Student Allowance Review Panel
Members’ Information Pack
Contents
Legislation .............................................................................................................................. 4
Education Act 1989.................................................................................................................... 4
305 - Appeals ................................................................................................................... 4
Overview
.............................................................................................................................. 5
Student Allowances Review Process ........................................................................................ 6
Student Allowances Review Process timeframes ............................................................ 7
Asking for a Review of Decision .............................................................................................. 11
A Review of Decision is an opportunity for .............................................................................. 11
Purpose of the Student Allowance Review panel .................................................................... 11
Pre Hearing Procedures .......................................................................................................... 11
Student Allowance Review Panel ............................................................................................ 11
Objection to panel member ..................................................................................................... 11
Impartiality ............................................................................................................................ 12
Matter heard previously ........................................................................................................... 12
Exceptions ............................................................................................................................ 12
Natural Justice ......................................................................................................................... 12
Fundamental Breaches of Natural Justice............................................................................... 13
Fundamental errors ................................................................................................................. 14
Out of time Hearing.................................................................................................................. 14
Hearings for clients being prosecuted ..................................................................................... 15
Jurisdiction – can an issue be heard? ..................................................................................... 15
What should a SAR report contain .......................................................................................... 16
New information ....................................................................................................................... 16
New information provided when the applicant applies for a Review of Decision ........... 16
New information provided prior to the Student Allowance Review Hearing ................... 16
New information presented at a Student Allowance Review Hearing ............................ 16
Additional information required for the Secretary to make a decision ............................ 16
New information provided after the hearing but before the decision has been sent to
the applicant and the Ministry ......................................................................................... 17
New information provided after the decision has been made and the findings have been
sent to the applicant in the Report of the Secretary ....................................................... 17
Personal Representations ....................................................................................................... 17
Hearing the review via teleconference/video conference ........................................................ 18
Hearing the review on papers .................................................................................................. 18
Resources available to the Student Allowance Review Panel to assist the Secretary making a
decision
............................................................................................................................ 18
Hearing procedure ................................................................................................................... 18
The applicant does not attend ........................................................................................ 18
Non consent of NZUSA Advisor ..................................................................................... 18
Disqualification of panel member ................................................................................... 19
Tone of hearing............................................................................................................... 19
Disruption ........................................................................................................................ 20
Record of hearing ........................................................................................................... 20
2
What is evidence? .......................................................................................................... 20
Decisions 22
Making Decisions............................................................................................................ 23
Available Decisions ........................................................................................................ 23
Consideration of Natural Justice and Administrative Law .............................................. 23
Roles and Responsibilities ................................................................................................... 24
MSD Presenter’s role............................................................................................................... 24
MSD Panel member’s role ....................................................................................................... 25
Chairperson’s Guide ................................................................................................................ 25
Chairperson’s role .......................................................................................................... 25
How to run a hearing ...................................................................................................... 26
Managing panel members’ documentation .................................................................... 27
Post-presentation decision making................................................................................. 27
Who writes the Secretary decision report? ..................................................................... 28
Preparing the Secretary decision report ......................................................................... 28
Content of the Secretary decision report ........................................................................ 28
Appeal Rights .......................................................................................................................... 28
Appendix 1: Student Allowance Review Hearing Notes .......................................................... 29
Appendix 2: Secretary’s Decision Checklist ............................................................................ 30
Appendix 3: Report of the Secretary ....................................................................................... 32
Appendix 4: Glossary of terms ................................................................................................ 36
Legislation ....................................................................................................................... 36
Policy36
MAP 36
Judiciary .......................................................................................................................... 36
Student Allowance Appeal Authority (SAAA) ................................................................. 36
Jurisdiction ...................................................................................................................... 36
Appendix 5: Relevant Legislation ............................................................................................ 37
Education Act 1989 ....................................................................................................... 37
305 Appeals ............................................................................................................ 37
Student Allowances Regulations 1998 .......................................................................... 38
36 Lodging of appeals .......................................................................................... 38
37 Relevant chief executive of Ministry of Education will be given copies of
notices of appeal ............................................................................................. 38
38 Evidence .......................................................................................................... 39
3
Legislation
Part 6, regulation 36 of the
Student Allowances Regulations 1998 allows for a
Student Allowances decision to be appealed to an independent authority and Part 25
of the
Education Act 1989 describes this authority in more detail.
Clause 305 of Part 25 of the Education Act lists the decisions that may be appealed
and the opportunity for the Secretary (a delegated representative of the Chief
Executive of the Ministry of Social Development) to first review a decision being
appealed:
305
Appeals
(1)
This subsection applies to every decision under this Act (being a decision that
the person or body making it had power to make in some other way)—
(a)
Fixing the amount of any allowance; or
(b)
Declining to award an allowance to any person; or
(c)
Approving as a full-time programme for any person in any year any
specified part of a course of study; or
(d)
Refusing to approve as a full-time programme in any year any part of
a course of study for any person; or
(e)
Refusing to extend the period in respect of which any person may
receive payments under any allowance; or
(f)
Refusing to recognise the amount of work passed in any year by any
person as being sufficient to entitle the person to the reinstatement of
any allowance; or
(g)
Refusing to recognise any qualification or amount of work gained or
passed by any person as being equivalent to any other qualification or
amount of work.
(2)
Where any person enrolled or intending to enrol at a tertiary institution is
aggrieved by a decision to which subsection (1) of this section applies, being
a decision the making of which has been delegated to [an employee of the
Ministry] by the Secretary, that person may request the Secretary to review
that decision; and in that case the Secretary shall review that decision and
shall either—
(a)
Confirm it; or
(b)
Substitute for it any other decision that the person or body that made it
might have made.
(2A)
An application for a review under subsection (2) must be brought within 3
months after the person receives notification of the decision, or (if the
Secretary considers there is good reason for the delay) within such further
period as the Secretary may allow on application made either before or after
the expiration of that period of 3 months.
(3)
Where any person is aggrieved by—
(a)
The decision by the Secretary under subsection (2)(a) of this section
to confirm any decision relating to the person; or
(b)
Any decision relating to the person substituted by the Secretary under
subsection (2)(b) of this section for any other decision; or
(c)
Any decision relating to the person made by the Secretary [(other than
by an employee of the Ministry under delegation)] to which subsection
(1) of this section applies—
4
the person may appeal against the decision; and in that case the authority
shall consider the appeal and, in the light of all the circumstances it considers
relevant, shall either—
(d)
Confirm the decision; or
(e)
Substitute for it any other decision that the Secretary might have
made,—
and the confirmation or decision shall have effect as if it were the decision of
the Secretary.
