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Social Assistance (Living Alone Payments) Amendment Bill (Consistent) (Section 19(1)) [2010] NZBORARp 75 (21 October 2010)

Last Updated: 11 May 2020

Social Assistance (Living Alone Payments) Amendment Bill

21 October 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: SOCIAL ASSISTANCE (LIVING ALONE PAYMENTS) AMENDMENT BILL

1. We have considered whether the Social Assistance (Living Alone Payments) Amendment Bill (PCO 14731/5.1) (‘the Bill’) is consistent with the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on Thursday, 28

October 2010.

2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act.

In reaching that conclusion, we have considered potential issues of inconsistency with s 19(1) (right to freedom from discrimination) of that Act. Our analysis is set out below.

PURPOSE OF THE BILL

3. The Bill amends the New Zealand Superannuation and Retirement Income Act 2001 (‘NZS Act’) and the War Pensions Act 1954 (‘WP Act’), as well as making consequential amendments to other Acts.

4. The Bill seeks to ensure that single superannuitants and veteran pensioners who are living alone do not have to make a separate application to receive their full entitlement. It does so by replacing the living alone payment supplementary benefit (LAP) and the current rates of New Zealand superannuation and veteran’s pension (NZS/VP) with a new single living alone and a new single sharing rate of NZS/VP. This measure will not result in a change to the total amount of the existing entitlements.

5. To ensure consistency across the social assistance system, the Bill aligns the

definition of ‘dependent child’ in the NZS Act and Part 6 of the WP Act, with the

definition used in s 63A Social Security Act 1964 and s MC 9 Income Tax Act 2007.

6. The Bill also updates the reference to a licensed boarding house to reflect the new definition of that term in s 66B of the Residential Tenancies Act 1986 (to be inserted by s 49 of the Residential Tenancies Amendment Act 2010).

CONSISTENCY WITH SECTION 19(1) OF THE BILL OF RIGHTS ACT

7. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. The grounds of discrimination under the Human Rights Act include (among others) age and family status.

8. Drawing on the New Zealand case law on discrimination, we consider that the key questions in assessing whether there is a limit on the right to freedom from discrimination are: [1]

• does the distinction involve disadvantage to one or more classes of individuals?

In determining if a distinction arises, consideration is given to whether the legislation proposes that two comparable groups of people be treated differently on one or more of the prohibited grounds of discrimination. [2] The distinction analysis takes a purposive and

untechnical approach to avoid artificially ruling out discrimination. [3] Once a distinction on prohibited grounds is identified, the question of whether disadvantage arises is a factual determination. [4]

Clauses 5 and 18

The Bill provides for two different rates for single persons [5] receiving New Zealand

superannuation or a veteran’s pension under, respectively, the NZS Act and the WP Act:

• a single living alone rate of $373.56 a week, and

• a single sharing accommodation of $342.58 a week.

Clause 5 inserts new s 4A in the NZS Act and cl 18 inserts new s 67A in the WP Act. Under these provisions, a single person can receive the new single living alone rate of NZS/VP when he or she:

• occupies a principal place of residence, and

• a temporary visitor who stays in the person’s residence for less than

13 weeks in any period of 26 weeks.

Clause 6 repeals ss 13 and 14 of the NZS Act, and cl 23 repeals ss 74U and 74V of the WP Act. The repealed provisions contain the current requirements for entitlement to the LAP.

New ss 4A and 67A result in a change of entitlement because currently a single superannuitant or veteran pensioner will receive the LAP when he or she shares his or her residence with a dependent child of 18 years or older. Under the Bill, an entitlement to the equivalent single living alone rate of NZS/VP no longer exists in this situation (except for a brief period if the 18 year old child is not financially independent and attending a school or a tertiary educational establishment).

Age


• The Ministry of Social Development is only aware of one case where a recipient of

NZS is receiving the LAP and has a dependent student child aged over the age of 18 years living with them. In this case the student child did not qualify for the student allowance under the Student Allowances Regulations 1998 because the combined income of the recipient of NZS and his ex wife was too high. This particular recipient’s entitlement to the LAP will be protected by the savings provision in cl 14 of the Bill (as long as applicable criteria are met). [8] However, we note that normally in circumstances where a child living with a recipient of NZS/VP – who is divorced from his or her ex partner – does not qualify for a student allowance because of the level of the combined income of his parents, this child can be expected to receive financial support from the other parent. [9]

• We, therefore, conclude that the distinction on the ground of age in new s 4A NZS

Act and s 67A WP Act does not result in a disadvantage and, therefore, does not limit the right to freedom from discrimination in s 19(1) of the Bill of Rights Act.

Family status


• Under s 21(1)(l) of the Human Rights Act 1993 the term ‘family status’ means:

o having no responsibility for the care of children or other dependants, or

o being a relative of a particular person.

of family status will also capture those persons with responsibility for the day-to-day care of, for example, disabled children and other dependants that are aged 18 years or older.

