MUST READ: It needs to be more than a BBQ Jacinda

By   /   March 13, 2018  /   23 Comments

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MSD are prepared to pontificate in court for days about how married couples have greater economies of scale than two singles living together and how society expects partners to support each other. The 21st century has passed them by.

Why do we concede power and deference to these unelected officials?  Is it time to give up on the courts?

I have spent a good deal of the last 15 years under the illusion that the courts have a critical role to play in helping secure social justice when other avenues fail.

In the field of social welfare, many unjust and unsubstantiated decisions with far-reaching consequences are handed out to beneficiaries, who in the main must just suck it up. Only the very bold can summon the strength to challenge these decisions but when they do, they face a convoluted internal review process. Under-resourced complainants have little chance in the Benefits Review Committee (BRC) hearings that are stacked with Ministry of Social Development (MSD) people.

Some very few, very brave and usually very angry beneficiaries, take an appeal of their BRC decision to the Social Security Appeals Authority, consisting of 3 persons appointed on the recommendation of the Minister of Social Development after consultation with the Minister of Justice. Mostly the outcomes there endorse the original MSD decision. If they don’t, they may be ignored and the AAAP reports  an example this week. The individual ends up demoralised and exhausted. On very rare occasions, the case is appealed to higher courts, where the individual faces the full power of the highly-resourced team of Crown Lawyers.

CPAG has been closely following two recent landmark cases that have been appealed to higher courts. The first, whose story was recorded for CPAG by Barrister Catriona MacClennan, see Kathryn’s Story,  has been 17 years in the courts with no official resolution. While spending many hundreds of thousands dollars of tax payers’ money and commandeering huge amounts of court time to defend the indefensible, the Crown will recover only a few thousand dollars from her if they are lucky.

A second case, in which MSD argue that loans are income, see Ms X, has been eight years in the courts so far. Although she borrowed money and has repaid it, she is accused of spending more than the benefit when she was a sole parent 12 years ago. The MSD used the difference to claim she was overpaid $120,000.  Her latest hearing was July 2017 and the decision is still awaited from the High Court.

Sometimes the court process is via the Human Rights Review Tribunal. CPAG argued for 6 years from 2002 to get the case they took against the In-Work-Tax-Credit to the Tribunal. A two-week hearing in 2008 was followed by an unsatisfactory decision which was appealed to the High Court and then appealed  to the Court of Appeal. After ten years, and thousands of hours and documents CPAG saw the futility of taking it to the Supreme Court.

The latest case, heard in Wellington in the HRR Tribunal last week, was to scrutinise the case against the unfair spouse pension rule that sees a small group of not very well-off superannuitants harshly penalised for marrying the wrong person.

Years in the working up of the evidence, the Office of the Human Rights Proceedings took the case against the Crown. The Crown lawyers, aided by their ‘expert witnesses’ from MSD again argued the indefensible.

We were treated to hours of tedious and highly selective history of the welfare state starting in the 16th century in the UK. Faceless male bureaucrats recounted the Destitute Persons Act of 1847 to prove that NZ women who have lived and worked all their lives in NZ should be treated as dependants of their husbands if they were unfortunate enough to marry someone with an overseas pension.

That an overseas pension reduces a person’s NZ Superannuation by the same value is harsh enough. But if there is any overseas pension left over, that excess is deducted dollar for dollar from that person’s spouse’s pension. Worse still, if the person with the overseas pension does not qualify for NZ Superannuation, the MSD deduct the lot from the spouse’s pension.  Yes that is right.

It doesn’t matter that some spouses have lived all their lives in New Zealand, or that it is a second or third marriage, or in a relationship of short duration. Nor does it make any difference if the couple are in very low-income households as most are. Nor does it make any difference that MSD in the past has recommended the spousal deduction be abolished- nor does it matter that it would cost only $2m per annum to fix.

MSD are prepared to pontificate in court for days about how married couples have greater economies of scale than two singles living together and how society expects partners to support each other. The 21st century has passed them by.

Why do we concede power and deference to these unelected officials?  Is it time to give up on the courts?

Reluctantly I have come to the conclusion is that it is pointless for individuals affected by MSD decisions to appeal to higher courts. Class actions on behalf of a group- 230,000 children in CPAG’s case, a handful of superannuitants in the current case, get bogged down and serve only to further fuel the entrenched bias of officials, and the powerlessness of victims of an outdated system.

The only solution is for principled politicians to call a halt. Judges are not qualified to make social policy. Just as Jacinda can improve Niuean pensions overnight, she could abolish the spousal deduction rule immediately. Her clear grasp of social fairness should allow her to cut through the morass and allow common sense and decency to prevail.