(4)
Every decision of the authority shall be accompanied by written reasons for it.
(5)
When substituting for any decision of the Secretary any other decision that
the Secretary might have made, the authority may (if it thinks that in all the
circumstances to do so would be appropriate) require the Secretary to pay a
sum fixed by the authority, being all or part of the costs incurred by the
authority in hearing the appeal; and in that case the Secretary shall cause
that sum to be paid to the [[chief executive of the Ministry of Justice.
The Ministry of Social Development (the Ministry), as a means of making the review
and appeal process more consistent across the entire Ministry, allows the applicant
to elect that the Secretary be assisted by two advisors – one from the Ministry and
the other from the New Zealand Union of Students’ Associations (NZUSA). This
arrangement is known as the
Student Allowances Review Panel.
Overview
Reviews are an opportunity for a person to challenge a decision of the Ministry and
for the Ministry to take a fresh and independent look at decisions made by the
Ministry.
Student Allowances Reviews differ from Benefit Reviews (which are governed by the
Social Security Act 1964):
• Whether or not a Review Panel is convened for a Student Allowances review
is a decision for the applicant to make. If the applicant does not consent to the
inclusion of an NZUSA advisor, the Secretary alone will make the decision
• If, at the hearing, the applicant withdraws consent for the NZUSA advisor to
attend, the full panel will not be convened and the standard secretary review
process will be followed. If the applicant wishes to meet with the Secretary
alone, the Ministry presenter must also be present and have an opportunity to
present the Ministry’s position
• Decision making power sits with the Secretary alone. The Ministry and the
NZUSA advisors have an advisory role only.
These reviews must be in accordance with procedure and the law on a case by case
basis. The Review Panel is not established through legislation, but by the Ministry
itself in an effort to be comprehensive in reviewing decisions made by the Ministry
and ensure that the Ministry’s decisions are fair and correct.
This guide is intended to assist you in discharging that responsibility as a Review
Panel member.
The following pages set out the processes, timeframes and guidelines for Review
Panel members.
5
Student Allowance Review Process
The flow chart above and explanation below are a general overview of the Student
Allowance Review process (time frame shown as maximum days).
Student Allowance Review Hearing Process Timeliness
Step in Process
Working
days
allowed
ROD received and acknowledgement
1
letter sent
Internal review submission drafted
10
Internal review submitted for signoff
3
Copy of report sent to client with letter
1
Student Allowance Review Hearing
Timeframes
Follow-up with client regarding report
10
and decision to go to SAR or not
Client opts in to hearing ->
Yes
10*
• Waiver discussion held.
Waiver and letter sent to client
to sign and return to Report
Writer.
(waiver required for hearing to take
place)
Waiver received.
2
• Report Writer prepares SAR
report
SAR report signed by Manager
2
Original SAR report and waiver given
1
to co-ordinator (copy held by RWT)
Co-ordinator arranges hearing
5
Co-ordinator sends the report and
1
hearing invite letter to panel and
student
Review hearing held (paper or person)
7
Secretary completes report and
5
passes to Co-ordinator
Co-ordinator sends copy of report and
1
original letter to client. (Original report
and copy of letter given to RW)
Report Writer receives SAR report and
2
ensures decision is implemented.
54
* up to 15 working days if no waiver received within the 10 days
Out-of -Time Student Allowance Review Hearing Process to decide if Secretary
will hear Out-of-Time Review of Decision
Step in process
Days
OOT ROD received and 1
acknowledgement letter sent
OOT Internal review submission 10
drafted
OOT Internal review submitted for
3
signoff
Copy of OOT report sent to client with
1
letter
OOT Student Allowance Review
Hearing Timeframes
Follow-up with client regarding OOT
10
report and decision to go to SAR or not
Client opts in to hearing ->
Yes
10*
• Waiver discussion held.
Waiver and letter sent to client
to sign and return to Report
Writer.
(waiver required for hearing to take
place)
Waiver received.
2
• Report Writer prepares OOT
SAR report
OOT SAR report signed by Manager
2
8
Original OOT SAR report and waiver
1
given to co-ordinator (copy held by
RWT)
Co-ordinator arranges OOT hearing
5
Co-ordinator sends the OOT report
1
and hearing invite letter to panel and
student
OOT Review hearing held (paper or person)
Secretary completes OOT report and
5
passes to Co-ordinator
Co-ordinator sends copy of OOT
1
report and original letter to client.
(Original OOT report and copy of letter
given to RW)
Report Writer receives OOT SAR
2
report and ensures decision is
implemented
Total
54
If the Secretary agrees to hear Out-of-Time Review of Decision then the
following timeliness applies
Step in process
Days
Internal review submission drafted
10
Internal review submitted for signoff
3
Copy of report sent to client with letter
1
Student Allowance Review Hearing
Timeframes
Follow-up with client regarding report
10
and decision to go to SAR or not
Client opts in to hearing ->
Yes
10*
• Waiver discussion held.
Waiver and letter sent to client
to sign and return to Report
Writer.
9
(waiver only required if different
NZUSA advisor)
Waiver received.
2
• Report Writer prepares SAR
report
SAR report signed by Manager
2
Original SAR report and waiver given
1
to co-ordinator (copy held by RWT)
Co-ordinator arranges hearing
5
Co-ordinator sends the report and
1
hearing invite letter to panel and
student
Review hearing held (paper or person)
Secretary completes report and
5
passes to Co-ordinator
Co-ordinator sends copy of report and
1
original letter to client. (Original report
and copy of letter given to RW)
Report Writer receives SAR report and
2
ensures decision is implemented
Total timeliness for Out-of-Time
108
* up to 15 working days if no waiver received within the 10 days
10
Asking for a Review of Decision
A Review of Decision is an opportunity for:
•
The applicant to advise that they disagree with a specific decision made.
•
The Ministry to ensure that legislation has been applied correctly; this includes
the appropriate exercise of discretion.
An applicant can apply in writing for a Review of Decision (this may be in a letter or
an application form) where they have received formal notification of (and do not
agree with) a decision which has been made. This includes decisions made under
section 305(1) of the Education Act 1989, and any other decision that the Ministry
makes.
