MUST READ GUEST BLOG: A heartfelt letter penned by “Ms F” after her win against MSD

By   /   July 5, 2018  /   22 Comments

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In a breakthrough decision yesterday, the High Court determined that loans could not be counted as income for social security purposes – a huge victory for Ms F. But the years and the overwhelming stress she experienced cannot be taken back. These are her words:

Through eight hard years, a sole mother pleaded her case against the Ministry of Social Development (MSD), who argued that because she took out loans in the form bank loans, credit cards and family loans to pay for needed home repairs and to support herself and her children, she should have to repay more than $120,000 of her benefit.  She explained that she needed to borrow because she could not pay her bills while living on the benefit. The loaned money had all been repaid in the years since it was borrowed, but it was called ‘overpayments’ by the MSD. In a breakthrough decision yesterday, the High Court determined that loans could not be counted as income for social security purposes – a huge victory for Ms F. But the years and the overwhelming stress she experienced cannot be taken back. These are her words:

I take great heart in knowing that this decision upholds the rights and dignity of low income people in New Zealand; for all the sole mums out there doing their best to care for their children and themselves, to those receiving disability or sickness support, to the families struggling to make ends meet receiving working for families, to all the people like us – you and me – who face the daily battle of justifying their very existence to Work and Income (WINZ), who have to manage with disparate abatements and bare the weight, or fear of, unjust and often unfounded claims of overpayment by WINZ and MSD – this ones for you.

Needing government assistance shouldn’t undermine the right of New Zealanders to be treated like their fellow citizens.  It is fundamentally discriminatory practice to try to implement and/or uphold existing policies that mandate one rule for beneficiary citizens and one rule for non-beneficiary citizens – this is unacceptable and authorities need to be held to account. This appeal highlights the prejudicial nature of MSD’s intentions; at it’s core, the very body governing our most vulnerable citizens, fought to usurp the fundamental rights of those in their care. That the MSD sought to uphold such unjust behaviour (despite being told over 20 years ago this behaviour was illegal) is testament to the dire need not only to overhaul the Social Security Act but underpin MSD practice and policy with regulatory oversight that champions the democratic rights of those eligible for government assistance.

The High Court was my first opportunity to have an impartial judge and fair hearing; my first experience of being treated fairly and it took over eight years to find justice. This appeal and the journey here reveals the innate injustice beneficiaries face when trying to access transparent and impartial dispute resolution. Disparate and unclear policy and practice underpins decision making processes that adversely affect the lives of beneficiaries and their families.  Decisions made and implemented by WINZ and MSD staff are determined within a framework of biased beliefs and processes bereft of appropriate oversight, which are then reaffirmed in Benefit Review Committees (BRC) and under the Social Security Appeal Authority (SSAA).

Intrinsically held negative beliefs about beneficiaries are reinforced through systems and structures operating outside of law that safeguards the rights of non-beneficiary citizens. Policy, opinion and decisions are reified through an unchecked process of confirmation bias literally silencing evidence or information counter to the bias narrative.

It has taken hundreds if not thousands of hours, eight and a half years of mine and my families life, grave impact our mental and physical health and wellbeing not to mention substantial debt and financial loss to get here today. I made a choice to follow this through not just because it seemed unfathomable to me that WINZ could say I earned income where I earned none at all; I chose to do this because of the thousands of people who do not have the time, energy, will, resources, education, or self determination to even begin to question decisions made by the MSD; determinations that lock them into cycles of debt and deprivation; decisions that go unchecked both in their veracity but also in their impact. As it was it took me three and a half years just to gain clarity from WINZ how they determined my so called ‘income’ and eight years to finally have a judge willing and open to listen to both sides of the story.

MSD refused to represent my financial statements accurately, even though they are legally charged to do so, meaning I had to act as my own accountant, creating a balanced comprehensive income style statement of five years worth of bank transactions that were made over a decade ago. Any evidence I provided was used against me or dismissed entirely. The SSAA decision made a mockery of my life experiences and the truth shared within three SSAA hearings held over a year and a half of my life.  This experience broke me on so many levels.  I’ve learned so much along the way and at each step I have held the hands of my sisters and brothers for strength and in solidarity.  Although I know the road is not over for me yet I feel so blessed to have experienced both sides of the law – one that is based upon democratic principles of justice; accountability, just and transparent laws, fairness and accessible and impartial dispute resolution – and one that is heavy set with prejudice and without oversight for those charged with responsibility for the most vulnerable in our society. Witnessing this duality first hand has given me hope – hope that we can and will change the complex systems of injustice embedded within the institutional structures governing our social services AND honour with dignity the lived experiences and lives of all New Zealanders.