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About the author

Co-director retirement policy and Research Centre, CPAG management committee

23 Comments

  1. Dorothy Bulling says:

    I live with my husband of almost 55 years and receive half of the married rate in my name, but if we were 2 friends sharing the house, but not living in a married state, we would each receive the single pension, but not of course the living alone allowance. We would be better off by aroubd $200 per fortnight ax far as I can see. We are taxed individually, but when living in the nature of a marriage are counted as 1 unit for income. Not right.

    • Susan St John says:

      Dorothy
      you are so right. The distinction between single sharing and married is ridiculous, but at least you are not jointly income-tested. In the case before the courts a woman on NZS, been all her life in NZ, is not only reduced to the married rate when she partners, but if her new spouse is from a country like Canada or US or Germany with their own pension she might find she will get no NZS at all. His pension is deducted dollar for dollar from hers if he is not entitled to NZS himself. If he is entitled to NZS, his pension is offset against his NZS and any excess deducted from hers.

  2. Leigh says:

    I have just been right through to the Social Security Appeals Authority with my Father (who was lived and worked very hard all of his life in NZ) who is on a half married rate pension (so less than the single pension) from which his overseas partners pension is then deducted from, leaving $290 a week for both of them to somehow live on. AND the SSAA agreed that yes this was unjust, unfair and not what parliament had intended for s (70) of the act – but refused to remedy this (using s (70) 2 which allows room to remedy) because the situation was not “extreme” enough.. I cannot figure how the SSAA determine $31,000 (10 years @ $3,100 a year) is not extreme enough to a couple who are trying to live on $290 a week..

  3. On Watch says:

    (Apologies if this has already come through – having trouble posting )
    I have just been right through to the Social Security Appeals Authority with my Father (who was lived and worked very hard all of his life in NZ) who is on a half married rate pension (so less than the single pension) from which his overseas partners pension is then deducted from, leaving $290 a week for both of them to somehow live on. AND the SSAA agreed that yes this was unjust, unfair and not what parliament had intended for s (70) of the act – but then , refused to remedy this (by using s (70) 2 which allows room to remedy) because the situation was not “extreme” enough.. I cannot figure how the SSAA determine $31,000 (10 years @ $3,100 a year) is not extreme enough to a couple who are trying to live on $290 a week..

  4. Marc says:

    I am familiar with such stories, it makes me throw up!

    You can bet also, same as that Christchurch government department supposed to look after earth quake victims, same also as some victims of abuse while in state care, that many beneficiaries who are being investigated, are being observed and checked on by private investigators.

    They are paid for by ALL OF US as tax payers, same as Crown Law are paid by us.

    Yet when people are in the worst possible situations in their lives, the state, e.g. WINZ, does hammer and punish them, while they should be offered fair and reasonable assistance.

    It is a disgrace what goes on in this country, that calls itself so ‘fair’ and ‘equal’ (those promoting it), and supposedly gives ‘everybody a chance’.

    As a matter of fact this state is little different to any other state in the world, I mean OECD member states and beyond, where the state uses every power available, to keep people away from them, when they try to get resolution for their grievances.

    I want to know, what is this new ‘MMP’ government coalition going to do? Are you going to bring back easier access to legal aid for those unable to afford expensive legal advice and representation? Are you going to reverse the hideous welfare ‘reform’ changes the last government brought in in 2013? Are you going to create a new system that offers more fairness and that listens to the people, or are you finding every excuse under the sun, why you cannot turn back the wheel and are ‘stuck’ with the law that now exists???

    Jacinda, Winston and James, we are waiting for answers, now.

  5. Marc says:

    Let’s face it, after decades of neoliberal ‘reforms’, loosening up restrictions on the employment and other markets, this country has become more primitive again, backward in a way.

    We even have a return to child labour now, another symptom of a failed society.

    People are denied benefits, benefits are insufficient to live from and any job is ‘good enough’ for WINZ case managers.

    You will though end up competing with immigrants desperate to get any job and to get PR, and even their kids:
    https://nzsocialjusticeblog2013.wordpress.com/2018/03/13/child-labour-in-new-zealand-not-only-a-thing-of-the-past-although-not-widespread-alive-and-well-in-nz-in-2018-special-post/

    • Marc says:

      Nobody seems to care about migrant kids being exploited, as it does not fit the political narrative of this government and some activists, what a shame.

  6. Cag says:

    Would be nice if public servants ditched their devotion to neoliberal propaganda and became – again – servants of the public good.

  7. The Chairman says:

    “Just as Jacinda can improve Niuean pensions overnight, she could abolish the spousal deduction rule immediately.”

    So what’s her stance on the matter then?

    • Susan St John says:

      Good question. We are asking her.
      It is not good for democracy to have such an obvious anomaly uncorrected for decades

    • Z says:

      As it is still before the courts it would be inappropriate for her to comment.