Purpose of the Student Allowance review panel
The Student Allowance Review Panel (the Review Panel) has been set up so that an
independent review of the Ministry of Social Development’s (the Ministry’s) decision
can be carried out, to ensure that correct and fair decisions have been made in
accordance with the law governing Student Allowance entitlement. This is
Section
305 of the Education Act 1989.
Pre Hearing Procedures
Student Allowance Review Panel
The Review Panel has three members. It includes:
•
The Secretary. The Secretary is a person within the Ministry who has authority
to review Student Allowance decisions. The Secretary has had no prior
involvement with the case.
•
Two advisors. One advisor is from the Ministry. The other is from the NZUSA.
The two advisors do not take part in the final decision making. They are there
to provide advice to the Secretary. The Ministry advisor has had no prior
involvement with the case either.
All three members of the Review Panel must be present at the Hearing, but only the
Secretary has the authority to make a decision.
Objections to panel member
The applicant can make submissions objecting to the persons selected as the
Secretary or Ministry advisor. The submission needs to include reasons for their
objection. If grounds are found for disqualification, or there is an issue with a
particular panel member that will interfere with the process of natural justice, the
panel member objected to, is usually replaced.
If at this point in time the applicant wishes to withdraw their consent to the NZUSA
Panel Advisor being included in the review process, then they may do so without
having to provide an explanation. The Review Panel will be dissolved and the review
will be heard by the Secretary alone. In this instance the Secretary already has the
delegated authority so the student should be provided with the option to have their
case heard as a Secretary’s review at this time. Alternatively they can arrange a
separate time to meet. If the student does want to present their case to the
Secretary, the Ministry presenter must be present also.
11
Impartiality
The role of the Review Panel is to independently review the Ministry’s decision in
accordance with the law. The issue of independence is very important. A Review
Panel member is not acting as a representative of the Ministry. Each member of the
Review Panel should take great care to ensure that they openly act independently
and fairly.
Matter heard previously
An applicant has the right to have their decision reviewed once. If the decision has
already been reviewed, it cannot be reviewed again. If the review has been heard by
the Review Panel previously and the applicant has not appealed the decision to the
Student Allowance Appeal Authority, suggest to them that they should do this if they
are still unhappy with the decision. The client has 21 days to lodge an appeal with the
Authority, unless the Authority allows a longer period.
Note: In some cases, what may seem to be an application to review a decision
again, may, in fact, relate to a different decision.
Exceptions
A second Hearing may not be convened to review a decision of an original Review
Panel. The only exceptions to this would be if there had been a fundamental breach
of natural justice as defined below or a fundamental error where the Review Panel
has not actually carried out its function to review a decision. For example:
Natural Justice
As a member of the Review Panel it is very important that you act in accordance with
the principles of natural justice.
Natural justice is a concept that has been around in the law for a long time. At its
most simple, it could be described as the duty of judicial and administrative officials
to act fairly. It has two parts:
•
A person should not be a judge in a case they have been involved with.
•
A person must always be given a chance to be heard. There are a number of
aspects to this, which you should keep in mind at all stages of the review
process; these are discussed below.
Both the applicant and the Ministry must be given the opportunity to explain their
view of the case. This means that each party is able to state their case and that you,
as the Review Panel, take into account what each party has said. The Secretary will
summarise the main points of the case made by each party at the end of their
submissions. This lets everyone know that they have been listened to.
Where it seems that the information being given is not directly relevant to the issues,
all parties must still get the opportunity to state their case. The Secretary will be
responsible for facilitating the proceedings and moving things along.
12
If new information comes up after one or both parties have already presented their
main case, each party will be given the chance to respond.
The right to be heard also includes a person’s right to hear the case against them.
Each party is given the opportunity to hear the main points of the case of the other
party. If someone does not understand the other party’s case they won’t be able to
argue their case properly. Always ask someone to clarify what they have said if you
don’t understand. This means that both parties should be present throughout the
Hearing to ensure they can hear and if required, respond to, any additional points.
The Review Panel should let the parties know about any policy, cases, or legislation
which the panel thinks affects the case, but has not been discussed. Again this gives
the parties a chance to respond and make the best submissions that they can.
Although it is important to treat both the Ministry and the applicant equally, you
should recognise that the Ministry has a natural advantage. The Ministry presenter
will have access to the relevant law and policy and legal advice; the applicant may
not have this. To minimise this imbalance of power, focus on ensuring that the
applicant has a full opportunity to be heard. Assist the applicant by pointing them to
relevant legislation and policy and, if necessary, explaining it to them.
If you have sought further information, in particular a legal interpretation relating to a
specific point, suggest that the applicant may like to get some advice from an
advocacy service and ask the Ministry to provide the applicant with the information
available and referral services available in their area.
Examples of Breaches of Natural Justice
•
The applicant has not been informed of the Hearing.
•
The applicant is not given the opportunity to consent to including a particular
NZUSA Panel Advisor in the review process; or
•
The applicant has not been given the opportunity to explain their view of the
case. This can be in person or by written submission responding to any
material or written submissions the Ministry produces.
In these situations:
•
The Review Panel would need to reconvene, so that the applicant can either
attend the Hearing or have the opportunity to submit material for the same
Review Panel to consider; OR
•
(if a decision has already been made and sent out to both parties), the first
Hearing will be treated as invalid (i.e. treated as never having existed) and a
new Hearing arranged.
If the Secretary or any panel member thinks that there may have been a breach of
natural justice or an error you should contact the Ministry immediately for advice on
how to manage this situation.
13
Fundamental errors
Description of error
What to do – best remedy of error
The chosen Review Panel does not have New Review Panel to be arranged
the right make up (eg one Secretary and (original Review Panel treated as
two advisors: one from the Ministry and invalid).
one from the NZUSA).
Any member of the Review Panel has
had prior involvement in the decision New Review Panel to be arranged
being reviewed.
(original Review Panel treated as
invalid).
For more information refer
Disqualification Pg 17
The Secretary does not make a decision New Review Panel to be arranged
to:
(original Review Panel treated as
•
uphold / confirm
invalid).
•
partially uphold / vary
•
overturn / revoke the original
decision.
The Secretary does not give reasons for Reconvene original Review Panel to
their decision.
correct the omission.
