Wednesday, January 13, 2016


I am not too sure too many people are aware that every decision made by Ministry of Social Deveopment staff relating to grant of a benefit (including NZ Superannuation) can be appealed.   It is a three tiered process.   The first level is an internal review carried out by a staff member divorced from the case.   The second tier is the Benefit Review Committee while the third level is the Social Security Appeal Authority.   Appeals to the SSAA from the BRC are restricted to points of law.

The BRC is the second tier appellant authority.   It comprises two members of MSD (usually from an office separate from the one that made the original decision) and a third person (with no links to MSD) appointed by the Minister.  It functions in a quasi-judicial capacity and its decisions are binding on MSD i.e. only the appellant can appeal a decision of the BRC to the SSAA.

I have been a one of the independent members of the BRC for the last twelve years since I was first appointed by the Clark Labour government in a decision that I guess raised eyebrows at the time.    It is interesting and satisfying work especially when you are able to put right an injustice.   Often the people appearing before you are inarticulate but it is important that they are given as much space as they need to tell their side of the story in their own way.  

In the last twelve months close to 1200 appeals were heard by the BRC leading to 11% of decisions being overturned.   That ratio has remained fairly constant over the years.

If I have one disappointment and it's when appellants who have gone to the trouble to file an appeal don't turn up for the hearing (which takes place in an MSD office closest to their place of residence) .   In that situation the appeal is dealt with 'on the papers' .   An appellant appearing before the BRC has a much greater chance of success rather than having us left with nothing more than a sometimes barely readable written submission.


Ross said...

It is interesting that the ratio of successful appeals remains steady at around 11%.

One, it appears to be similar under a Labour or National government, so who the government is doesn't influence decisions.

Two. No one seems to be learning from the past and it looks like mistakes get repeated. I would expect a well run organisation would be getting the rate of successful appeals down over time by learning from its mistakes and making better decisions.

Lindsay Mitchell said...

It's a worry to me that 11% might be too low a representation of genuinely unjust decisions because those with a propensity to not complain may outnumber those who do.

Not turning up might be an indicator of complaints without-the-strength-of-conviction. How often does it happen?

Noel said...

Given the role is to ensure the Deparment has done it right before going higher a consistent failure rate suggest someone with oversight isn't doing a good job. Just who is the Minister responsible?

pdm said...

Noel -why does it have to go back to the Minister? After all percentage has remained constant through both Labour and National led governments so looking for ministerial scapegoats doesn't make sense.

Noel said...

Aw gee something in the Cabinet Manual about indenties under their portfolios perhaps?

Shelldrake said...

Noel: Have you ever been accountable for any endeavour of substance in the public domain or are you just a perpetual critic?

Eric said...

".....appellants who have gone to the trouble to file an appeal don't turn up for the hearing...."

Your disappointment suggests this number of these is reasonably significant.

Professional services I use, eg Doctors, all text me the day before an appointment seeking my confirmation that I will attend. Although this would be extra work ( and I may be assuming incorrectly that the BRC does not do this already), some sort of reminder might assist. Other factors may affect some non-appearances, and a personal approach may help reduce that number. Perhaps volunteers could assist somehow. Or hearings could be rescheduled where genuine reasons preclude the attendance.

The Veteran said...

Lindsay ... a significant number of appeals are abandoned mid-course. That would suggest they were lodged in a moment of frustration having received the original letter which contains details of their appeal rights. It takes as little as 'I appeal' to start the process. It maybe that in the cold light of day, when they are asked to set out their reasons for the appeal, reality sets in.

In my experience and the number of appellants who fail to turn up to a hearing hovers around the 25% mark. One can only guess the reasons for that and there will be many. It maybe that for some it's a case of bloody mindlessness having come to the conclusion that their appeal doesn't have too much merit and its not worth their while to turn up but that process will take its course and maybe, just maybe, they may luck out.

To answer Eric's point ... hearings will almost always be rescheduled on request.

For Noel ... absolutely nothing but nothing to do with ministerial responsibility. Its people exercising their legal right in exactly the same way as they do in the criminal and civil jurisdictions. It's right and proper for that to happen and while every decision of any government department is open to judicial review, it is an expensive and daunting process. Appeals to the BRC cost nothing (except the appellants time). They can choose to be represented by legal counsel (and a small % do) or have an advocate speak on their behalf. The panel hearing the case is bound by the rules of natural justice and a deal of leeway is given to the appellant and again, this is appropriate, given that, for many, the Department is seen as a faceless monolith.

Two final points. MSD staff on the panel have no difficulty in criticizing their own. As an 'outsider' I have to be impressed with that. My observation is that Maori and PI staff tend to be slightly harder on appellants from their own ethnic background.

Finally, and you do get some 'doozies'. Like the charlaton who peddled his away around Maraes (for a fee) promoting the canard that everyone in NZL was entitled to a 'national dividend' worth something like $100,000 plus, calculated on the net worth of the country divided by the population, and held in some mysterious account managed by the government. An appellant who owed money to the Department argued that the sum should be deducted from his National Dividend Account. In an 'interesting' hearing we declined his appeal. He took it to the SSAA which would have exercised their minds. That case led me to argue that appeals to the SSAA should be 'by leave' rather than 'as of right'. The Minister took a contrary view and the situation remains that access to the SSAA is unrestricted.

