~.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT

IN THE fiGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-485-680 [2017] NZHC 711

IN THE MATTER of an appeal by way of case stated from the detennination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security ACe 1964

BETWEEN

AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing: I March 20 17

Appearances: Appellant in person (together with McKenzie Friend) N Anderson for Respondent

Judgment: 11 April 20 17

JUDGMENT OF BREWER J

This judgment W(1S delivered by me on 11 April 2017 at 3.' 3 0 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: CroW11 Law (Wellington) for Respondent Copy to: Appellant in person

TAN v TIffi CHIEF EXECUTIVE OF TIffi MINISTRY OF SOCIAL DEVELOPMENT [201 7] NZHC 71 J [ ll 6.nr; 1 ,n l 7 1

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Introduction

[1 ] Mr.s entitled to New Zealand Superannuation (NZS). He also had funds

in the Q , .. Central Provident Fund (CPF). The Chief Executive of the Ministry

of Social Development required Mr _ to take steps to test his eligibility for a

pension from the CPF. Mr. did not take the steps the Chief Executive wanted

him to take and, on 26 August 2015 , Mr.'s NZS payments were suspended. In

September 2015, MrJIIIL provided a letter from the CPF confirming that he was

entitled to receive $668 per month from the CPF. As a result, his NZS payments

were resumed but the Chief Executive reduced them by the amounts of the CPF

payments. -(./~~___- - - ---­

. [2] Mr. is vehemently of the <iew that the Chief Executive was wrong to

I\~suspend his NZS payments and wrong to later reduce his NZS payments by the sums

he was paid by the CPF. The nub of his argument is that his account with the CPF

was his money, being sums compulsorily deducted from his income when he worked

in Singapore plus compulsory contributions by his employers. Therefore, he argues,

payments he received were simply disbursements of his own money and cannot

lawfully affect his entitlement to NZS.

[3] Mr. took his arguments to a Benefits Review Committee and failed. He

appealed the decision of .the Committee to the Social Security Appeal Authority.

Again, he failed. He then required the Authority to state a case for the decision of

this Court. I Cases stated in this way must be on questions of law. Here, they are:

(a) Did the Authority err in its interpretation of s 70 of the Social Security

Act 1964 in concluding that payments [. -J receives from the

. f I / ) .rgq if e Central Provident Fund should be deducted

[> 2 .] entitlement to New Zealand Superannuation?

from

(b) Did the Authority err in its interpretation of s 69G(4) of the Social

N. I ~ Security Act 1964 in concluding that it was appropriate for the Chief

~(

Social Security Act 1964, S 12Q( 1).

Executive to suspend [Mr~ benefit entitlements in New Zealand

from 26 August 20 15?

Approach to the case stated

[4] My task is to qnswer the questions of law stated by the Authority. In other

words, this is not the exercise by Mr'" of;;a general right of appeal.

[5] A preliminary point is that Mr" does not like the questions of law stated

by the Authority. He wants to change them and, under High Court Rule 2 1.12(2), the

Court has \l:he power to amend the case stated. However, s 12Q( 6) of the Social

Security Act 1964 (the Act) vests in the Chairman of the Authority the power to

settle the case and this Court consistently has held that r 21.1 2(2) cannot be used by

an appellant to recast the questions of law stated so as to best suit the appellant2 III

my view, the power to amend a case stated given by r 2l.12(2) should be used where

the case stated does not adequately set out foe resolution the real disputes at law

between the parties.

[6] Mr _ represents himself and believes passionately in his arguments. 3 He

did not develop his opposition to the questions stated by the Authority in his

submissions to me, but neither did he formally abandon his opposition. Mr "

approach to the appeal was to tell me why he is aggrieved. In doing so, he addressed

the questions stated by the Authority.

[7] Mr-'proposed questions are :

(1) The Authority erred in law under the 1990 Bill of Rights Section 27 by agreeing with the Chief Executive to victimise Singapore Citizens who are permanent residents of New Zealand, while protecting the rights of other nationalities who had collected their CPF savings (Ii~ the thousands of Kiwis who had worked in Singapore, e.g. Mr John Key).

(2) The Authority erred in not protecting my privacy rights under the 1993 Privacy Act which is binding on the Crown (the two Court recordings of 9/3/1 6 and 10/5/1 6 wi ll confirm th is).