If the reconvened Review Panel are
unable to give reason(s) for its decision
a new Review Panel will have to be
arranged (original Review Panel treated
as invalid).
Out-of-Time Review Hearing
Section 305 of the Education Act 1989, gives applicants three months from the date
they were notified of the decision to apply for a Review of Decision. This is
considered to be received on the fourth day after it was posted unless there is
evidence to the contrary. Evidence may include the fact that the applicant has
notified the Ministry that they have moved address (and the Ministry has not noted
the information) or that the mail is returned “not known at this address”. Each case
will need to be considered individually. However, the legislation gives the Secretary
the ability to hear reviews out-of-time if they consider there is good reason for the
delay in requesting a review.
The first step is to confirm that the request for a Review of Decision has been filed
within three months of the applicant being notified of the decision. If the Review of
Decision has not been requested within three months, the applicant needs to have
good reason for the delay in requesting a review. The applicant must be given the
opportunity to provide reasons for the review if they are not included in their Review
of Decision.
If the original request for review does not state the reasons for the delay in submitting
the review, attempts need to be made by StudyLink to contact the applicant to give
him/her an opportunity to explain why the review was lodged out-of-time.
14
An
Internal Review Submission is completed on the out-of-time issue itself.
The applicant will then be given the opportunity to provide further information or
comment on the submission and then to attend an Out-of-Time Hearing for their case
to be decided by the Secretary.
The
Report to the Secretary – Out-of-Time should be completed on the out-of-time
issue only. The Secretary will decide whether there is good reason for the delay.
Refer to Appendix 6,
Report to the Secretary – Out-of-Time.
If the Secretary finds that there were not good reasons for the delay, the Secretary
should decline to hear an application for review more than three months after
notification of the decision. It should not consider the substantive issue. The
applicant
does not have the right of appeal to the Student Allowance Appeal Authority if the
Secretary determines that there are no grounds for the decision to be reviewed
outside of the three month timeframe.
If the Secretary decides that there is a good reason for the delay, the Secretary will
decide to allow the review to proceed to the substantive Hearing. The Review Panel
will consider the substantive issue at another time after a review submission on the
substantive issue has been completed and the standard review process has been
followed.
Hearings for clients being prosecuted
At times, an applicant may ask for a Review of Decision for which they are also being
prosecuted. In these situations they must be made aware that anything they say or
produce as information or evidence during a Hearing can be used as evidence in the
court prosecution.
Jurisdiction – can an issue be heard?
If jurisdiction is an issue, the Review Panel will hold a jurisdiction Hearing and make
a determination on that matter before considering the substantive decision.
If the application for review is clearly outside the jurisdiction of the Review Panel, the
applicant should be advised and given the opportunity to withdraw their application
for review. In all other cases, the matter should be forwarded directly to the Review
Panel.
Decisions that are outside of jurisdiction of the Student Allowance Review
Panel
The Review Panel cannot review a decision (the Review Panel does not have
jurisdiction) if:
• it is not subject to
Section 305 of the
Education Act 1989 or
• the matter has been heard previously by the Secretary or Review Panel or by
another judicial body or
• the review is outside the three month review period and the Secretary considers
there is not a good reason for delay.
15
What should a SAR report contain?
All reports to the Review Panel are in a standard format. A report to the Review
Panel should contain:
• the applicant’s details
• an explanation of the decision being reviewed
• initial actions and decision made (Summary of Facts)
• a copy of relevant legislation and policy
• internal review actions and decision made
• the applicant’s and their representative’s view on the case
• the Ministry’s view on the case
• a recommendation from the Ministry
• a list of attachments to the report.
The report and its attachments must be considered along with any information or
submissions provided by the applicant and their representative (if they have one).
New Information received
New information provided prior to the Student Allowance Review Hearing
Any new information provided to the Co-ordinator must also be provided to all other
parties (e.g. the Ministry or applicant). The other parties must be given time to
consider the additional information before the Hearing. (The co-ordinator undertakes
the responsibilities of disseminating information to all relevant parties.) Alternatively,
the Hearing can be postponed until the other parties have had sufficient time to
consider the additional information. If the Hearing is postponed, it is important that a
new date is arranged at the time to avoid undue delays if possible.
New information presented at a Student Allowance Review Hearing
The Secretary must ensure that each party has time to consider any new material,
and if necessary an adjournment should be granted for later that day or another
Hearing date set. It is important that the Secretary gives both parties a reasonable
opportunity to respond to any new information before the Secretary takes account of
that new information in their decision making process.
Additional information required for the Secretary to make a decision
If the Secretary requires further information, the Review Panel may adjourn and
request further information from the Ministry or the applicant (or both). They may also
seek submissions on any aspect of the law. If they do this, both parties will be asked
to provide submissions. Such an adjournment may occur while the Review Panel is
still present at the Hearing or after they have left. If it is after they have left the
Hearing, the Secretary will write to both the Ministry and the applicant (via the Co-
ordinator) requesting the further information and setting down a date for the
information to be provided. The Secretary has discretion on whether the hearing will
need to be reconvened. If a hearing is required, the co-ordinator will arrange this to
take place after the evidence deadline. The Secretary will decide whether or not the
applicant and the Ministry will need to attend if the Hearing is reconvened.
16
New information provided after the hearing but before the decision has been
sent to the applicant and the Ministry
If new information relating to the decision under review is received, the Secretary
needs to consider whether the information would change the decision. Both parties
need to be given the opportunity to respond in writing regarding the new information
and the Review Panel may need to reconvene if the Secretary needs to take further
advice. The information must be included in the
Report of the Secretary. The co-
ordinator undertakes the responsibilities of disseminating information to all relevant
parties.
New information provided after the decision has been made and the findings
have been sent out to the Applicant in the Report of the Secretary
If new information relating to the decision under review is received that could change
the decision to the advantage of the applicant it should be sent to the site that made
the original decision to consider, under section 305 (1) if the Education Act 1989. If
the new information does not change the decision the applicant needs to be advised
why and provided information regarding the option of lodging an appeal to the
Student Allowance Appeal Authority.
If new information is presented which may change the decision of the Secretary to
the detriment of the applicant, it must relate to a material change of circumstances
as opposed to information that could or should have been presented to the Review
Panel at the time of the Hearing (see High Court case
Hamidi). The Ministry has no
right of appeal from the Secretary.
