Home | Databases | WorldLII | Search | Feedback Social Security Appeal Authority of New Zealand

An appeal against a decision of the Benefits Review Committee [2008] NZSSAA 47 (4 August 2008)

Last Updated: 28 October 2008

Decision No. 47/08

Reference No. SSA 008/08

IN THE MATTER of the Social Security Act 1964

AND

IN THE MATTER of an appeal by **** **** of **** against a decision of a Benefits Review Committee

BEFORE THE SOCIAL SECURITY APPEAL AUTHORITY

Ms M Wallace - Chairperson
Ms P McKelvey - Member

DECISION ON THE PAPERS

Introduction

[1] The appellant appeals against a decision of the Chief Executive upheld by a Benefits Review Committee to establish and recover overpayments of Unemployment Benefit, Accommodation Supplement and Special Needs Grants totalling $78,471.07 paid to the appellant in respect of the period 21 June 1995 to 31 August 2003 on the basis that the appellant was living in a relationship in the nature of marriage with ****** during this period.

Background

[2] The appellant lodged an appeal with the Authority on 29 January 2008 in respect of a decision of a Benefits Review Committee made on 22 November 2004. He requested that the time for lodging an appeal be extended.

[3] We understand that the overpayment in this case was established following a determination by the Chief Executive that the appellant had been living in a relationship in the nature of marriage with ****** in the period ** June 1995 to ** August 2003.

[4] On 14 June 2004 the appellant pleaded guilty to one charge that:

"Between ** June 1995 to ** September 2003 at **** he wilfully omitted to advise an officer that he was living in a relationship in the nature of marriage with ****** for the purpose of misleading an officer concerned in the administration of the Social Security Act 1964 which resulted in receiving or continuing to receive a benefit under the Social Security Act 1964 namely Unemployment Benefit and Accommodation Supplement."

[5] The appellant entered a plea of guilty to this charge and was convicted and sentenced to imprisonment for 10 months.

[6] At the Benefits Review Committee hearing the Ministry's solicitor submitted that the principle of res judicata applied in this case and that as the appellant had previously pleaded guilty to the charge laid under the Social Security Act 1964 in a criminal Court the Ministry did not now have to prove the period of the offence and the amount of the benefit debt to the Benefits Review Committee as it was accepted by the appellant when he pleaded guilty.

[7] The Benefits Review Committee concluded:

"the Committee accepts that it does not have jurisdiction to hear Mr ****' review. Therefore the Committee cannot make any determination in respect of the issue and declines to hear the review."

[8] The appellant then appealed to this Authority.

Case for the Ministry

[9] The Ministry submits that the Authority does not have jurisdiction to hear an appeal from the appellant on the issue of whether he was living in a relationship in the nature of marriage during the relevant period as this issue has previously been determined in the criminal proceedings.

[10] The appellant was represented by counsel in the prosecution in the criminal Court. He did not appeal his conviction in the criminal Court and he appears to have had legal advice prior to entering a guilty plea.

[11] Further the Ministry submit that the amount of the overpayment has been correctly established. The Ministry concedes that the appellant has a right to review the issue of whether or not the debt should be recovered. The Ministry submits that there is no basis under s.86(9A) of the Social Security Act 1964 or s.86(1) to direct that the debt should not be recovered.

Case for the Appellant

[12] The appellant submits that the offence he was charged with states that some time between 1994 and 2003 he wilfully omitted to advise the then Department that he was living in a relationship in the nature of marriage, not that he was living in a relationship in the nature of marriage throughout that period.

[13] He applied for a review of decision on 8 September 2003 and was advised that the review would be deferred until after the Court case. At no time was he told that it would be unlikely that a Benefits Review Committee would hear the case.

[14] He was not permitted to present any submissions to the Benefits Review Committee when it met on 16 November 2004.

[15] The doctrine of res judicata does not apply in this case. He points out that if a person is charged with an assault "between Friday and Sunday" this does not mean that the assault continued for three days, but occurred some time between those days.

[16] The appellant questions the accuracy of the Ministry's calculations.

[17] The appellant says that during the time in question he kept his case manager informed of his living circumstances. Her response was that they were more concerned with helping him find work. The appellant said that he pleaded guilty to the charge believing that the Department would still look at the debt in a fresh light and were aware that he disputed the amount and the time involved. The appellant notes that he has sought redress through a number of different avenues and has only recently been directed to the Social Security Appeal Authority.

Our Findings

[18] Section 12K(1A) of the Social Security Act 1964 provides that an appeal to the Authority must be lodged within three months of a Benefits Review Committee decision or such further time as the Authority may allow.

[19] The first issue that arises in this case is whether the Authority should extend the time for the appellant to lodge his appeal. In this regard we note that the debt was originally established in 2003 and a Benefits Review Committee considered the matter in November 2004. The appellant did not lodge an appeal with this Authority until 29 January 2008. In effect there has been a delay of three years in lodging the appeal.

[20] In considering whether or not we should extend the time for lodging this appeal we must consider firstly the reasons for the delay and secondly the appellant's prospects of success.