      • Andrea says:

        Well, that’s the usual response: we’ve heard it for years, and yet – it’s an inappropriate response because there are many other ‘cases’ that are not before any court.

        And it would be jusy great if they cleaned up the legislation and the regulations and all the other nit-picking stuff – and required that these gravy trains on a loop track were halted forthwith with the victims of Kafka’s ‘The Trial’ recompensed and set free.

        Now, if the Crown could only afford to spend the same as a complainant, and had to settle or pay a hefty discouragement, we tax payers (which includes every single beneficiary in this country) could at last feel justice was blind, fair and even-handed instead of rigged for the deepest pockets.

        PS I’m not holding my breath for Labour to fix this. They never ever reversed Ruth Richardson’s scrimping, even when times were better. Different flock; same tar.

    • Cassie says:

      THE CHAIRMAN : YOU ARE RIGHT OF COURSE.

      IT just goes to PROVE that what is termed as” Prime Minister” today, is NOTHING MORE THAN an already pre – planned Figurehead of… a Business Corporation.

      NZ Government is merely a Corporation. A Business entity. $$$

      (NOTICE HOW “NZ NEWS Media ” OMITTED to tell the PUBLIC , that the picture / Rules of the Game changed. LONG AGO..

      Yes NZME (and notice how they’ve amalgamated, and gathered up ALL local papers also )…Another Business Entity / spokesperson for Govt Corporation

      **************************

      DO NOT EXPECT “NZ GOVT” (with squiggly line underneath, =business Logo.).to address any REAL HUMAN Concerns.
      They will pretend to , via double talk , deceptive marketing speech, as well as
      have the PM going along to BBQs ,etc (Frivolous stuff which seems to work for the shallow minded)

      BUT NOTHING WILL IMPROVE, in the long run.

  8. Michelle says:

    Gee give her time she has so much mess to fix she was there (on the islands) the policy was introduced what are our priorities here do you have somewhere to live mr chairman cause many don’t.
    The vultures are circling the islands giving them loans they probably cant afford to pay back.

    • Sam Sam says:

      No, no. This mess will do me. As Prime Minister you don’t get to fall short. Jacinda is the Alpha and omega, there fore the 9th floor must be a force to be reckoned with.

  9. Z says:

    This article has significant bias and in this instance (sorry to say as I admire your work) is badly informed.

    For a start Niueans are NZ citizens. It is ridiculous to expect they have to move into NZ itself to get their pension, which was why the changes were put forward.

    Their pension is the same as our pension including bizzare rules regarding overseas spousal pensions.

    I also take issue with your statement that suggests the review system for MSD is unfair. Yes, there are some injustices, but to suggest beneficiaries have almost no chance implies barriers that simply do not exist and are not supported by statistics.

    You are unlikely to win on the papers, ie if you don’t show up in person to put your case forward, but this is true of all legal proceedings.

    • Leigh says:

      Well we certainly showed up to our SSAA hearing and they agreed all the way through that there was an injustice and unfair application and that it should be addressed but in our case refused to use s (70) 2 which had been used in the past to do so, because they it was ruled not extreme enough.. Try taking $30k out of their pension and see of they think it is not extreme enough..

  10. countryboy says:

    Oh, for fucks sake.
    Look. The problem is only 52 k people derive our foreign exchange earning money from their enterprises.
    That’s right. Fifty two thousand people ‘make’ the things which are then sold to foreign buyers in return for the money we spend. How many fucking words is that? That’s twenty one words written by an average joe explaining the ever deepening shit we sink in to.
    The weird, mind-fuck reality is that it’d be better to let our farmers go for it and just pay the rest of you from those taxes to stay warm and cosy at home. It’d be cheaper in the long run! I know? Mad!
    While old people finger their coins as they huddle to kitty from warmth and snuggles the four foreign trading banks suck out our funds… but that’s ok! That’s great! Wonderful banks! An’ that.
    But mention a dirty old farmer and every oik and suit pulls out their shootin’ irons.
    The real reason why you’re shivering and confused as you wring your hankies in your dotage is because you’re stupid, lazy and gutless.

  11. Susan says:

    Isnt that the point- their treatment (Nuiean pensioners) was ridiculous. It was solved by political decree not court time.
    The spousal deduction is ridiculous too and it cant be solved by the processes people are supposed to go through.
    I wish the HR case a good solution of course– but immediate action is called for and a new government is the one to do it

  12. Marc says:

    NZ is a joke, so is this government, and Susan St John is a joke also, as she can go on about this, but she well knows nothing is going to change, even with her connections to Catriona Mc Lennan and QC Joychild. They are minority, the establishment does not give a crap, and will all continue as usual, I know, as I have been trhough it, this total BS country we have, total BS.