Melin v Chie(Executive of the Ministry ofSocial Development [2016] NZHC 1708 at [23J. Some of Mr Tan's arguments are not relevant to the questions stated and are based on emotion. I do not discuss them.

(3) As Singaporeans are the only victims of this unfair ruling of the Chief Executive, and I am the Singaporean victim, I have the right under the 1968 Protection of Personal and Property Rights Act (Section 75 - Right of person to be heard and call evidence) before a High COUli Judge.

[8J I have decided that the questions in the case stated properly encompass the

issues at law between the parties and I will answer them.4

The first question

[9J This question relates to the lawfulness of reducing Mr ....NZS payments

by the amounts he received from the CPF. It comes first because the key point is

whether the CPF payments amount to a benefit, pension, or periodical allowance. If

they do not, then I must find for Mr _ on both questions. If they do, then Mr Tan

question, the lawfulness 0 lef Ex~.cu~ive's action/in suspending Mr ,...N.ZS

payments. ~~.{~~ ~ ~S- /J <-./ I qtlj

[10] The broad principle set out in s 70(1) of the Act is that if a person entitled to

NZS receives also "a benefit, pension, or periodical allowance granted elsewhere

than in New Zealand", then the person's NZS is reduced by the amount .of such

benefit, pension, or periodical allowance. it ,"'--. '1 ~~ ..--t.I

;W ,~--J7/ [1 1] There is another criterion: th~, payments received must be part of a

programme providing (in Mr case) for retirement or old age and the

programme must be administered by or on behalf of the Gove~~4for the country ~ . ,/ ~. <...-rI ~

from which the payments come.) I V 0 .,. f . #'/ dnh f ........~ "v(.rl v.; ~

.r-(~ - ' [12] Mr _ argument is that s 70(1) does not apply to him because the

payments he received from the CPF were not "a benefit, pension, or periodical

allowance". He points to these factors:

For completeness, there is nothing in the Privacy Act point. The Chief Executive was entitled to require Mr Tan to provide details of his CPF entitlements Section 70( I).

(a) He had an account with the e pF. The money in the account was his

own, being the accumulation of compulsory payments by him, plus

compulsory contributions from his employers.

(b) There was no contribution by the Singaporean Government.

(c) Payments to him depleted the account and stopped when it was

exhausted. This is very different to a state-funded, until-death

penSIOn.

(d) Expatriates who have accounts with ePF can close them when they

leave Singapore and use the money for whatever they wish. If they

are New Zealanders, then their entitlement to NZS will not be

affected.

[1 3] Mr _ submits that the ePF is similar to the KiwiSaver scheme. That

scheme is part of a Government programme, the main purpose of which is for

retirement savmgs. However, participation does not affect entitlement to NZS

payments.

[14] The Authority considered Mr '" arguments. It examined the e PF and

concluded that it is a programme put in place by the Government of Singapore for

the support of its citizens. It provides for one or more of the contingencies in the

New Zealand income support programme, including for retirement or old age. It is

administered by or on behalf of the Government of Singapore.

[15] With respect, those conclusions are inescapable. Mr -.comparison of the

ePF with KiwiSaver is flawed, in that the latter is a particular creation of

New Zealand statute. It stands apart from the regime created by s 70 of the Act. In

any event, as the Authority recognised, KiwiSaver is a voluntary scheme, not a

compulsory one.

[16] The main issue under this question is whether the monthly payments Mr_

received from the ePF were "a benefit, pension, or periodical allowance".

[17] The Authority dealt with this issue as follows: 6

[32] The appellant says the payment he receive~ is not a benefit or a pension. Section 70 refers to benefits, pensions and periodical allowances. The payment at issue in this appeal is a payment he is entitled to receive monthly. It is a periodical payment. The New Zealand Oxford Dictionary defines "allowance" as:

1. an amount or sum allowed to a person, esp. regularly for a stated purpose.

[33] The amount received by the appellant is paid periodically and is payable on the appellant attaining a particular age. It is intended by the Singapore Government primarily to replace income on retirement or old age. We are in no doubt the payment the appellant receives constitutes a periodical allowance.