[21] Considering the reasons for the delay we note that when the appellant was advised of the Benefits Review Committee decision on 22 November 2004 he was incorrectly advised that there was no right of appeal in relation to this matter. That was patently incorrect. As a result the appellant advises that he sought assistance from other bodies including the ********* office, his local MP and the Disputes Tribunal. We have no precise information about the period over which these contacts were made.

[22] The second issue is the appellant's prospects of success. The Ministry submits that the issue of whether or not the appellant was living in a relationship in the nature of marriage in respect of the period ** June 1995 to ** August 2003 has previously been judicially determined in proceedings in which the parties were the same and the issue was the same. It is submitted therefore that the principle of res judicata prevents the Authority from re-examining this particular issue. The appellant argues that the principle of res judicata does not apply in this case because the use of the word "between" ** June 1995 and ** August 2003 does not necessarily mean that he was living in a relationship in the nature of marriage throughout that particular period.

[23] We have reviewed the certified copy of entry of a criminal record in this particular case. It could be argued that the appellant pleaded guilty to failing to advise the Ministry during this period that he was living in a relationship in the nature of marriage at some point during this period and that the timeframe relates to the wilful failure to advise and not the state of living in a relationship in the nature of marriage. However as was noted by the High Court in The Chief Executive of the Ministry of Social Development v Batt [2004] NZAR 180 at paragraph 21:

"A timeframe specified in any charge is an important element to requiring such proof. In this case the timeframe stated in the two charges of wilful omission were between 1 January 1985 and 14 June 1988 and between 15 June 1988 and 19 July 1988 respectively. These timeframes were not representative: that is the charges did not simply rely on proof that an event (a relationship in the nature of marriage) had occurred at some stage during the time period specified in the charges. Rather, the timeframe specified in the charges was comprehensive and concerned an ongoing state of affairs between the dates specified. And whilst the offence has concerned an omission, that omission was not simply confined to the making of a statement without proof that the contents of the statement were untrue: the omission alleged was a continuing one which encompassed the entire period that the parties were living in a relationship in the nature of marriage. The existence of the relationship, and the continuation of the omission during the period 1 January 1985 to 19 July 1988 were necessary elements of the charges which the Crown had to prove to the jury's satisfaction."

[24] The charge in this case is framed in a similar fashion to the charges in Batt. We think that it is implicit that the dates specified the period during which the appellant was living in a relationship. If the appellant had not been living in a relationship throughout that period then it would have been open to his lawyer to discuss an amended period with the prosecution at the time. The period covered by the charge would have been of significance in sentencing.

[25] The appellant was represented by counsel in the criminal proceedings. He initially pleaded "not guilty". We understand he changed his plea following disclosure of the case against him and a change in the dates specified in the charge. The original charge covered the period 11 November 1994 to 1 September 2003. This was reduced to the period 21 June 1995 to 1 September 2003. This makes it clear that both the appellant and his lawyer were conscious of the importance of the dates covered by the charge.

[26] An exception to the principle that an issue estoppel arises is outlined in Link Technology 2000 Ltd v Attorney-General [2005] 1 NZLR 1. This exception arises where further material which is relevant to the matter at issue could not be adduced at the time of the criminal prosecution becomes available.

[27] The appellant has not suggested that there is any evidence relating to his relationship which could not have been adduced at the hearing of the criminal charge. We are satisfied that an issue estoppel arises in this case.

[28] We are of the view that it would be an abuse of process to allow the appellant to relitigate the issue of whether or not he was living in a relationship in the nature of marriage during the period covered by the criminal charge namely 21 June 1995 to 1 September 2003. We are not therefore prepared to extend time for an appeal to be lodged in relation to this issue.

[29] The other issues raised by the appeal are whether or not the amount of the overpayment has been correctly calculated and whether or not it should be recovered.

[30] The Benefits Review Committee appears to have erroneously concluded that it did not have jurisdiction to consider the appellant's request for review. This was incorrect. By characterising the issue estoppel that arose as an issue of jurisdiction the Benefits Review Committee has overlooked its obligation to consider whether or not the amount of the overpayment was correctly calculated and whether or not the debt should be recovered under ss.86(9A) and 86(1) of the Social Security Act 1964. In effect the Benefits Review Committee has had an opportunity to consider these issues and has erroneously failed to consider them.

[31] In view of the failure to advise the appellant of his rights of appeal to this Authority and the failure of the Benefits Review Committee to consider these issues we are prepared to extend the time for the appellant to file an appeal in relation to these issues.

[32] However the Authority repeats that it would be an abuse of process to consider further evidence on the issue of whether or not the appellant was living in relationship in the nature of marriage during the relevant period. The appeal hearing will therefore be limited to the issues of whether or not the overpayment has been correctly calculated and whether or not it should be recovered.

[33] In the circumstances a hearing on these issues it to be arranged.

DATED at WELLINGTON this 4th day of August 2008

______________________________
Ms M Wallace
Chairperson

______________________________
P McKelvey
Member

SSA 008-08.doc(aw)