Chief Executive of the Ministry of Social Development v Black [2016] NZHC 1274; [2016] 3 NZLR 341 (14 June 2016)

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).

IN THE MATTER OF	an appeal by way of case stated from the determination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security Act 1964
BETWEEN	THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Appellant
AND	N BLACK Respondent

Hearing:	1 June 2016
Appearances:	N Bailey & Mr Upperton for the Appellant G D Pearson for the Social Security Appeal Authority Respondent M White in person
_Judgment:	_{14 June 2016}

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v BLACK & WHITE [2016] NZHC 1274 [14 June 2016]

[1] These two proceedings were consolidated for this Court to consider appeals by way of case stated from similar determinations of the Social Security Appeal Authority (the Authority).

[2] In both situations, the Ministry of Social Development (the Ministry) had to determine which parent had greater responsibility for their child(ren) and was therefore entitled to have the child(ren) included in assessment of their entitlement to a benefit.

[3] Mr White shared in the care of five children, aged from seven to 14.¹His former partner, the children’s mother, was working 30 hours a week and her income was supplemented by the sole parent support to which she was entitled. Mr White had been in full-time employment but was made redundant in May 2014. He was granted a benefit at the single rate.

[4] Mr Black had one child aged five.²At the relevant time, the mother was receiving sole parent support for a parent with one child. Mr Black was receiving Jobseeker Support as a single parent.

[5] It had been determined that both parents were equally sharing responsibility for their child or children. Where the parents are living apart and sharing custody, the Social Security Act 1964 (the Act) provides for sole parent support to be available for just one parent.³In s 70B of the Act, there are detailed provisions as to how the chief executive of the Ministry must determine which parent is to be entitled to sole parent support.

[6] Applying those provisions, in each of the family situations with which these appeals are concerned, the chief executive decided the mother was entitled to the benefit. In each case, the father was receiving a different benefit. This benefit was

_{less than sole parent support. In each case, the father was aggrieved
that, despite}

their equal involvement in the care of the children, the chief executive had granted benefits to each parent in a way that favoured one over the other.

[7] In each case, the father appealed the Ministry’s decision to the Authority. It appears the Authority recognised the potential unfairness of the decisions which had been made by the chief executive. In each case, the Authority adjourned its determination of the appeal, directing the chief executive to make a determination as to whether or not, applying s 82(3)(b)(ii) of the Act, part of the mother’s benefit entitlement should be paid to the father for the benefit of the child or children.

[8] It is that direction which is the subject of the appeal by way of case stated. The chief executive argues that the Act does not allow for an apportionment of the sole parent support in the way the Authority has asked the chief executive to consider. The issue I must determine on both appeals is whether the Authority’s direction was unlawful.

[9] The specific questions for the Court to consider on the appeal are as follows:⁴

(i) did the Authority err in law by directing the chief executive to consider exercising his discretion under s 82(3)(b)(ii) of the Act in respect of Mr White’s former partner’s benefit entitlement?

(ii) Did the Authority act outside its jurisdiction in indicating to the chief executive matters which would need to be taken into account in exercising his discretion under s 82(3)(b)(ii) of the Act?

(i) did the Authority err in law by directing the chief executive to make a determination under s 82(3)(b)(ii) of the Act as to whether or not

⁴An appeal by way of case stated from the determination of the Social Security Appeal Authority HC Wellington CIV-2015-485-1007, 30 November 2015; An appeal by way of case stated from the determination of the Social Security Appeal Authority HC Wellington CIV-2015-485-1008,

(ii) Did the Authority act outside its jurisdiction in indicating to the chief executive matters which needed to be taken into account in exercising his discretion under s 82(3)(b)(ii) of the Act?

[10] I received detailed submissions from Ms Bailey of Crown Law for the chief executive. I also had the benefit of submissions from Mr Pearson for the Authority. Consistent with the approach which courts have considered appropriate where there is an appearance on behalf of the decision-making body, Mr Pearson confined his

submissions to the jurisdictional issue which I had to consider.⁵This is the issue

central to the appeal but Mr Pearson, as was appropriate, did not make any submissions as to the particular circumstances of each case.

