Revenue Commissioners [1928] AC 216 (HL) at 225.}

¹¹ Inland Revenue Commissioners v Lysaght [1928] AC 234.

[37] Mr Andrews submitted that Wilson is not as helpful as Mr McKenzie suggested. Mr Andrews said there were key differences between the facts and law in Wilson from the present case. In particular:

(1) The superannuation in the context of Wilson was provided for in the now repealed s 14 of the Social Security Act 1964. The test advanced by Tompkins J did not arise in the context of the periods a missionary is absent from New Zealand but in the context of Mr Wilson being absent for one of the purposes provided in s 14, namely obtaining special medical treatment. This criteria is now one of those set out in s 9(1) of the Act.

(2) Under s 14 of the Social Security Act 1964 those who were absent for reasons provided in s 14 “must remain ordinarily resident while absent” in order for those periods not to have been counted. This qualification has been retained in s 9 of the current Act, but does not apply to missionaries under s 10. The intention of an applicant missionary, while absent, is therefore not as important as it is for those absent for other reasons when determining whether the applicant is “ordinarily resident”.

[38] Mr Andrews submitted the Act should be interpreted by applying the natural and ordinary meaning of “ordinarily resident” in the context of establishing the residential requirement for eligibility to New Zealand superannuation. Applying the natural and ordinary meaning of that phrase, Mr Andrews submitted that Mrs Greenfield’s intentions are not determinative and that accordingly the Authority was correct when it concluded that Mrs Greenfield was not eligible for New Zealand superannuation.

Analysis

[39] In undertaking my task I shall analyse the: (1) text;

(2) context; and

(3) purpose of

ss 8 and 10 of the Act.

In identifying these routes of analysis I emphasise there are no rigid boundaries between these routes. At times they converge.

(1) Textual analysis

[40] The word “resident” is a common English word and is defined in the Oxford English Dictionary as meaning “residency, dwelling, or having an abode in a place ... staying regularly in a place ...”.¹² Thus, an applicant for New Zealand superannuation is ordinarily resident in New Zealand if they have a regular mode of life in New Zealand.

(2) Contextual analysis

[41] The Social Security Act 1938 was the first statute in New Zealand to provide for superannuation entitlements for those who were “resident” in New Zealand. The Social Security Amendment Act (No. 2) 1962 provided that an applicant’s absence from New Zealand while engaged in missionary work was to be treated as residence in New Zealand when assessing an applicant’s entitlement to superannuation. The

explanatory note to the 1962 Amendment Act stated:¹³

For the purposes of satisfying the residential qualifications for a superannuation benefit ... absence outside New Zealand while engaged on missionary work or as the wife of a person engaged on missionary work may, in the discretion of the Commission, be treated as residence in

¹² _{Lesley Brown (ed) The New Shorter Oxford Dictionary (Clarendon Press, Oxford, 1993).}

¹³ Statutes Amendment Bill 1962 (100-1) (Social Security) (explanatory note) at xiii.

New Zealand if the applicant was born in New Zealand or was ordinarily resident in New Zealand when he left New Zealand for the purpose of engaging in missionary work or, in the case of a woman, when she left New Zealand with or for the purposes of joining her husband who was engaged in missionary work.

[42] The Social Security Amendment Act (No. 2) 1962 also introduced the term “ordinarily resident” into the legislation governing entitlements to superannuation. However, at that time, neither the term “ordinarily resident” or “resident” were defined in the legislation.¹⁴

[43] Section 14 of the Social Security Act 1964 provided that an applicant for a benefit, which included superannuation, had to be “ordinarily resident” in New Zealand at the date of their application.

[44] The additional requirement that an applicant be present and resident in New Zealand for specified times prior to applying for superannuation was introduced by the Social Security Amendment Act 1987.

[45] Thus, from 1987, an applicant for superannuation in New Zealand had to be ordinarily resident in New Zealand and “resident” and “present” for specified times prior to applying for superannuation. The explanatory note to the Social Security Amendment Act 1987 stated:¹⁵

To qualify for national superannuation a person must have been not only legally resident in New Zealand but also present in New Zealand during the relevant period or periods set out in the section.

[46] The terms “resident” and “ordinarily resident” continues to be defined in the Social Security Act 1964 by reference to lawful residency. However, neither concept is defined in the Act which governs this proceeding.

[47] This legislative background to the sections that I must consider demonstrates that when viewed in context, Parliament has drawn a clear distinction between being

¹⁴ The Social Security Amendment Act 1991 provided:

“Resident”, in relation to any person, does not include being unlawfully resident in New

Zealand.

“Ordinarily resident”, in relation to any person, does not include being unlawfully resident in

_{New Zealand.}

¹⁵ Social Security Amendment Bill 1987 (116-1) (explanatory note) at i.

“resident” and “present” in New Zealand and that it would be wrong to conflate those two concepts. Thus, a person could be present in New Zealand but not resident and therefore not eligible for New Zealand superannuation. Conversely, a person could be absent from New Zealand but still ordinarily resident in New Zealand and therefore eligible for New Zealand superannuation. The fact that a person is absent from New Zealand, even for long periods of time does not necessarily mean they are not ordinarily resident in New Zealand.

(3) Purpose

[48] The Authority’s interpretation of ss 8 and 10 draws a distinction between missionaries who have spent large periods of their life overseas and who have returned to settle in New Zealand at age 65, and those who wish to continue their missionary work overseas after they turn 65.

[49] On the basis of the Authority’s analysis, those who are in the first category I have referred to in paragraph [48] are entitled to New Zealand superannuation. However, missionaries in the second category I have referred to in paragraph [48] are not eligible for New Zealand superannuation.

