Dear Ministry of Justice,

RE: SSA 128/15 - David Dahya v Ministry of Social Development

Firstly, I have marked all the questions/ key points with an asterix.

This matter (via Review of Decision) arose as a result of my job application to MSD being declined and relates specifically to MSD's obligation to provide support for my job seeking activities - which they didn't provide in this instance.

I have already put to Tobias V(Case Manager - Social Security Appeal Authority) some of these questions below but was advised that the Authority has issued its decisions on my appeal and has nothing further to add and to seek independant legal advice. I don't accept this response hence this FYI request.

If all my communication/correspondence was made through the SSAA case manager then who ensures all key points are addressed and that a fair and impartial process is carried out?

In December 2014 I had raised a matter challenging MSD's decision via;

- A letter to the CEO who didn't answer the majority of my questions/points raised nor make any decision on them.

- Review of Decision and subsequently the BRC who didn't make a decision because they advised that no actual decision was ever made by the CEO or any agent of MSD and so was outside of their jurisdiction.

- The Authority claimed no jurisdiction to hear the matter as there was no decision made by BRC they could address.

In reviewing the correspondence and decisions regarding the matter and additional information I have gained since I lodged the complaint in 2014 I would like to get some answers for clarification sake.

*- Can the matter(my initial letter December 2014) be re-presented to MSD for a decision to be made?

*-I would like to know could the Authority have referred the matter back to MSD to make a decision on the matter so that it could be addressed by the Authority if still required? It appears that MSD avoided making any decision on the matter in order to prevent the Authority from having jurisdiction to address it.

*- Why didn't the Authority question/look into my claim (made from the very beginning) that a decision was actually made at BRC hearing by the MSD representative who stated approximately "There is no legislation and so there is no obligation".

I had asked this of the Authority several times prior to their final decision but still there was no response to it.

*- Why didn't the Authority ask why the BRC didn't accept my written submission (on the day) which clarified several points of the hearing.

*- Why didn't the Authority ask the BRC panel why MSD representative MD's presence(and input) at the hearing were not recorded on official MSD documents including the BRC report?

Sometime after the hearing I requested a correction of information to the BRC report to reflect an MSD staff member's presence at the hearing and her input. This request was declined by the Stephen Ward (BRC panel chairman) and so knowingly allowed misleading information to remain on official MSD records/documents.

Summary:

- After the entire process was exhausted it was suggested I seek judicial review - not only is this a costly option, especially, for an unemployed job seeker(thanks to MSD) but because no decision was ever made by either the BRC or any agent of MSD, not even the Appeals Authority, there is, in fact, no decision that a judicial review can be applied to.

- The BRC didn't make a decision because they deemed it outside of their jurisdiction ie they 'considered' it an employment matter not one that was covered by the Social Securities Act despite one of the key points in the Review of Decision they ignored being 'Did MSD have an obligation to provide support for my job seeking activity?'

- In July 2015 I sent Athenia Barnes (BRC coordinator) a letter requesting a 'correction of information' to the BRC report as it indicated a lack of preparation & input on my part but it failed to note, the MSD representative's attendance (MD), her responses at the hearing and virtually my entire verbal submission. Yet, MSD's input and responses were clearly outlined and well structured in the report even though a record of their response to my second point(in the original Review of Decision application) remained ommitted from their report.

MSD stated that they do not have any obligation to help me to get a job - this point was not recorded in the BRC report.

-In August 2015 I received letter from Stephen Ward advising the report will remain unchanged but he still failed to address the second point - WINZ had failed in the their obligation to me, a job seeker, to provide support in my job seeking activities namely, a particular job application at MSD.

Instead I was advised by the Athenia Barnes (BRC coordinator) to escalate the matter to the Ombudsmen's office - so MSD were prepared to not only 'fob off' the matter but waste the time of another government authority when they could have easily resolved the matter themselves or were they hoping the matter would be buried in more paperwork, time and bureaucracy?

What MSD blatantly disregarded was that regardless of whether they agreed with my 'statement of correction' or not they were obligated to attach it to the BRC report as per Privacy Act and so they knowingly breached of Principle 7 of the Privacy Act.

- MSD/BRC failed to produce an accurate and complete BRC report - the current one is misleading and incorrect ie it fails to acknowledge, in official documentation, the attendance of an MSD representative at the hearing, her input, and failure to address 1 of 2 key points noted in my initial 'Review of Decision' application.

*- I still seek correction of information of the BRC report dated 7/7/15.

- BRC/MSD advised they don't have obligation to provide support for my job applications.

So there appears to be many unanswered questions/ points that should have been addressed during the MSD/BRC & SSAA process and I would like to know whether anything can be done about it and who is accountable for ensuring a fair and reasonable process is carried out?

*Furthermore, I call on MSD/BRC or the Authority to refute ANY of my claims above and, if they do, then please list them.

Lastly, I cite s27(1) of the New Zealand Bill of Rights Act 1990 'Right to justice' which requires the Authority and the Court to comply with the principles of natural justice.

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

Yours faithfully,

D Dahya

Dear Sophie,

I am still waiting for a response to this.

As I need to know whether I can have this matter reviewed or not.

Yours sincerely,

D Dahya

A response from Jacquelyn Shannon -Group manager Regional Service Delivery

List of the 5 questions I have requested.

1. Can the matter(my initial letter December 2014) be re-presented to MSD for a decision to be made?

2. I would like to know could the Authority have referred the matter back to MSD to make a decision on the matter so that it could be addressed by the Authority if still required? It appears that MSD avoided making any decision on the matter in order to prevent the Authority from having jurisdiction to address it.

3. Why didn't the Authority question/look into my claim (made from the very beginning) that a decision was actually made at BRC hearing by the MSD representative who stated approximately "There is no legislation and so there is no obligation".

4. Why didn't the Authority ask why the BRC didn't accept my written submission (on the day) which clarified several points of the hearing.

5. Why didn't the Authority ask the BRC panel why MSD representative MD's presence(and input) at the hearing were not recorded on official MSD documents including the BRC report?

I am advised the info I have requested falls outside of the provisions of the OIA. Section 2(6)(b) OIA act specifies that it does not apply to the judicial functions of a court or tribunal. Information obtained by the Authority during the course of the complaint is considered to be Authority record rather than official information. Accordingly, the request is refused pursuant to 18(g) of the OIA as the Ministry does not hold the information I have requested.

I am advised that access to Authority record is governed by legislation and there are specific rules on how this information can be released. Any information considered to be Authority record is a judicial decision. The Ministry of Justice can not intervene or comment on this decision making process.

I am then invited to lodge a complaint with the Ombudsmen's office.

As the request is subsequently refused I have lodged a new request to Ministry of Social Development. Please refer to following link ...
https://fyi.org.nz/request/6728-flawed-b...

Yours sincerely,

D Dahya

Hi Antony

I will clarify this last entry of mine dated 20/10/17 outlining the response from Jacquelyn Shannon ( and the 5 questions). It is not an additional request.

The 5 questions were noted to provide context to Jacquelyn's response - which appear below the 5 questions I had already put to her and not as additional requests.

As stated Jacqueline has advised these requests fall outside the provisions of the OIA and as the request has been refused I have lodged a new request to Ministry of Social Development. Please refer to following link ...
https://fyi.org.nz/request/6728-flawed-b...

I will close this request off.

Regards

David Dahya