[34] In addition, the New Zealand Oxford Dictionary defines "pension" as:

1. a regular payment made by a government to people above a specified age, to widows or to the disabled.

The payments made to the appellant also readily fall within a conunonly understood meaning of "pension".

[18] In my view, the Authority is correct. Mra's monthly payments were made

at an amount and frequency determined by Singaporean law regulating the CPF. It

was certainly a periodicaJ allowance. Whether the payments amount to a pension is

more problematic. The payments were made by (or on behalf of) the Government of

Singapore, but not from funds contributed by the public generally. Nevertheless, 1

characterise the payments as a pension. They came from money collected by the

Government compulsorily fro m Mr ~ and his employers. They were held by the

Government in the CPF for defined purposes and disbursed incrementally by the

CPF to Mr Tan for one of those purposes, namely to provide for his reti rement or old

age.

[1 9] The fact that expatriates can close their CPF accounts, and Singaporean

citizens cannot, is irrelevant to whether s 70 applies. I acknowledge that this fact is,

however, very relevant to Mr _ sense of unfairness.

[20] I find against M r.on the first question.

An appeal against a decision ofthe Benefits Review Committee [201 6] NZSSAA 57.

The second question

[21J This question relates ;0 the lawfulness of the Chief Executive's suspension of

Mr -"NZS payments.

[22J Section 69G(1) of the Act requires every applicant for NZS to "provide to the

chief executive information establishing, to the satisfaction of the chief executive,"

that he or she has taken "all reasonable steps" to obtain any overseas pension to

which they may be entitled. Further, s 69G(2) empowers the Chief Executive to give

to a person receiving NZS "wri tten notice requiring that person to take all reasonable

steps, within a period specifi ed by the chief executive, to obtain any overseas

pension to which that person may be entitled or that may be granted to that person".

[23J Section 69G(4) provides (relevantly):

Where a person does not comply with a notice given by the chief executive under subsection (2) ... , the chief executive may

(b) suspend, from such date as the chief executive detennines, the benefit granted to the beneficiary until ...

(i) the beneficiary provides information establishing, to the satisfaction of the chief executive, that the beneficiary [hasJ taken all reasonable steps to obtain any overseas pension to which [he] may be entitled or that may be granted to [him]

[24J The Authority considered that the Chief Executive gave Mr '" ample

opportunity to take reasonable steps to test his entitlement to payments from the

CPF:7

[42J As outlined above, the provisions of s 70 apply to payments from the CPF. The appellant was given ample opportunity to either make an application for a CPF payment or to provide evidence of the payments he was recelvmg. He resisted all efforts to provide the necessary infom1ation. For example:

• On 25 November 2014, the appellant claimed that CPF was not a pension fund and only civil servants and the like received pensions.

An appeal against a decision ofthe Benefits Revi,"H' Committee, above n 6.

• In various cOl1ullunications from November 2014 onwards, the appellant asserted that it was not a social security-based pension fund but a Ki wisaver fund.

[43] On 30 June 201 5, the Ministry wrote to the appellant again requesting that he provide verification of his entitlement, to a payment from the CPF or evidence of writing to the CPF to apply for any entitlement and provide such evidence to the Ministry by 2 1 July 2015. The appellant did not provide a copy of any communication from himself to the CPF or verification of entitlement by 21 July 20 15.

[44] On 6 August 20 15, the Ministry wrote to the appellant and outlined the dates of nine communications sent to the appellant requesting he write to the CPF to test his eligibility for a pension and noting that the appellant had been requested to provide a copy of a letter sent to the CPF. The letter of 6 August records that the Ministry had not received a copy of any letter sent by the appellant to the CPF. As a result, the appellant was informed his New Zealand Superannuation payments would stop from 26 August 2015.

[45] We are saL ~: i.jed that the appellant was given ample opportunity to take reasonable steps to test his entitlement to a payment from the CPF. At the time the notice was sent on 6 August 2015 , the Chief Executive was entitled to conclude the appellant had not taken reasonable steps to pursue an application or to provide evidence that he had made an appJication. It was therefore appropriate for the Chief Executive to give notice that the appellant's New Zealand Superannuation would be suspended from 26 August 2015 if the information sought was not received prior to that date.