If you are unsure about whether the information is a change of circumstances or not,
please refer to the report writer’s manager who will seek legal advice if appropriate.
The co-ordinator undertakes the responsibilities of disseminating information to all
relevant parties.
Personal Representations
The applicant may appear in person at the Hearing of their review, or have an agent
or advocate appear on their behalf.
If the applicant chooses to appear then the Ministry should also appear, along with
the 2 panel members advising the Secretary. If the applicant chooses not to appear,
and not to have an advocate appear on their behalf at the Hearing then the Ministry
cannot appear. The review is decided “on papers” only (i.e. based on the report and
attachments from the Ministry and any written submissions from the applicant and
information if their involvement is consented to).
However, if the issue is one of credibility and the Secretary does not consider it can
properly determine it without seeing the applicant in person, then the Secretary
should consider adjourning the Hearing and requesting the applicant to attend the
Hearing.
The applicant cannot be made to attend. If the applicant declines the invitation then
the Secretary must decide the case on the evidence before them. There should not
be any adverse opinion about the case based on the applicant’s failure or refusal to
attend.
17
Hearing the review via teleconference/video conference or in person
In the first instance, it is the Ministry’s preference for Hearings to occur via video
conference. All delegated Secretaries are located in Palmerston North so if the
applicant is able to attend there in person, the hearing can easily occur in person. If
any parties are located anywhere else, then video-conferencing (or tele-conferencing
as a last resort) facilities can accommodate that. In either instance, the Co-ordinator
will need to arrange a room for the hearing that has the appropriate facilities
available. The Co-ordinator will be responsible for ensuring that technical support is
available at sites to ensure smooth commencement of a video-conferenced hearing It
is preferred that one other MSD participant in the Hearing process is present at the
same site as any non-MSD participant.
If there is a particular need for an in-person hearing to occur in a location other than
Palmerston North, the reasons could be taken into consideration. The Co-ordinator
will make appropriate arrangements with all parties in these circumstances.
Hearing the review on papers
If the applicant does not wish to attend the Hearing, or fails to attend, the Review
Panel hears a paper-based review only (i.e. no verbal submissions are made to the
Review Panel by the applicant, their agent, or the Ministry).
Further written submissions provided by the applicant or the Ministry, in addition to
the
Report of the Secretary, may be given to the Review Panel to consider. A copy of
any further information provided must be given to all parties involved in the review.
The Ministry presenter should always be on stand-by, ready to appear and present
the Ministry’s case should the applicant decide to appear at the last minute.
Resources available to the Student Allowance Review Panel to assist the
Secretary making a decision
The Review Panel must not directly contact the Ministry’s legal advisors. This is
because they act for the Ministry and therefore it would be a conflict of interest for
them to provide legal advice directly to the review panel. If the review panel is unsure
of a legal point, e.g. the proper interpretation of a section of the Regulations, then
they should call for legal submissions on that point from the applicant and/or the
Ministry.
The review panel members are not to access the applicant’s record. If they do not
have sufficient information or need an aspect of the case clarified, they should
instead ask the Report Writer or other Ministry staff (this could be the Ministry
presenter) to investigate any further information from the applicant’s file.
Hearing Procedure
Applicant fails to attend or chooses not to attend
If the applicant chooses not to, or fails to attend, the review is held on papers only.
This review on papers will only include the particular NZUSA Panel Advisor if the
applicant has given written consent to their inclusion. If written consent has not been
given, the review will be considered by the Secretary only. If this occurs, all other
panel members and the Ministry presenter do not have any involvement.
18
NZUSA Panel Advisor – non consent
If the applicant does not provide written consent for a NZUSA Panel Advisor the
review will be considered by the Secretary alone either in person or on papers. If the
applicant does not consent to a particular NZUSA Panel Advisor being involved then
another one should be arranged where possible.
Disqualification of panel member
Neither the Secretary nor the two panel advisors can hear a case if they have:
•
a direct financial or personal interest in the outcome
•
had any prior involvement in the case
•
some personal connection with the applicant, presenter or witness(es) – apart
from working relationships
•
a personal prejudice for or against a person(s) involved in the case
•
pre-decided the case and come to it with a closed mind.
A member must withdraw from the Review Panel Hearing if any of the above criteria
apply to them.
It is important that the Review Panel consider any involvement with the case when
considering disqualification. This may cause difficulties, however it is important that
the integrity of the Review Panel is maintained.
Tone of hearing
The Review Panel can set its own process. The Review Panel must clearly state the
process for the Hearing to each person present at the Hearing. The process adopted
must be fair and reasonable. The Secretary must also set a process for both the
Ministry and the applicant to respond to points raised by either party in their
submissions, if they want to.
It is usual practice for the Ministry to present first to the Review Panel as the Ministry
has written the report, which everyone should have a copy of, and the Review Panel
only need to summarise their understanding of the facts and issues of the case, and
question the Ministry on any issues they have.
The Hearing is an informal procedure. There is no “right” of cross-examination.
Where the applicant seeks clarification of the report or aspects of the decision these
should be put to the Ministry to answer. Likewise, in some cases it will be appropriate
for the Ministry presenter to question the applicant directly or through the Review
Panel, particularly if the applicant presents new information at the Hearing.
The Secretary sets the process and if necessary can set rules for such interchanges
between the applicant and the Ministry – so long as they comply with the rules of
natural justice.
Any questions the Secretary may have that need to be followed up are the
responsibility of the Ministry; the Secretary must not seek this information
themselves.
19
Disruption
The Review Panel can impose reasonable rules for the conduct of the Hearing itself.
If a person is unreasonably disrupting the process of the Hearing or behaving
inappropriately, the Secretary has the ability to request that the person leave the
Hearing. A person behaving in such a manner should initially be warned that they will
be invited to leave the Hearing if such behaviour continues.
It is suggested that the Secretary may in the first instance, where a warning has been
given, adjourn for 30 minutes to enable the person(s) to regain their composure. If
after such a break the person continues to be unreasonable, or behave
inappropriately the Secretary should politely request that the individual leave the
Hearing.
The Hearing should continue on the material that the review panel has before them.
Record of hearing
Review Panel members are responsible for taking their own notes, although one
person may be elected to take more in-depth notes or minutes (see appendix 1).
For more complex cases the Secretary may deem that an independent minute taker
is required.
