Hill v Chief Executive Ministry of Social Development [2019] NZHC 1661 (17 July 2019)

Last Updated: 7 August 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001857 [2019] NZHC 1661

IN THE MATTER	of the Social Security Act 1964
BETWEEN	PERCY HILL Applicant
AND	CHIEF EXECUTIVE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	4 July 2019
Appearances:	Applicant in person KM Hutchinson for Respondent
Judgment:	17 July 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 17 July 2019 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington. Copy to: P Hill, Auckland.

HILL v CHIEF EXECUTIVE MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC 1661 [17 July 2019]

[1] On 10 July 2017, the Social Security Appeal Authority dismissed an appeal of Mr Percy Hill. Mr Hill seeks permission to extend time to appeal the Authority’s decision. An appeal to the High Court in this context requires a question of law. And, one identifying alleged error on the Authority’s part.¹ The Ministry of Social Development opposes Mr Hill’s application for permission. It contends the proposed appeal raises no question of law, and the interests of justice tell against permission.

[2] Background is important. In early 2010, the Ministry concluded Mr Hill owed it money. Mr Hill challenged this decision in the Benefits Review Committee. On 29 June 2010, the Committee upheld the Ministry’s decision. The Ministry recovered the money between 14 July and 6 December 2010, by cancellation or modification of Mr Hill’s sickness benefit. 29 September 2010 was the last day for the filing of an appeal in relation to the Committee’s decision (upholding the Ministry’s one). Mr Hill filed his appeal on 7 November 2016. The Authority dismissed it. Mr Hill’s proposed appeal to this Court seeks to challenge this dismissal.

[3] More recent events are less significant. Between July 2017 and December 2018, Mr Hill spent much time trying to follow the correct procedure to seek this Court’s permission to extend time for the proposed appeal. On 5 December 2018, Jagose J directed Mr Hill’s paperwork be treated as an application for permission.

[4] Mr Hill raises two possible questions of law. The first relates to the letter accompanying the Authority’s decision—not the decision itself. The letter was unsigned. Mr Hill contends this raises a legal question: is an unsigned document valid? The second concerns s 252(6) of the Accident Compensation Act 2001.

[5] The first question is much too broad to qualify as a suitable question of law. And, its determination could not affect the validity of the Authority’s decision. As foreshadowed, the decision was signed by the members of the Authority who heard Mr Hill’s case.

¹ Social Security Act 1964, s 12Q; Social Security Act 2018, s 405.

[6] Section 252 of the Accident Compensation Act addresses the situation when a beneficiary receives an income-tested benefit under the Social Security Act 1964 and compensation under the accident compensation scheme in the same period. It and s 253 of the Act operate to prevent a beneficiary’s dual recovery.² Consequently, the Accident Compensation Corporation must refund the excess benefit payment to the department that paid it. Section 252(6) provides:

Any amount that is treated under this section as having been paid in respect of any treatment, service, rehabilitation, related transport, compensation, grant, or allowance is deemed for all purposes to have been so paid.

[7] Mr Hill wishes to argue this subsection affected his entitlement to a benefit, and hence had relevance to whether he owed the Ministry money. This is a distillation of Mr Hill’s oral argument, which invited attention to “jurisdiction of ... enactment”, the Ministry’s “invoice for reimbursement” and related matters.

[8] Section 252(6) is a deeming provision: a payment of the type made by the Corporation to, for example, the Ministry, is “deemed for all purposes to have been paid in respect of the ACC entitlement”.³ The learned authors of Personal Injury in New Zealand say this about the subsection:⁴

The intention behind subs (6) was outlined in a Labour Department report to the select committee considering the legislation in 2001. The report stated that a deeming provision was missing from the tax treatment of amounts reimbursed to Work and Income; and that such a provision would reduce a claimant’s tax liability by removing the amount of reimbursement from the total weekly compensation reported as paid in the current tax year. The report therefore recommended replicating the 1992 Act provision, on the basis that it deemed the amount to have been paid on the date it was originally paid by Work and Income.

Subsection (6) is best interpreted in accordance with this intention – ie that the amount of an ACC reimbursement to Work and Income is not included in the weekly compensation the ACC claimant would otherwise currently have to pay tax on.

² Cullen v Accident Compensation Corporation [2014] NZCA 94 at [11].

³ Goh v Accident Compensation Corporation [2015] NZHC 3353 at [19].

4. John Blincoe and others Personal Injury in New Zealand (online looseleaf ed, Thomson Reuters) at [AC252.06].

[9] Subsection (6) could give rise to a question of law, and has done so, at least in the context of surrounding provisions.⁵ But, subs (6) cannot be read as Mr Hill reads it for the simple reason it is not directed at benefit eligibility. So, as with Mr Hill’s first proposed question, determination of this could not affect the validity of the Authority’s decision.

[10] Mr Hill raises other points too, both in writing and orally. For example, Mr Hill contends the Committee (in June 2010) wrongly denied him an adjournment and gave inadequate notice he had been unsuccessful. The Authority noted these complaints and found against Mr Hill. None of this gives rise to an obvious question of law.⁶

[11] Delay also counts against permission, especially as Mr Hill is really seeking to relitigate the Committee’s 2010 decision. Mr Hill said he was overloaded with various benefit appeals and reviews, and his advocate failed to lodge a timely appeal. These explanations do not adequately explain a six-year hiatus.

[12] None of this is adverse commentary on Mr Hill’s sincerity; Mr Hill believes the Ministry was wrong, and he should be allowed to appeal. However, the proposed appeal contains no viable question of law and the delay is significant.

[13] Permission is declined for these reasons.

...................................

Downs J

5. See, for example, Cullen v Accident Compensation Corporation, above n 2, and Goh v Accident Compensation Corporation, above n 3.

⁶ Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.