[11] Mr Black advised the Court that, on this appeal, he would abide the judgment of the Court and I received no submissions from him.

⁵Portage Licensing Trust v Auckland District Licensing Agency (1997) 10 PRNZ 554 (HC), Fonterra Co-operative Group Ltd v The Grate Kiwi Cheese Co Ltd [2009] NZHC 2203; (2009) 19 PRNZ 824 (HC), and particularly the Court of Appeal’s observations in Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177.

only the parent whom the chief executive is satisfied has the greater responsibility for the child shall be entitled to have that child taken into account by the chief executive in assessing that parent’s entitlement to a benefit and the rate of benefit payable at any one time.

(2) In deciding which parent has the greater responsibility for the child, the chief executive shall have regard primarily to the periods the child is in the care of each parent and then to the following factors:

(a) how the responsibility for decisions about the daily activities of the child is shared; and

(3) If the chief executive is unable to ascertain that one parent has the greater responsibility for the child than the other, only the parent whom the chief executive ascertains was the principal caregiver in respect of the child immediately before the parents began living apart shall be entitled to have that child taken into account by the chief executive in assessing that parent’s entitlement to a benefit and the rate of benefit payable.

(4) If the chief executive is unable to ascertain which of the parents has the greater responsibility for the child or which of them was the principal caregiver before the parents began living apart, the parents shall agree between themselves as to which of them shall be entitled to have that child taken into account by the chief executive in assessing entitlement to a benefit and the rate of benefit payable; and until the parents reach agreement the child shall not be taken into account in assessing the entitlement to a benefit of, or the rate of benefit payable to, either parent.

[14] Section 82 sets out how instalments of benefits are to be calculated and payable, and relevantly provides:

(3) Except as otherwise provided in this Act, every instalment of a benefit shall be paid to or on account of the beneficiary personally:

provided that for good cause the chief executive may, in the chief executive’s discretion, direct that payment of the whole or any part of an instalment, or any number of instalments, be paid—

(a) to or on account of some other person authorised by the beneficiary or, in the case of a beneficiary who lacks sufficient capacity in law, to any person appointed by the chief executive for the purpose of receiving it; or

(ii) to, or for the benefit of, the spouse or partner of the beneficiary or any dependent child or children of the beneficiary.

[15] Ms Bailey submitted that benefits are inalienable under s 84 unless an exception applies. The discretion available in s 82(3) is to permit a benefit to be paid to someone else where there is good cause. As reflected in the Ministerial Direction on Redirection of Benefit Payments,⁶this provision is to be used to enable payment to be made for the benefit of a beneficiary or their dependants where they are in a vulnerable situation if their liabilities or debts to someone else are not paid. Apportionment for the purpose contemplated by the Authority is not that sort of situation.

[16] In enacting s 70B, Parliament had specifically stated that only one parent could have dependent children included in the assessment of their benefit, and provided a mandatory scheme for determining this. In doing so, it placed certainty above other considerations. The chief executive had to make its decisions within that scheme enacted by Parliament. In exercising the discretion available under s

82(3)(b)(ii), the chief executive must comply with the Ministerial Direction. That direction does not permit apportionment in the way the Authority directed the chief

⁶Anne Tolley Ministerial Direction on Redirection of Benefit Payments (Ministry of Social Development, 17 March 2015), with which the chief executive must comply in the exercise of his powers, functions and discretions: Social Security Act 1964, s 5(1).

[17] Section 70B must take precedence over s 82(3)(b)(ii). A general discretion cannot be used to override a conflicting specific mandatory provision.

[18] For the Authority, Mr Pearson submitted the Ministry administers in New Zealand the Convention on the Rights of the Child.⁷He referred to the way this Convention addresses the rights of children to have the benefit of both parents. Article 5 provides that the state shall respect the duties of parents. Article 9 provides that children shall not be separated from parents, without good cause. He referred specifically to:

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.