[50] In my assessment, the distinction which the Authority has drawn is not consistent with the objectives of s 10 of the Act, which is designed to ensure that missionaries working abroad will not necessarily be rendered ineligible for New Zealand superannuation by virtue of the fact that they have devoted large portions of their life to overseas missionary work.

[51] Since 1964 Parliament has recognised that those who engage in missionary work, as well as those who undertake the activities now identified in s 9 of the Act should not be disentitled to New Zealand superannuation by virtue of the fact that they spend long periods of time abroad undertaking laudable activities such as missionary work. Parliament clearly recognised that people such as Mrs Greenfield and her husband could spend considerable periods of their working lives out of New Zealand yet, but not lose their entitlement to New Zealand superannuation.

My interpretation

[52] As discussed in the first ground of appeal, missionary status is not relevant to the ‘ordinarily resident” requirement in s 8(a). But I see no reason why an applicant’s intentions cannot be considered relevant in determining if they are ordinarily resident in New Zealand at the time they apply for New Zealand superannuation.

[53] The test articulated by Tompkins J in Wilson was applied by MacKenzie J in Clarkson v Chief Executive of the Ministry of Social Development.¹⁶ At issue in that case was Mr Clarkson’s status at the time he applied for New Zealand superannuation. Mr Clarkson and his wife went to South Africa for a holiday in August 2006. During their visit to South Africa their marriage ended. Mrs Clarkson returned to New Zealand and Mr Clarkson remained in South Africa. Eighteen months later Mr Clarkson applied for New Zealand superannuation. His application was declined on the basis that he had no intention of returning to New Zealand and

was therefore not ordinarily resident in New Zealand at the time he applied for New

Zealand superannuation. MacKenzie J said:¹⁷

Whether Mr Clarkson was ordinarily resident in New Zealand at the time of his application is to be determined having regard to his situation at that time. It is his intention at that time which is determinative, not his intention at the time he left New Zealand. His intention at that earlier time is relevant only to the extent that it casts light on his intention at the later time. It was not sufficient for the appellant to establish that his ordinary residence in New Zealand was not terminated by his intended temporary departure, nor that his return at the intended time may have been prevented by medical circumstances beyond his control. The question whether he was, at a considerably later date, ordinarily resident in New Zealand required an examination of the relevant circumstances at that later date.

[54] In my assessment, a plain reading of s 8(a) of the Act requires an assessment of Mrs Greenfield’s residency status at the time she made her application for New Zealand superannuation. That depends on a number of factors including:

_{(1) where she ordinarily spends most of her time;}

¹⁶ _{Clarkson v Chief Executive of the Ministry of Social Development [2010] NZHC 1375; [2010] NZAR 657 (HC).}

¹⁷ At [13].

(2) the reasons why she spends the majority of her time outside of

New Zealand;

(3) her residency status in Singapore;

(4) her clear and unequivocal intention to return to New Zealand to retire in due course.

[55] In my judgement, the correct question to ask in Mrs Greenfield’s case is whether or not her absence from New Zealand is temporary. An applicant’s intention is relevant to whether his or her absence from New Zealand is temporary or permanent. If Mrs Greenfield has an unequivocal intention to return to New Zealand at a future point of time, then that suggests her current absence is only temporary, which should be considered when assessing whether or not she is ordinarily resident in New Zealand at the time of her application.

[56] The approach which I have taken recognises that s 8 refers to three distinct concepts. Section 8(a) refers to an applicant being “ordinarily resident in New Zealand”. Section 8(b) and (c) refer to an applicant having been both resident and present in New Zealand for specific periods of time prior to applying for New Zealand superannuation. It is significant that Parliament has drawn a distinction between a person being both resident and present. This leads me to conclude that the text of s 8(a) requires a decision-maker to bear in mind that a person may be resident in New Zealand without having been present in this country for considerable periods of time.

[57] On the basis of this analysis, I am driven to the conclusion that the Authority erred when it failed to place sufficient weight upon Mrs Greenfield’s genuine intention to resume living in New Zealand and placed too much reliance on the period of time that she has been absent from New Zealand.

[58] In reaching this conclusion, I record the Authority was correct when it said that it needs to be satisfied that Mrs Greenfield’s absence from New Zealand is temporary in order for her to be considered ordinarily resident. However, a

temporary absence in this context could be for an extended period of time, so long as there was an intention to return.

[59] For these reasons the answer to Question 2 is ‘Yes”.

Question 3: Did the Authority err in law in its application of the meaning of

“ordinarily resident in New Zealand” to Mrs Greenfield’s situation?

[60] For the reasons which I have set out above, the Authority did misdirect itself on the correct legal test that needed to be applied when assessing Mrs Greenfield’s application and accordingly the Authority misapplied the meaning of “ordinarily resident in New Zealand” to Mrs Greenfield’s circumstances. For this reason, Question 3 must be answered “Yes”.

Disposition

[61] All three questions posed by the Authority are answered “Yes”.

[62] The Tribunal has stated as a fact that Mrs Greenfield and her husband “intend to return to New Zealand when they finish their missionary work” but they have not yet done so. I treat this as an important factual finding which was not given sufficient weight by the Authority and is a factor which in my assessment tips the scales in favour of the conclusion that Mrs Greenfield was ordinarily resident in New Zealand at the time she applied for New Zealand superannuation.

Costs

_{[63] Mrs Greenfield is entitled to costs on a scale 2B basis.}

Solicitors:

Robert Brace, Porirua for Appellant

Crown Law Office, Wellington for Respondent

D B Collins J