At the end of each case heard the minute taker must confirm with the wider review
panel what the key consideration/s on each point was. Review panel members
should initial each page of the minutes at the end of the hearing in acknowledgement
that they are a fair and accurate reflection of what was said at the hearing.
What is evidence?
Evidence is anything the Review Panel chooses to listen to or read whilst considering
the case before it. The mere fact that certain "evidence" is provided to the Review
Panel does not mean that it is true, relevant or correct in fact or law. It is the Review
Panel’s role to consider all evidence and then the Secretary alone will make a
decision. Some areas to keep in mind when considering evidence are:
•
Credibility
People making statements to the Review Panel may be telling the truth, part
truths, lies or otherwise, and you must decide whether you believe the
statements being made are true or not.
There are no strict rules on how to determine that a person’s evidence is
credible, but the following factors will be relevant:
–
prior inconsistent statements This is where a person makes one statement to one person and later
contradicts that statement, particularly where the contradictory
statement/s appear to have been made to gain monetary benefit.
–
multiple explanations This is where someone makes a statement and then subsequently varies
the statement to make it more advantageous for them.
20
–
lies Where a person giving evidence is shown to be telling a lie/s, then that
person's credibility should be questioned. It is not necessary for the lie/s
to be directly related to the specific facts giving rise to the issues before
the Review Panel.
•
Inferences
An inference is a conclusion that can reasonably be drawn from facts
previously established.
•
Standard of Proof
The standard of proof at the Hearing is the “balance of probabilities”. This
means that if the Review Panel can say that “we think it’s more probable than
not” that something occurred, then that is sufficient to prove a fact. For example
if the applicant claims that they telephoned the Ministry to ask that their
Allowance be cancelled, then the Review Panel need to be satisfied that it was
more probable than not, that this occurred. If that is the case, then it has been
established as a fact that the applicant telephoned the Ministry.
This differs from the standard of proof in a criminal trial, where evidence needs
to be established beyond reasonable doubt. The beyond reasonable doubt test
is a much higher threshold than the balance of probabilities one.
•
Weight of Evidence
Some evidence will be stronger or more compelling than other evidence. This is
called the weight of the evidence and the Review Panel must consider what
weight should be given to any particular piece of evidence.
Much of the weighting will turn on the individual piece of evidence and the facts
of the case, but there are some categories to watch for:
–
Relevance You must consider whether the evidence is relevant to the issue being
decided. The legislative provisions you are dealing with will generally
prescribe the relevance of evidence.
However, it should also be remembered that whilst evidence may be
irrelevant to the decision to be made, that should not preclude you (within
the bounds of common-sense and reasonableness) to listening to such
evidence because:
– the applicant should be able to put all their concerns to you; and
– whilst evidence might not be relevant to one area of law, it may be
relevant to finding eligibility or entitlement under another legislative
provision.
For example, whether an applicant’s partner has residency or not is
irrelevant to the issue of entitlement to a Student Allowance but the
residency issue may affect other eligibility or entitlements such as an
Accommodation Supplement.
21
•
Best evidence
The best evidence should be presented to the Review Panel. In other words,
the Review Panel should see and hear the person with personal knowledge of
the facts being alleged by that person and not by having an advocate make
statements on behalf of people who are absent. If the person with the personal
knowledge is not present, then it is likely that there can be less weight given to
any evidence presented on behalf of that person in written form.
However, the Review Panel is unable to summons any witness to give
evidence before it. For this reason, any appearance by any witness must be
with their consent.
Non-appearance may be for some other justified reason, other than the
avoidance of cross-examination (eg the refusal of an employer to allow an
employee time off work) and this should be considered by the Review Panel in
evaluating the evidence. The fact that the person has a good reason not to give
evidence does not make their evidence any more or less credible or reliable.
•
Documentary evidence
This is written evidence such as letters, computer records, dockets,
declarations etc. The mere fact that there is something in writing does not
automatically mean that the document records a true statement. For instance,
when a statement is made in the form of an affidavit or declaration, the
statement cannot be accepted as being true merely because it is in writing or
by reason that it is sworn.
–
Opinion A person's opinion will generally count for little, except where the person
giving the opinion is an expert. An expert is someone with recognised
practical experience or qualifications in a particular field. Obviously, even
where someone is accepted as being expert in a particular field, this does
not mean that their evidence should be accepted un-critically, but that
more weight should be given to that evidence than evidence given by a
non-expert.
– C
orroboration
This means that the evidence presented about a particular fact is
confirmed by other evidence from an alternative, un-related source.
•
Motive
People giving evidence will always have a motive or reason for giving that
evidence, from a law-abiding citizen performing a civic duty to a person driven
by malice against the applicant. The motive of the person giving evidence must
be acknowledged and evaluated when considering the weight and credibility of
that evidence.
22
Decisions
Making Decisions
The Secretary may adjourn the hearing to allow the Ministry or the applicant to
source further information. This may be a brief adjournment during the hearing or
may require the panel to reconvene on another day.
If required, the Secretary is able to seek legal advice from the Ministry. This is
sought through written request, from the Secretary (or Co-ordinator) to the report
writer’s manager.
Once the Review Panel is satisfied that it has all relevant information regarding a
case the Advisors can give their opinions and basis for those to the Secretary, and
the Secretary can make a decision. Neither the applicant nor the Ministry presenter
should be present when the Review Panel discusses the case and the Secretary
reaches their decision.
Available Decisions
Once a Review of Decision has been heard and all submissions considered, the
Secretary will decide the outcome of the review. The Secretary can decide to:
•
uphold the decision
•
uphold the decision in part
•
overturn the decision.
Generally, the Review Panel should discuss the case and the Secretary makes a
decision after the conclusion of the Hearing (i.e. after the applicant or presenter(s)
have left). The Secretary will then write up their decision.
If the Secretary decides to overturn (revoke), or uphold in part (vary) the original
decision, instructions will be given as to what action the Ministry needs to take as a
result of the Hearing, with a set time frame. The Secretary will document the
expected outcomes and notify the applicant and the Ministry in writing of this
decision. It will then be the Ministry’s responsibility to ensure that the required actions
are taken.
If further matters are raised that the Secretary feels needs to be addressed outside of
the decision being reviewed, the Secretary can make a comment and recommend
that the Ministry consider the issue(s).