2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

[19] He submitted the power in s 82(3)(b)(ii) could be used to prevent the inequitable allocation of a benefit depriving a parent of the financial capacity to parent effectively.

[20] The Ministerial Direction referred to could not lawfully be used to remove or limit the chief executive’s responsibility to exercise a statutory discretion available to him and the particular direction did not do so.

[21] The discretion in s 82(3)(b)(ii) could only be exercised when an entitlement to a benefit had been established under other specific provisions of the Act. For it to have any effect, it thus could not be subject to the specific provisions which set out the criteria for entitlement to a particular benefit. He submitted that s 82(3) was complementary to other provisions dealing with a specific benefit and it did allow the chief executive to pay the benefit to someone other than the person who qualified for the benefit.

[22] The chief executive’s exercise of a discretion, in the way the Authority had indicated he should consider, was not going to give rise to a flood-gates situation but would enable the chief executive to consider the unusual and particular circumstances of the case before him. That was all the Authority required. The Authority was not directing what the outcome of that consideration should be.

[23] Interpreting the Act and the availability of a discretion in the way the Authority had done, would allow the chief executive to meet New Zealand’s obligations under the Convention on the Rights of the Child, particularly New Zealand’s commitment to obligations that:

40.1 It recognises both parents have common responsibilities for the upbringing and development of the child;

40.2 It will render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities;

40.3 It will recognise for every child the right to benefit from social security; and

40.4 It will grant benefits taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child.

[24] Understandably, Mr White did not address me on the jurisdictional issue. He did convey to me his frustration and sense of grievance as to the chief executive’s decisions over the allocation of benefits. He made the points that:

(a) when parents are together, both parents can be treated as providing for the support and care of their children equally. One parent, say the father, can make a primary contribution through the income he earns, in addition to providing other care when he is available for a child outside his employment. The other parent may make her contribution primarily through being available to provide more practical support for the child. Although responsibility for a child can be shared equally in this way, the allocation of a benefit between two parents in an equal-shared care situation has to be determined on the basis the chief executive must decide that one parent was the “principal caregiver” before the separation;

(b) the disparity in benefits for each parent resulting from the way the chief executive applies the legislation means that one parent can offer the child a better standard of living, better meals and is better able to offer treats or special activities for the child while in his or her care, thus making it less appealing for the child to be spending equal time with each parent. This is an outcome which is not in the child’s best interests; and

(c) the way in which benefits are allocated is thus contrary to the principles of other legislation such as the Care of Children Act 2004 and the Child Support Act 1991 which are premised on the basis that it is in the interests of children for both parents to be involved in their lives and to both be responsible for their care and support after separation.

[25] The second question of law for the opinion of this Court in each proceeding was, did the Authority act outside its jurisdiction in indicating to the chief executive

matters which would need to be taken into account in exercising his discretion under s 82(3)(b)(ii) of the Act?

[26] The submission for the chief executive was that the Authority had exceeded its jurisdiction but essentially for the same reason as counsel submitted the Authority had acted unlawfully in directing the chief executive to consider apportioning the benefit. In short, neither the chief executive nor the Authority could apportion sole parent support benefit between two separated parents where it had correctly determined which parent was entitled to a benefit, applying the provisions of s 70B.

[27] An appeal to the Authority is by way of rehearing.⁸The Authority has full discretionary power to hear and receive evidence or further evidence on questions of fact.⁹The Authority’s role is to consider all relevant matters. It must make its decision on all grounds raised before it and reach the legally correct conclusion on the question before it, applying the law to the facts as it found them upon the rehearing.¹⁰

[28] The Authority has all the powers, duties, functions and discretions that the chief executive had in respect of the same matter.¹¹The Authority has a specific power to refer the whole or any part of the matter to which the appeal relates back to the chief executive for further consideration.¹²Section 12M(8) provides:

(8) Notwithstanding the provisions of subsection (7), the Authority may refer to the chief executive for further consideration, the whole or any part of the matter to which an appeal relates, and where any matter is so referred the Authority shall advise the chief executive of its reasons for so doing and shall give such directions as it thinks just as to the rehearing or reconsideration or otherwise of the whole or any part of the matter that is so referred.