At first glance it can be hard to measure the true strength of this decision. However I know how significant it is for me and all Kiwis.

In this appeal MSD fought to treat all monies spent by beneficiaries as income for the purposes of benefit entitlement. To make that clear – if I spend $100 over my benefit MSD wanted to call this money income irrespective of where this money was sourced. We know that the source of monies is of paramount importance when determining income for tax purposes. Thats because I may spend $100 but this may come from any myriad of sources such as a credit card, overdraft, bank loan, familial loan, gift payment, insurance payment, or income. This decision makes it illegal for MSD to claim that loaned money from all sources – monies with a genuine obligation to be repaid – is income for the purposes of benefit entitlement. Therefore all abatements to benefits and/or claims of overpayments based upon income determination must not include spending derived from loan sources.

This decision impacts everyone receiving any form of government support.  It’s huge. It also necessitates a commission of inquiry into the past 20 years of overpayment determinations.

In 1997 the MSD was directed not to include loans as income for the purposes of benefit entitlement. In my case, they not only made claims of overpayment based entirely on monies spent from loans (‘deciding’ to recoup five years worth of benefit afforded to me and my children), they sought to affirm this unjust practice in the High Court. There is no way of knowing how many hundreds if not tens of thousands of people have been affected by illegally determined claims of overpayment based on using expenditure as a measure for income determination without accounting for borrowing of loans. 

We must seek justice and transparency for all through a commission of inquiry into claims of overpayment by the MSD. 

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22 Comments

  1. Z says:

    I just wanted to say THANK YOU for what you and FJ have done. Because of the success of this case the tyrants are a little less tyrannical, the options for abusive partners just a little bit less.

    May this be the first chink in the damn.

  2. peterlepaysan says:

    What planet (planet key?) were MSD born on?
    A loan has to be repaid out of income.
    It is nonsense (at best) for a loan to be treated as income. Otherwise it is sheer political malevolence against the defenceless.

    Once again bureaucrats interviewing keyboards to avoid possible embarrassment (real or imaginable) to their political masters.

    Once again we have an example of the politicising of our (repeat OUR) public servants by politicians

    • Nik says:

      So true and utterly obvious you would have expected it to go without saying. I once believed logical sense held currency with these kinds of issues …Either it did, or I was blissfully ignorant to the sociopolitical reality. Either way, I miss believing that.

  3. shelzo says:

    Awesome news, thanks so much for your hard slog against the institution of social services for overpayment issues, and also I hope this affects more positive outcomes for those of us who have been underpaid, and their appeals ‘allowed it’ also. Justice and Fairness, now that would be a great aim for a social service.

  4. Michal says:

    Thank you thank you thank you! Somehow someday things must change, people who runs these ‘government departments’ will fall. The punative society that we live in must change. MSD WINZ Dept of corrections, Housing NZ – these should all have the top 20 people removed. You cannot change the culture of these organisations if we don’t get rid of those at the top who have driven the nasty direction they have all moved in.

    • Leaps says:

      A win for common sense. Nowhere else except on a punitive beneficiary planet would a loan ever be considered as income. Crazy interpretation by MSD. They should have to pay costs and damages to Mrs F.

  5. Michelle says:

    The top is the government ministers. What I would like to know was has this behaviour got worse in the last 9 years under the national party or has this been happening for sometime cause when I was on the DPB I use to get 500$ loans regularly from loan sharks and never got penalised but that was over 25 years ago. I’m not happy with MSD costing us tax payers cause of there punitive and power controlling attitude. I think as mentioned in the article this case may have opened a can of worms.

  6. Nik says:

    So true and utterly obvious you would have expected it to go without saying. I once believed logical sense held currency with these kinds of issues …Either it did, or I was blissfully ignorant to the sociopolitical reality. Either way, I miss believing that.