[46] On 11 August 20 15, the appellant provided a letter dated 20 July 2015 from the Central Provident Fund Board. This letter made it clear that the appellant held a fund with the Board but that he was not receiving a pension from the Board. The inference to be drawn from this letter is that the appellant had not taken steps to make an application to the Board for a pension or other periodical payment or allowance. The Ministry's request had not been satisfied by 26 August 2015. It was therefore appropriate for the Chief Executive to suspend the appellant's benefit entitlements in New Zealand from that date.

[25] It is clear that s 69G(4) gives the Chief Executive a broad discretion to

suspend NZS payments provided that he first gives written notice under s 69G(2).

The notice must require trye taking of all reasonable steps within a specified period.

If there is non-compliance, then s 69G(4) permits suspension of payments until the

Chief Executive is satisfied that all reasonable steps have been taken.

[26] T he discretion is not, of course, unfettered. As the Suprem e Court has held,

even "a broadly framed discretion should always be exercised to promote the policy

and objects of the A ct".8

Uilison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] I NZLR 42 at [53].

[27] The policy and objects of the Act in this case can be drawn from s 1 A, which

sets out the Act' s purpose. Broadly, it is to provide social security to those in need.

But, s l A(c) provides that fmancial support must be provided to people taking into

account:

(i) that where appropriate they should use the resources available to ,hem before seeking financ ial support under this Act; and

any financial support that they are eligible for or already receive, otherwise than under this Act, from publicly funded sources.

[28] It can be seen that the deduction regime in s 70 is consistent with s l A.

Mr-'submits that s lA(c) does not apply to his situation because his payments did

not come from publicly funded sources. But that is too narrow a construction. His

payments were publicly funded in the sense that the Singapore Government

established the CPF and required Mr . and his employers to contribute to it. The

payments were for a specific purpose. Even if that were not the case, s 70 sets up a

specific deduction regime that is not inconsistent with the overall purpose of the Act

as set out in s lAo

[29] The Chief Executive must exercise his s 69G( 4) discretions in accordance

with the purpose of the Act. So, the written notice required by s 69G(2) must be

directed towards steps that a beneficiary can reasonably be expected to take so long

as they are consistent with .the purpose of the Act. The specified period must also be

a reasonable one. Even the decision to give written notice must be exercised

consistent with the purpose of the Act.

[30] Likewise, the s 69G(4) discretion to suspend must be exercised consistent

with the purpose of the Act. This will determine both the appropriate date for the

suspension to commence and what information the beneficiary must provide to

satisfy the Chief Executive that all reasonable steps have been taken.

[31] The Chief Executive must also, of course, come to the exercise of these

discretions by taking into account the matters which are relevant to such exercise,

and excluding from consideration irrelevant matters.

[32J I have reviewed the correspondence in the materials provided to me.

Mr'" position is that he responded to the Chief Executive' s requests and that he

did so appropriateLy. I must disagree. The Chief Executive ' s requests were specific

and Mra's responses came from his belief that the funds in his CPF account could

not be used to reduce his NZS . In my view, the Authority was correct to find that, as

a matter of law, the Chief Executive was entitled to exercise his statutory discretion

to suspend Mr-"NZS payments.

[33J Mr. was gIven written notice of the Chief Executive 's intention to

suspend his NZS payments and the notice set out the information Mr Tan needed to

provide before payments would be restored. There was nothing unreasonable in the

Chief Executive's decisions and, in the circumstances, he was bound to exercise his

discretions as he did in order to further the purpose of the Act.

[34J I tlnd against Mr_on the second question.

Decisions

[35J To the first question:

Did the Authority err in its interpretation of s 70 of the Social Security Act 1964 in concluding that payments [Mr"'] receives from the Singapore Central Provident Fund should be deducted from [Mr _l entitlement to New Zealand Superannuation?

My answer is "No".

[36J To the second question:

Did the Authority err in its interpretation of s 69G( 4) of the Social Security Act 1964 in concluding that it was appropliate for the Chief Executive to suspend [I a1 benefit entitlements in New Zealand from 26 August 2015?

My answer is "No".

[37J Mr~ appeal is dismissed. If the Chief Executive seeks costs, he is to fi le

and serve a memorandum setting them out by 26 April 2017. In such event, Mr "

may file and serve a reply by 17 May 201 7.

Brewer J