¹⁰Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1

[29] Ms Bailey accepted that, if the chief executive had the power to use the discretion referred to in s 82(3) to apportion a benefit that was payable to a mother on an application of s 70B between both parents, then the Authority would have had the power and jurisdiction to direct the chief executive to consider potential apportionment in the way that it did.

[30] I do not consider the Ministerial Direction should or does limit the discretion which would be available to the chief executive in the way the Authority considered it was.

(1) For the purposes of the proviso to section 82(3) of the Act, you may, without limitation, consider there is good cause to redirect a person’s benefit, and may exercise your discretion to redirect the person’s benefit, if you are satisfied that the person is in any of the following situations:

(a) the person is a tenant of any social housing and the redirection is required to ensure the person meets his or her rental commitments:

(b) the person is a resident assessed as requiring care or a person receiving residential care services who is required to contribute, from the person’s benefit, to –

(c) the person is or has a history of being at risk of being disconnected from essential services or telecommunication services, or of incurring late payment penalties, reconnection charges, or both because of non-payment and the redirection is required to help prevent that risk:

(d) the person is a vulnerable tenant and the redirection is required to reassure the person’s landlord, or prospective landlord, that the person will meet his or her rental commitments:

(e) the person has been ordered to pay, or is in default of payment of, any fine (within the meaning of section 126A(1) of the Act) and the redirection is required to make payments towards that fine:

(f) the person has money due under any judgment or order of any court or tribunal of New Zealand and the redirection is required to make payments towards the amount due:

(g) the person is otherwise liable to pay any debt or other liability for goods or services that you consider are essential for the person or any of his or her dependants and the redirection is necessary to make payments towards the amount due:

(h) the person has a history of poor financial management and the redirection is necessary to ensure the priority needs (including those relating to essential services, telecommunication costs, accommodation costs, medical care, or education) of the person and his or her dependants are met.

(2) Nothing in subclause (1) requires you to redirect a benefit or an instalment of a benefit if, in the circumstances of the case –

(b) you consider there would be insufficient funds for the redirection to operate having regard to –

[32] The use of the words “you may, without limitation” expressly demonstrates this direction was not to limit the scope of the discretion available to the chief executive under s 82(3). It is also clear from the particular situations the direction refers to that the direction is concerned with the exercise of a discretion provided for in s 82(3)(b)(i), that is the payment of a beneficiary’s debts or other liabilities. The direction requires the chief executive to consider whether a person’s benefit should be paid to a creditor for the benefit of that person, primarily in circumstances where redirection of the benefit would assist in ensuring that person’s essential needs are met. The Minister also directs the chief executive to consider whether the whole or part of a person’s benefit should be redirected to pay fines or an order of a court or tribunal. In the direction, the Minister was not requiring the chief executive to consider whether the benefit should be paid to or for the benefit of a spouse, partner or any dependent child of the beneficiary.

[33] Ms Bailey also submitted that, if the scope and availability of the discretion in s 82(3) is as contended for by the Authority, it would create uncertainty and administrative difficulties for the chief executive in administering the Act. There would be no statutory criteria which the chief executive would have to take into account in determining what any appropriate apportionment might be. There would be difficulties in ensuring that information personal and private to separated parents was treated as private, given the need for both parties to be informed as to the basis on which a chief executive might reach a decision about the potential apportionment of a benefit.

[34] I do not accept that such considerations should influence my judgment as to what the legislation permits. There are a number of areas in which the Ministry, through the chief executive, is given a discretion as to how benefits might be paid or as to particular special assistance that might be available.¹³

[35] It would also be possible for a Minister to issue a Ministerial Direction providing some guidance as to how the discretion might be exercised. Ms Bailey also advised me that, within the Ministry, there are also protocols or guidelines developed for the benefit of staff to assist them in making the sort of decisions which would be required if a chief executive had to consider whether part of a benefit payable to one parent should be paid to another parent. There is an example of how the issue might be addressed through the detailed questionnaire which both parents were required to answer when the Ministry was dealing with the Black matter. Those questionnaires were part of the common bundle provided to the Court in relation to that appeal.