• The Bill of Rights Act, however, protects against both direct discrimination – where a

law, rule or practice uses the prohibited ground as the basis upon which to differentiate between two groups – and indirect discrimination – where a law, rule or practice is neutral on its face but has a disproportionate impact on a particular class of persons because of their special characteristics. [11]

• This effect is disadvantageous because the single superannuitant or veteran

pensioner, who lives with a dependent person of 18 years or older will receive superannuation or a veteran’s pension at the lower single sharing accommodation rate, not the higher single living alone rate. In our view, however, this disadvantage is not disproportionate as it is offset by the fact that the dependent person of or over the age of 18 living with the superannuitant or pensioner is likely to be entitled to a social security benefit or student allowance (see above paras. 16 and 17). [12]

• We, therefore, conclude that the distinction on the ground of family status following

from the requirement in new s 4A NZS Act and s 67A WP Act does not – overall –limit the right to freedom from discrimination in s 19(1) of the Bill of Rights Act.

Family status – the exception applicable to some 18 year olds


or a tertiary educational establishment), the superannuitant or pensioner is still entitled to the single living alone rate of NZS/VP. This exception applies until the close of 31 December in the year in which the child turns 18. A similar exception does not exist for a superannuitant or pensioner living with an 18 year old who is not a dependent child or is financially independent.

treat the 18 year old children of single superannuitants or veteran pensioners differently.

• A single superannuitant or veteran pensioner living with an 18 year old who is not a

dependent child and/or is financially independent is only entitled to superannuation or a veteran’s pension at the lower single sharing accommodation rate and not the higher single living alone rate. The distinction on the ground of family status, therefore, results in disadvantage. As with the indirect discrimination discussed above, we consider that this disadvantage is offset by the fact that an 18 year old who is not a dependent child and/or who is financially independent will have some form of income.

• Again, we conclude that the distinction on the ground of family status in new s

4A(4)(a)(ii) NZS Act and s 67A(4)(a)(ii) WP Act does not – overall – limit the right to freedom from discrimination in s 19(1) of the Bill of Rights Act.

CONCLUSION

We have concluded that the Bill does not appear to be inconsistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Footnotes:

1. See, for example, Atkinson v Minister of Health and others [2010] NZHRRT 1; McAlister v Air New Zealand [2009] NZSC 78; and Child Poverty Action Group v Attorney-General [2008] NZHRRT 31.

2. Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523 (CA) at [573] per Tipping J (dissenting)

relied on in Atkinson v Minister of Health and others [2010] NZHRRT 1 at [199]; McAlister v Air New Zealand [2009] NZSC 78 at [34] per Elias CJ, Blanchard and Wilson JJ and at [51] per Tipping J; and Child Poverty Action Group v Attorney- General [2008] NZHRRT 31 at [137].

3. Atkinson v Minister of Health and others [2010] NZHRRT 1 at [211]- [212]; McAlister v Air New Zealand [2009] NZSC 78 at [51] per Tipping J; and Child Poverty Action Group v Attorney-General [2008] NZHRRT 31 at [137].

4. See for example Child Poverty Action Group v Attorney-General [2008] NZHRRT 31 at [179]; and McAlister v Air New Zealand [2009] NZSC 78 at [40] per Elias CJ, Blanchard and Wilson JJ.

5. Any person who is not in long-term residential care and who has a spouse or partner in long-term residential care in a hospital or rest home, is entitled to the single living alone rate of NZS/VP (see ss 17 and 18 of the NZS Act and s 74BA of the WP Act, as amended by cls 8 and 19). We note from the outset that, because the Bill does not affect the rate of NZS/VP for a person who is married, in a civil union or in a de facto relationship, there is no distinction between superannuitants and veteran

pensioners on the ground of marital status.

6. With the exception of the persons covered by new s 4A(4) or (5) NZS Act and new s

67A(4) or (5) WP Act, see paragraph 27.

7. See, for example, ss 54(2) and 89(2) of the Social Security Act 1964 (sickness benefit and unemployment benefit) and r 7(1) Student Allowances Regulations 1998. Under certain special circumstances, 16 and 17 year olds may also qualify for some

benefits.

8. Clause 14 of the Bill provides for a savings provision for persons receiving the LAP under s 13 of the principal Act immediately before the commencement of this section on the basis of the Social Security Appeal Authority’s decision [2009] NZSSAA

38 (19 June 2009) if, and as long as, there is no change in the person’s circumstances affecting the person’s entitlement to the LAP. The recipient referred to by MSD was the appellant in the SSAA decision.

9. If the parents of a student are not living together and the student can establish independence from the parent he is not living with (for example, in case of estrangement), he or she can make an application to have the income tested portion of a basic grant assessed on 1 parental income (r 4 Student Allowances Regulations

1998).

10. With the exception of the persons covered by new s 4A(4) or (5) NZS Act and new s

67A(4) or (5) WP Act, see paragraph 27.

11. Butler and Butler, The New Zealand Bill of Rights Act: A Commentary (2005) at 502.

See generally S Mize, “Indirect Discrimination Reconsidered” (2007) NZL Rev 27.

12. Or can be expected to receive financial support from the parent he or she is not living with, in the situation described in paragraph 17.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Social Assistance (Living Alone Payments) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the

Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.


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