Why am I so uneasy at the beginning of 2019? After all, isn’t it supposed to be Labour’s “year of delivery”?
A few years ago, I went to see ‘The Trial’ by Kafka. The audience was forced to walk from room to room trapped in a bureaucratic, persecutory nightmare. Finally, we ended up in a dark room full of smoke and barbed wire. I heard the inevitable gunshot with a sense of relief; now we could all go home. Kafka created so well an aftertaste of utter pointlessness and unredeemed frustration with the unrelenting irrationality of state behaviour.
Individuals arguing their case for justice have been caught up in Kafkaesque-like experiences at WINZ, MSD, ACC and IRD, where unresponsive officials impose anachronistic rules and laws made for a different time and era. For those who don’t cave in at this point, there may be appeals to the Benefit Review Committee, the Social Security Appeals Authority, and then the daunting prospect of higher courts. Some disappear for years in the labyrinth of the Office of Human Rights Proceedings (OHRP) and the Human Rights Review tribunal (HRRT). While getting to a hearing in the HRRT can take years, after the hearing an actual decision can take many more years and even then, a finding of unlawful discrimination does not bind the Crown to reform the laws.
As the years drag by, the people affected lose their faith in truthfulness and rationality. They see their savings run down and with the unrelenting fight, they become sick and too often, may die without any resolution. Like the irrationality of the worst Kafka play, the state can wilfully withhold for years, even decades, the power to correct the things that are obviously and incontrovertibly wrong. That can’t be good for democracy.
Over the years I have followed or been involved with many such cases where issues have been unresolved for decades. Here are five:
Kathryn’s story outlines how Kathryn, after a shocking life of abuse and trauma, dobbed in by a vindictive ex-partner, was imprisoned for the so-called crime of relationship fraud. Her children’s lives were devastated and her health lost. She is now a seriously ill beneficiary after fighting MSD for 17 years in the courts : they insisted that on release from prison she must repay $115,000 out of her meagre benefit. MSD spent hundreds of thousands of dollars fighting the case to prevent the debt being wiped. In 2019, the debt still hangs over her and is used against her when she needs to argue for hardship assistance from Work and Income. When she dies it will deplete her tiny estate, ensuring that her five children will get nothing. Government could wipe the debt tomorrow but has turned the other way.
And then there was Ms F who was investigated after an ex-partner vindictively dobbed her in, alleging she was not declaring income. This entailed an eight-year battle in the courts for her to establish the bleeding obvious, that loans are not income and she should not have a $127,000 debt. This landmark case has not resulted in a wide investigation of injustices for other beneficiaries who have been treated similarly, or any assurance that the state is even interested in clarifying the legislation. Nor has the nasty practice of encouraging dobbing in, especially when by ex-partners been denounced. So much for the politics of kindness!
Then there is the CPAG legal case against discrimination in Working for Families begun in 2002, and finally heard in the HRRT after 6 years of fighting to establish the right to take the case. In the 2008 decision the judge found the IWTC to be discriminatory but let the government off the hook with weak arguments about justification. After various appeals, an inadequate ruling from the Court of Appeal saw CPAG take the issue into the court of public opinion rather than continue the expensive battle with the same narrow legal setting up to the Supreme Court. By 2019, the discrimination had cost the worst-off families in New Zealand an accumulated sum approaching $8-10 billion. Is it surprising that child poverty is so entrenched?
The CPAG case proceedings played a big part in keeping child poverty on the public and political agenda. In the 2011 elections four opposition parties, including Labour, had a policy to remove the In Work Tax Credit discrimination against income tested beneficiary parents. Labour has not talked about it since, except to shunt a review of Working for Families off to the Working Expert Advisory Group. Ultimately the removal of this discrimination is inevitable, because it is blindingly obvious that this will provide a very cost-effective way to help meet Government’s child poverty reduction targets, but the harm to children of years of neglect by politicians cannot be readily forgiven.
In March 2018, a number of superannuitants affected by the spousal provision of section 70 of the Social Security Act finally had their week in the HRRT. But the decision from the HRRT could be another two years away and even if it finds for the plaintiffs, nothing will happen without government action. Groups like Retirement Policy Research Centre and the Retirement Commissioner have complained about this outright discrimination in the public arena for the past decade. Privately the politicians agree. In 2015 Jacinda denounced it and described it in parliament as a human rights violation. In early 2018 action was promised, there was supposed to be a review from MSD and an announcement in November- then there was talk of a cabinet paper in December, but not a whisper by early February 2019. Nearly two decades of inaction.
The latest outrage, the case of Maree Hennessy, a parent on her own with two young children, further illustrates the neo liberal obfuscation and the impotency of the HRRT. She had few resources and had been supplementing her benefit with a small part time job. She had an accident in 2000 that forced her to stop work completely in 2002. That meant she should have been entitled to some earnings-related compensation. After a long 8 years battle with ACC, she was awarded a gross amount of $89,000 in backdated weekly compensation, which after being treated as income and her benefit abated should have given her $40,000 or $5,000 for each of these 8 years. Except that she wasn’t given this at all, but only a token $576 or just over a $72 for each year, as her ACC was deducted dollar for dollar from her benefit because of a wrongheaded principle that says you can’t have benefits from both Work and Income and ACC.
It took five years for Maree’s case to be heard in the HRRT. The decision, finally delivered recently is a declaration that this is indeed unlawful discrimination. But after nearly two decades since the accident, in 2019 she will still get nothing because: “But the government department can’t stop enforcing the law until the wording of the Social Security Act is changed.” At least the Government conceded the case avoiding further court appeals but in the meantime her dollar for dollar abatement has “caused years of severe financial strain for her and her family.” Greg Robins, a senior solicitor at the Office of Human Rights Proceedings claimed it was an important landmark decision: “It is disappointing that the abatement can’t be reversed, but we are pleased she has won a clear declaration about the Social Security Act 1964 and the law that replaced it, the Social Security Act 2018.”
That is sweet comfort for Maree. MSD’s deputy chief executive of service delivery, Viv Rickard, said “For those of our clients who are receiving income support from us and compensation from ACC, we are unable to make any change in practice despite the tribunal’s finding…. The Minister has been advised of the situation and tabled a report in the House on this issue on 20 December 2018. MSD will provide further advice to the Minister as required.”
Further advice, oh please! And surely not from the MSD who have argued in many of the cases discussed here for all the archaic features of the SSA as if they were ordained and set in stone. Clear and immediate decisions with adequate recompense are required forthwith.