_{82(3)(b)(ii) should be limited by the specific provisions of s 70B,
it would be}

40D(4) (eligibility for supported living payment on ground of caring for patient requiring care),

40E(2) (supported living payment: on ground of caring for patient requiring care: medical examination), 60H(6) (continued payment of benefit despite loss of unemployment through misconduct), 61 (emergency benefit and rate), 61DB–DE (payment of funeral grants), 62 (grant of benefit after death of applicant), 63A (extended benefits for children who continue education),

76(2)–(5) (continued payment of benefit during imprisonment or detention), 77 (effect of absence of beneficiary from New Zealand).

appropriate to have regard to the Convention in determining the scope of the discretion. The Convention cannot however be used to alter the meaning and intent of those sections if that is otherwise clear from the legislation.

[37] There is a presumption of statutory interpretation that legislation should be read in a way which is consistent with New Zealand’s international obligations but that is “so far as its wording allows”.¹⁴

[38] In Helu v Immigration and Protection Tribunal, the Supreme Court considered the spectrum of parliamentary approaches to the implementation of international obligations.¹⁵The Supreme Court observed that where a statute does not mirror the terms of substances of the international text:

[143] ... the legislation purpose is that decision-makers will apply the New Zealand statute rather than the international text. Resort may still be had to the international instrument to clarify the meaning of the statute under the long-established presumption of statutory interpretation that so far as its wording permits, legislation should be read in a manner consistent with New Zealand’s international obligations.¹⁶But the international text may not be used to contradict or avoid applying the terms of the domestic legislation.

[39] Section 70B includes a number of provisions which would not be given effect to if the discretion in s 82 can be used as the Authority presumed it might be.

[40] Section 70B(1) deals expressly with the way parents of a dependent child may be entitled to benefits in a case of shared custody where they are living apart, both are eligible for a benefit and each has primary responsibility for the care of a dependent child for at least 40 per cent of the time. Section 70B(1) states that, in those circumstances:

... only the parent whom the chief executive is satisfied has the greater responsibility for the child shall be entitled to have that child taken into account by the chief executive in assessing that parent’s entitlement to a benefit and the rate of benefit payable at any one time.

¹⁴New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at

¹⁵_{Helu v Immigration and Protection Tribunal [2015]
NZSC 28, [2016] 1 NZLR 298 at [143].}

¹⁶Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24]; and New Zealand

[41] If the benefit payable to the parent who, applying the provisions of the Act, has the greater responsibility for the child is reduced through part of that benefit being paid to the other parent, that would involve the chief executive taking into account both parents’ care of the child or children in assessing the primary parent’s entitlement to a benefit and the rate of benefit payable at any one time. That would be contrary to the express limitation Parliament has provided for in ss 20C(2) and

[42] Sections 70B(2) and (3) provide for a step-down process which the chief executive or the Authority on an appeal must follow to determine which of two parents is entitled to have the child or children they are caring for taken into account in assessing that parent’s entitlement to a benefit and the rate of benefit payable. That mandatory process and the criteria to be considered in following it would effectively have to be disregarded if the chief executive were to decide questions as to both entitlement to and rate of a benefit through the exercise of a broad discretion.

[43] Section 70B(4) provides for the situation where, following the statutory process, the chief executive is unable to ascertain which of the parents had the greater responsibility for the child or which of them was the principal caregiver before the parents began living apart. Section 70B(4) gives the parents the power (and implicitly the responsibility) to agree between themselves as to which of them shall be entitled to have the child or children taken into account in assessing entitlement to a benefit and the rate of benefit payable. Parliament has expressly provided that, if, in such circumstances, the parents do not reach such an agreement, the consequence is that neither parent will be entitled to a benefit taking into account their care of the child.