Noel said...
This comment has been removed by a blog administrator.
The Veteran said...

Noel ... pse do not use even my christian name in future posts. MSD is a large organisation and the shear volume and pressure of work means that staff will make mistakes. That's how it has been and that's how it will remain. Of course it shouldn't happen but it does and remember always that each case is different and sometimes applicants struggle with the interview process and fail to get their story across. If anything the BRC process is weighted in favor of the appellant and again, I'm comfortable with that. These are people under stress ... they deserve a fair hearing and the panel is bound to make sure that happens.

Noel said...
This comment has been removed by a blog administrator.
Eric said...

Thanks Veteran. 25% no-shows is abysmal, no wonder you expressed disappointment. Appreciate your perspective.

The Veteran said...

Noel ... your post (deleted) could be read by some as referring to me and ... in you second post (deleted) you did it again directly. Happy for you to repost but reformat pse. tks.

Nookin said...

I read the Social Security Appeal Authority decisions from time to time because they impact on estate planning matters particularly if there is any prospect of an application for a residential care subsidy down the track.
Staff at Work & Income New Zealand are faced with factual and legal issues that can be highly complex. Even an application for a DPB (or whatever they call it now) can involve difficulties in determining the facts if there is a suggestion of a relationship in the nature of marriage.

Once the facts are determined, somebody has to draw the appropriate conclusions within the parameters of the legislation. That is not always easy.

It is very superficial and are disingenuous to suggest that because appeals have an 11 percent success rate, staff are getting it wrong 11 percent of the time. Such an approach displays a complete misunderstanding of the process and complexities.

The Appeal Authority deals not only with people who have difficulty expressing themselves, it also deals with people who are intent on taking every advantage and who, despite the context, may have the backing of reasonably significant resources and legal firepower.

I would think that the system appears to be working consistently well without, perhaps, excelling (as it should) in the case of those who are disadvantaged.
Well done Vet.

Noel said...

Goodbye dipshit.

The Veteran said...

Nookin ... You're right ... my copy of the SS Act runs to 272 pages while that involving NZ Super is another 31 pages. Many of the issues are indeed complex particularly as they relate to residential care subsidy applications and those concerned with the DPB (especially split custody situations) and matters relating to conjugal status for benefit purposes. Appeals relating to the (non) approval of emergency grants also figure prominently (there is a fair amount of misconception out there as to how readily they are available). The reality is that they are capped and tough to get and are always recoverable as a charge against future benefit payments.

Your comments appreciated.

The Veteran said...

Noel ... well goodbye then, for ever. Your choice of words mandates that and you are banned permanently unless you apologize for them. You appear perpetually angry and balanced with a chip on both shoulders. Not an overly good recipe for successful living.

Anonymous said...

From past observation I see that apologies are a one way street on this blog.

Budgieboy said...

If you guys enforce this ban it will be the best thing that ever happens to this blog.

Noel offers nothing of contribution to the posts he shits all over, instead dragging his inane irrelevant craptrap out into the mix and to what purpose?

Being a jerk? Yeah I guess that spins his wheels but I think what he really manages to do is shut down worthwhile debate. I for one can't be bothered tip toeing around the excrement he leaves so don't generally just don't bother. Maybe there are others who feel the same and this blog will start to get the level of comments that the quality of posts deserve.

Transparency in New Zealand, Kiwileaks. said...

Here's one -
Amazing what a change in Chairperson can do . . . the Benefit Review Committee was warned in 2015 not to use fake names. They apparently ignored the directive. The latest Minute on a particular case is particularly interesting - well worth a read. Rumour has it that this case is headed for the UN.

Sonja Lawson said...

It is interesting to note clients of the Remote Client Unit do not have any independent person to review decisions WINZ make. Also the RCU staff use false names so you have no idea who is accessing private details and in a lot of cases very private health information.

When a RCU client lodges a review of decision the original decision maker is generally the same named person that also does the internal review. As well as the same named person who writes the report to the District Benefit Review Committee. It is also very concerning that documents a client give the RCU are not being processed and date stamped and hand signed and not given back to the client for their records.

Also documents a client has given the RCU are not being passed onto the DBRC members and are also being withheld from MSD and SSAA. It is also of much concern that now it seems that even the District Benefit Review Committee members are using false names. So that means a client has no way of knowing that the committee members are impartial or have not had any dealing with the client.

Of bigger concern is the community representative is supposed to be a person of high standing in the community and of good character and integrity. Often the community rep is a Justice of the Peace. My question to WINZ is if DBRC members are knowingly using false names how does a client know they are dealing with MSD employees and a community rep of good standing in the community? Simply clients don't know who they are dealing with.

The main concern is a client's private information and details are being distributed around New Zealand by WINZ and others in government departments and there is no way of knowing who has viewed that information or how that information has been used.

Anonymous said...

There's a huge concern these days over MSD thinking its above the BRCs. If MSD doesn't agree with the outcome reached by a BRC it often just makes another decision effectively overturning it. MSD's not supposed to do this and shows how unfair the skewed membership of the BRC is. It's really quite outrageous that the BRC has two MSD people on it. I don't buy their explanation about how the rules are so complex it's advantageous having MSD people on the panel. There areally does need to be independent people on there.

Anonymous said...

Appeals to the Social Security Appeal Authority aren't restricted to questions of law. You're getting confused with appeals to the High Court against decisions of the Appeal Authority.