  7. Katie says:

    Thank you from all of us Ms F 🙂

  8. Mjolnir says:

    “There is no way of knowing how many hundreds if not tens of thousands of people have been affected by illegally determined claims of overpayment based on using expenditure as a measure for income determination without accounting for borrowing of loans. ”

    And that, i find truly frightening.

    Good on you Ms F, you are a hero!!

  9. Chris says:

    How can someone on a benefit get $130,000 of loans, she also sold multiple homes for capital gain. Why was she receiving a benefit?

  10. Black Lemming says:

    An incredible journey , a just result and real relief to many many other clients of Winz . Phenomenal courage and very well done.

    The systematic intimidation by Winz ,of those most vulnerable is disgusting.

    • Nick Stone says:

      Read the entire judgment. This person is not “vulnerable “ and lived a lifestyle of the privileged, not the impoverished. While I don’t respect the current culture at MSD and have issues with the prosecution, this person is not atypical of the needy.
      Flipping houses, business ownership, questionable lending practices….those are not opinions. They’re facts from the judgment.

  11. CAG says:
    JULY 3, 2018 AT 7:15 AM
    Again – make ALL senior managers reapply for jobs which have been renamed and dropped to $200 or under – and make it damn clear in the interview what being a public servant means. It is very clear that there is no truth to the ‘we have to pay these salaries or we won’t get the best people’ lie – it only attracts the greedy & aloof.

    I copied this from another topic, I believe it is spot-on. Tks CAG

  12. Danyl Strype says:

    A huge vote of thanks to everyone involved with prosecuting this case against MSD, especially Ms F, your courage and determination not to bow to the bullies is truly inspiring.

    “This decision impacts everyone receiving any form of government support. It’s huge. It also necessitates a commission of inquiry into the past 20 years of overpayment determinations.”

    True, but that’s not all. This is problem that goes back further than 20 years, to the 1990s reforms of the Department of Social Welfare under the National government led by Jim Bolger and Finance Minister Ruth Richardson. Alistair Barry’s documentary ‘In a Land of Plenty’ tells the full story of the creation of a world-leading social safety net, and the shredding of it carried out under the 1990s government by Minister of Social Welfare Jenny Shipley.

    We need a public commission of inquiry into this whole fiasco, the benefit cuts, the systematic exclusion from entitlement, and the poverty, homelessness, malnutrition, chronic disease, mental illness, suicide and violence that it has unleashed on our society. An inquiry in which the voices and stories of beneficiaries – both current and former – can finally be heard and understood. It also needs to be an inquiry that has the power to design a whole new social welfare system, from first principles, designed to protect and lift up the most vulnerable in our society, rather than impoverish and demonize us. Perhaps this High Court decision, and the follow up that I hope will get justice for many more people denied their fair entitlements, could be a first towards making such an inquiry a bottom line for any party that wants our votes in 2020.

  13. Chris says:

    I hope the previous chairperson of the Social Security Appeal Authority, Marilyn Wallace, sees and understands this decision. She was chairperson for 26 years from 1999. Welfare advocates used to avoid taking cases to the Authority while she was the chairperson because it was near guaranteed she’d find for MSD. Settling cases, often with unreasonable compromise, was always better than trying your luck with Marilyn Wallace. You could sense that MSD would at times get annoyed with Marilyn Wallace for going to such lengths to find for MSD that she’d too often open them up to appeal. Reading her decisions you’d be forgiven for thinking that whenever Marilyn Wallace thought that she couldn’t find for MSD by relying on the law she’d simply change the facts by raising fake concerns about the beneficiary’s credibility. Appeals to the High Court are on points of law only so when a beneficiary’s credibility was shot that was it. Beneficiaries have had 26 years of Marilyn Wallace. Her decisions are legendary in beneficiary advocate circles. Here she is here:

    http://www.stuff.co.nz/dominion-post/business/residential-property/8864917/Lawyer-ordered-to-refund-tenants

  14. Jono says:

    Read stuff comments on this case. The commentors crucify Ms F. If a comment supports her its down voted sharply… It shows our media and stuff commenters and very right wing in their views. Comments on Stuff are getting more judgemental and nasty if you don’t go with the status quo.

  15. Jane says:

    She’s amazing. That’s how amazing you have to be to fight them. It’s like Kafka’s “The Trial”. I have an exit option.