Consideration of Natural Justice and Administrative Law
Administrative law can be summarised as requiring you to make a
fair decision in a
fair manner. The application of administrative law principles will be determined by the
individual circumstances of each case but the principles will apply in all cases.
When making decisions the Secretary needs to consider the following:
•
Illegality
This refers to a situation where the decision maker got the law wrong, usually
regarding the correct interpretation of the legislation and the scope of their
23
power under that legislation. The Secretary is acting outside the scope of their
powers if they (among other things):
–
make a decision for a purpose other than that set out in the legislation;
–
fail to take account of all relevant matters or take account of irrelevant
matters;
–
get the facts significantly wrong;
–
strictly apply a pre-set policy without taking account of the individual facts
of the case (policy should be used as a guideline and not treated as
absolute).
–
allow someone else to make the decision for the Secretary;
–
make a decision for which the Secretary has no proper lawful delegation;
–
make a decision for which the Secretary has no lawful power or authority.
•
Unreasonableness
The Secretary must not make such an unreasonable decision or come to such
an unreasonable finding that no reasonable person could have made that
finding, having regard to the specific provisions and intention of the legislation
and the facts of the case. Unreasonableness will be a question of fact in each
case and requires careful consideration.
•
Unfairness
This relates to a fair procedure. This obligation to be fair will involve:
–
giving full and fair notice of the issues to be considered, the evidence for
and against the applicant, and the law that will be taken into account in
making the decision;
–
such notice being given in sufficient time to allow the applicant to
adequately prepare for the Hearing (and to ensure they understand any
consequences of not appearing at the Hearing);
–
giving the applicant an opportunity to make representations to the Review
Panel and for those representations to be to properly considered;
–
avoiding undue and unreasonable delay;
–
giving full and detailed reasons for each point raised (eg what was
considered and what wasn’t) and discussed and how they contributed to
the decision made.
•
Consistency
The decision must be consistent with the law, prior statements,
representations, policy etc, although the outcomes may differ by reason of the
individual facts.
Roles and Responsibilities
MSD Presenter’s role
If the applicant is attending the Hearing, a Ministry representative will attend in the
role of Presenter. The presenter will state the Ministry’s position in the Hearing. This
person is not a member of the Review Panel.
The presenter needs to have reviewed the applicant’s file and summarise the
decision the Review Panel is about to hear. The presenter will need to know the
relevant facts, the application of the relevant legislation, and the Ministry’s initial
position on the decision under review. It is recommended that the presenter contact
the report writer to discuss the case ahead of the Hearing.
24
It is usual practice for the Ministry to present first to the Review Panel as the Ministry
has written the report. The Review Panel may ask questions. If it is necessary for the
Presenter to take leave to source this information, the hearing will need to be
adjourned while this takes place. The Presenter may need to contact the report writer
for this information.
The Hearing is an informal procedure. There is no “right” of cross-examination.
Where the applicant seeks clarification of the report or aspects of the decision, these
should be put to the Ministry to answer. Likewise, in some cases it will be appropriate
for the Ministry presenter to question the applicant directly or through the Review
Panel, particularly if the applicant presents new information at the Hearing.
The Secretary sets the process and if necessary can set rules for such interchanges
between the applicant and the Ministry – so long as they comply with the rules of
natural justice.
Panel Advisors’ role
The two Panel Advisors are not there to represent the applicant in any capacity, but
to use their knowledge and experience to provide perspective, advice, and
information relevant to the case being heard.
During the Hearing the Panel Advisors have every right to ask for clarification or
more information from the applicant or Ministry presenter.
They will be involved in the deliberations leading to the decision. They will be asked
to express their views and these will be noted in the Student Allowance Review
report.
The Panel Advisors will not be involved in the actual decision making process. The
Secretary alone will make the decision.
Chairperson’s Guide
Chairperson’s Role
The Secretary will assume the role of the Chairperson in a Hearing. It is the
Chairperson’s responsibility to take the lead in explaining the Hearing process to all
attendees and ensuring the final decision report is completed within the appropriate
timeframes.
Please note that this guide is based on a process where the Ministry will present their
case first. This does not restrict the way in which the Chairperson may chose to run
their Hearing in any way.
•
Ensure all of the Review Panel is happy with and clear about the chosen
process
•
Collect the applicant, Ministry Presenter and any support people from the
waiting area if any participants are physically attending. Alternatively, ensure
that all VC facilities have connected to the Hearing
•
Introduce themselves and advise that they will be fulfilling the role of
Chairperson.
•
Take the lead in facilitating introductions of all other participants.
25
Introduction (explain):
The Review Panel:
•
This Review Panel is made up of the Secretary (yourself) and two advisors.
One advisor is from the Ministry of Social Development and the other is a
NZUSA Panel Advisor.
•
The two advisors do not take part in the final decision making. They are there
to provide advice to yourself (the Secretary).
•
The Review Panel will be objective and have had no involvement in any way
with the decision being reviewed.
•
The Review Panel will have a fresh look at the decision and ensure a fair and
impartial outcome.
The process is:
•
Independent and less formal than a court hearing
•
No one is under oath, but I ask that we all enter into the spirit of the Hearing so
that I (the Secretary) am able to make a fair and reasonable decision
•
The Ministry will present their case first and then the applicant will have an
opportunity to explain their reasons for the review
•
The Review Panel may ask questions of both parties. All questions are to go
through me (the Secretary, as chairperson)
When you begin:
•
Ask the Applicant whether the report has been read and understood. If so
there will be no need for a verbatim account. An overview of the Summary of
Facts and the Case for the Ministry will probably be sufficient
•
Invite the Ministry presenter to present first
•
If the applicant is not familiar with the content it is suggested the presenter go
into more detail and ensures their material is presented in such a way that non-
Ministry staff will have a clear understanding
•
Invite the applicant to advise the Review Panel (if they are present), why they
are reviewing the decision
•
The Secretary may wish to fully explain the legal constraints and requirements
to the applicant and ask the applicant to comment on how he or she meets
each specific requirement during the hearing.
Invite the Review Panel to ask any questions. This is the opportunity to seek
clarification of any points that have been raised in the hearing. This may be for the
benefit of anyone at the hearing.
When concluding:
•
Ask:
Any closing comments?
•
Advise:
No verbal decision will be made. A written decision will be provided as
soon as practicable, usually within five working days.