[44] As Heath J noted in Samuels v Chief Executive of the Ministry of Social Development, s 70B(4) places an onus on parents who had joint responsibility for the care of the child before they began to live apart.¹⁷If the chief executive cannot establish which of the parents had the greater responsibility for the child or which of

_{them was the principal caregiver before they separated, there is no
obligation for the}

¹⁷Samuels v Chief Executive of the Ministry of Social Development [2006] NZFLR 223 (HC) at

chief executive to take that child into account in assessing either parent’s entitlement to a benefit. As Heath J noted, in that situation, s 70B(4) enables the chief executive to abdicate the responsibility to make the decision.¹⁸If the chief executive can be directed to consider the potential apportionment of the benefit between the parents, the chief executive will not be able to abdicate responsibility in the way the legislation says he is able to do.

[45] Mr Pearson nevertheless contended that the discretion in s 82 is there to give the chief executive the discretion to override or depart from the provisions in the Act by which the entitlement and rate of a particular benefit are to be established. That contention cannot however be supported on the basis of the correct interpretation of s

[46] In the circumstances of the two cases before it, the Authority directed the chief executive to consider whether both parents should be entitled to share in a benefit to which applying the specific provisions of the Act, particularly s 70B, only one of them could be entitled. Were the chief executive to conclude that the parent who would otherwise have been entitled to the whole of the benefit should have that benefit reduced through part of it being paid to the other parent, the chief executive would be deciding that she should not be entitled to the full benefit or that the rate of her benefit should be redirected. Section 82(3) does not give the chief executive the discretion to make a decision of that sort.

[47] The starting point is that “every instalment of a benefit shall be paid to or on account of the beneficiary personally”. The payment of the benefit to another parent from whom the primary beneficiary is separated would not be a payment to or on account of that primary beneficiary personally.

[48] The chief executive, through s 82(3)(a), is given the discretion to direct that a payment for the beneficiary be made to or on account of some other person authorised by the beneficiary or, if the beneficiary lacks sufficient capacity in law, to any person appointed by the chief executive for the purpose of receiving it. That

_{provision permits the chief executive to pay a benefit to someone else
but it must be}

either authorised by the beneficiary who is entitled to the benefit or for that beneficiary’s benefit. Section 82(3)(b)(i) then gives the chief executive a discretion to pay a benefit with or without the consent of the beneficiary “to any person in payment of the beneficiary’s lawful debts or other liabilities”.

[49] The Ministerial Direction on redirection of benefit payments directs the chief executive to consider particular circumstances in which a benefit might be paid to someone else but, in every respect, it is to meet the debts or liabilities of the beneficiary. There is nothing in that direction to indicate the Minister contemplated part of a benefit could be paid to another person not entitled to that benefit or for the benefit of someone other than the entitled beneficiary.

[50] Section 82(3)(b)(ii) permits the chief executive to pay the whole or part of any benefit instalment with or without the consent of the beneficiary “to, or for the benefit of, the spouse or partner of the beneficiary or any dependent child or children of the beneficiary”.

[51] I have had regard to the context in which those words are used, the scheme of the Act as a whole and the particular provisions of s 70B. I consider that provision is to enable a chief executive to ensure a benefit is being applied for the benefit of the beneficiary entitled or for the child of that beneficiary through paying the benefit to another party. Payment in such a way would however still be for the benefit of the beneficiary entitled.

[52] It is not hard to foresee circumstances in which that might be appropriate. For instance, if one person in a couple had a drug or gambling problem which created a real risk that benefit monies might be misused rather than in meeting the essentials of living, it might well be appropriate for that person’s benefit to be paid to his or her spouse or partner so that it was used for necessities. If the single parent of a child, for some reason, was temporarily incapacitated and unable to care for the child, and someone else was to have that responsibility, it might well be appropriate for the chief executive to arrange for that parent’s benefit to be paid to that other person. The parent having the care of a child might be entitled to a particular benefit. That child might have special needs which might require treatment or

medication the parent had to pay for. It might be appropriate for the chief executive to ensure that the child’s needs were met through directing that part of the benefit was paid directly to the person providing that medication or otherwise meeting the child’s needs.

[53] It would be contrary to the scheme of the Act and its particular provisions if the discretion in s 82(3)(b)(ii) could be used to deprive a person of a benefit which, in accordance with the specific provisions of the Act, she would otherwise have been entitled to, or to reduce the rate at which that benefit would be paid in accordance with specific provisions of the Act.

[54] That interpretation of s 82(3) accords with the ordinary and clear meaning of the words used in the legislation. It also gives effect to the principle that, in statutory interpretation, a general discretion cannot override conflicting specific mandatory provisions.¹⁹

[55] Mr Pearson described s 82(3)(b)(ii) as being “a mechanical provision dealing with payment of benefits, after entitlement is established”. I agree. It gives the chief executive a discretion as to how a benefit for the beneficiary entitled should be paid. It does not give the chief executive a discretion to take part of that entitlement away from that beneficiary and to give it to someone else or to allow it to be used for the benefit of someone else.

[56] The view I have come to as to the limits on the discretion which is available to the chief executive under s 82(3)(b)(ii) and the primacy of s 70B, accords with the intention of Parliament, as apparent from the legislation.

[57] It seems likely that, in the circumstances of the cases it was dealing with, the

Authority came to the view that applying the Act, according to its provisions with just one parent being entitled to sole parent support, would result in unfairness to the

¹⁹See the discussions in Ross Carter Burrows and Carter Statute Law in New Zealand (5^thed, LexisNexis, Wellington, 2015) at page 465. The discussion in an earlier edition of this text has been approved and adopted by the Court of Appeal. R v Frost [2008] NZCA 406 at [14]. See also the judgments referred to in the latest edition at 465, including Jennings Road Freight Ltd (in liq) v Commissioner of Inland Revenue [2014] NZSC 160, [2015] 1 NZLR 573 at [13], [17] and [18].

other parent. The Authority’s view is understandable. However, it could deal with the situation only in terms of the legislation under which it had to make its determination. It could not lawfully remit part of the matter back to the chief executive and require him to consider whether or not he should apportion the benefit in a way the legislation did not permit him to do. To empower the chief executive to remedy such perceived unfairness is thus a matter for Parliament to consider and address if it considers this necessary. The unfairness cannot be addressed through the Authority requiring the chief executive to act in a way he is not permitted to under the legislation as it stands.

[58] Accordingly, I answer the questions of law for the opinion of this Court on appeal by way of case stated as follows.

(i) Did the Authority err in law by directing the chief executive to consider exercising his discretion under s 82(3)(b)(ii) of the Act in respect of Mr White’s former partner’s benefit entitlement?

(i) Did the Authority err in law by directing the chief executive to make a determination under s 82(3)(b)(ii) of the Act as to whether or not he should pay part of Mr Black’s former partner’s benefit to Mr Black for the benefit of the child and the amount of such payment?

(ii) Did the Authority act outside its jurisdiction in indicating to the Chief Executive matters which needed to be taken into account in exercising his discretion under s 82(3)(b)(ii) of the Act?

[59] The Authority in each case adjourned the appeal for the chief executive to consider potential apportionment of the benefit to which the mother was entitled. With this judgment, the chief executive is no longer required to do this. Each matter must be remitted back to the Authority with this opinion for the Authority to finalise the appeals.

[60] Mr White did not have legal representation. The Ministry was represented through Crown Law. Submissions were made for the Authority through the Ministry of Justice. I doubt that any issue of costs will arise but, if it does, a memorandum is to be filed for the Ministry within 14 days, any response from the Authority within a further seven days. The memoranda are to be no longer than three pages.

High Court of New Zealand Decisions

Chief Executive of the Ministry of Social Development v Black [2016] NZHC 1274; [2016] 3 NZLR 341 (14 June 2016)