•
Advise:
If you are not satisfied with the outcome of my (the Secretary’s)
decision you have the right of appeal to the Student Allowance Appeal
Authority. If you wish to appeal the decision, you must make this application in
writing to the Authority within 21 days of receiving the panel’s decision, unless
the Authority allows you a longer period. Further details of this will be provided
with the written decision.
26
Management of the Report to the Secretary
•
The Secretary (or Ministry staff member for VC attendees at other sites (to be
organised by the Co-ordinator) is responsible for collecting all copies of the
Report to the Secretary from each Review Panel member, including the
presenter, and ensuring all copies are destroyed appropriately.
•
When the Secretary makes a decision, all supporting documentation should be
stored on the applicant’s file and should not be destroyed unless it is a copy.
This includes any notes taken during the Hearing.
•
Review Panel members should not take documents home with them, as these
will contain the client’s personal information. The Ministry has an obligation
under the
Privacy Act 1993 to store personal information securely.
•
It is recognised that Review Panel members, particularly the NZUSA Panel
Advisors, may want to keep copies of decisions at home for reference purposes
once a decision has been made. If Review Panel members wish to do this, they
should ask the Co-ordinator to arrange for a copy to be provided for the Review
Panel member which has identifying details of the client removed.
Post presentation Decision Making
The Secretary’s decision is taken in confidence, and neither the applicant nor the
presenter is present when a decision is reached. It is important that the Secretary
only considers the decision in front of them. Should the Hearing raise issues of
additional entitlement or ineligibility, these should be referred back to the Ministry.
A Secretary or Ministry Panel Advisor is not acting as a representative of the Ministry.
The issue of independence is very important and panel members must act openly
and fairly and in accordance with the law.
It is important that Review Panel members understand the difference between law
and policy. The function of the Review Panel primarily is to check the law has been
correctly applied. Policy is the Ministry’s interpretation of the law and how it should
be applied.
This means that the Secretary should:
• check to ensure that the applicable legislation from the time of the original
decision is being applied,
• identify and understand the requirements of the legislation. For example,
considering whether the disputed decision was the result of an error made by the
Ministry,
• consider all the options available to the applicant,
• decide whether the applicant meets which if any, of the specific legislative
provisions you are dealing with. Avoid concentrating on one issue. Look at the
case in a holistic way,
• if necessary, use prior Student Allowance Appeal Authority decisions to assist in
deciding a particular case. However, such decisions must be considered
carefully. If they are made solely on an applicant’s particular circumstances then
you must compare the applicant’s circumstances with those of the appellant’s,
• act within the law.
27
Who writes the Secretary report
The Secretary has the responsibility to complete the final report (Report of the
Secretary) and it is their obligation to provide full written reasons for the decision. It is
the Co-ordinator’s responsibility to ensure the applicant receives the completed
report in a timely manner.
Writing up the Report of the Secretary
The report sets out the deliberations of the Secretary, their reasoning and their
decisions on all points raised. It requires that:
•
both the applicant’s case and the case of the Ministry needs to be fairly
represented in the final report (The final report should not be restricted to a “cut
and paste” of the
Report to the Secretary);
•
the final report needs to fully explain to the applicant the reasons for the
decision made by the Secretary. “Full reasons” does not mean a short bullet
point list. The applicant should see that their arguments have been considered
and addressed (discounted or weighted heavily), and should be able to
understand the basis for the Secretary’s decision;
•
where the Secretary makes reference to legislation or policy in the final
decision, that the legislation or policy is referred to and may also be quoted or
attached to the report. Where policy is departed from, reasons for this decision
need to be explained.
It is important that the Secretary only makes decisions based on the Review being
heard. Should the Hearing raise issues of additional entitlement or ineligibility, these
should be referred back to the Ministry as a recommendation within the Secretary’s
findings.
A guide template of the
Report of the Secretary is included as Appendix 3.
The
Student Allowance Review Hearing Notes (Appendix 1) has been developed to
assist the Secretary in ensuring that their decision is documented fully and that all
arguments presented have been considered and responded to.
The Secretary must sign the final report as being a record of the decision made and
provide this to the Co-ordinator. A copy of the report and an outcome letter is then
sent to the applicant by the Co-ordinator and a copy of the letter and the original
report is given to the Ministry.
If the decision is not in the applicant’s favour, (or only partially favourable), the
applicant will be informed in writing of their right to appeal to the Student Allowance
Appeal Authority.
The completed and signed report must be sent to the applicant (ideally) within five
days of the conclusion of the hearing, so it is important to get the report to the Co-
ordinator within that five days.
Any follow up required by the Ministry should be time framed by the Secretary.
Appeal rights after a Student Allowance Review Hearing
An applicant can appeal their case to the Student Allowance Appeal Authority if they
are not happy with the decision made by the Secretary. If the review has been heard
by a Review Panel and the applicant is still unhappy with the decision, they can only
appeal the decision to the Student Allowance Appeal Authority.
28
The applicant must lodge their request for an Appeal in writing and within 21 days
(The Authority may accept appeals lodged after this time). This Appeal is heard on
papers only.
The Ministry cannot Appeal or review the decision of the Secretary.
29
Appendix 1: Student Allowance Review Hearing Notes
Student Allowance Review
Hearing Notes
Applicant’s
Client number:
Name:
Review Panel:
Secretary
MSD
Advisor
NZUSA
Advisor
Date:
Attendees for the Applicant:
Attendees for the Ministry:
1. Key Legislation:
2. Key Facts:
•
Applicant
•
Ministry
3. Feedback to Site (if applicable):
4. Notes:
Upheld
Upheld in Part
Overturned
5. Attached to Report:
30
Appendix 2: Secretary’s Decision Checklist
Applicant’s Details
Applicant Name:
Client Number:
Hearing Date:
Hearing Adjourned: Yes No
Next Hearing Date
Secretary:
Scribe/Note Taker:
Law and Policy
Has the applicable legislation been applied?
Have you used SAAA decisions to assist you in deciding the case?
Does the Applicant meet ANY of the specific legislative provisions that
are under review?
Have you considered the case in a holistic way?
Options Considered
Have you considered all options available to the Applicant?
Case Presented
Have you taken into consideration ALL points raised by the Applicant?
Have you considered ALL points raised by the Ministry?
Have these points been documented in the notes of the meeting?
Findings
Did you provide clear reasons for your decision?
Do the facts support your decision?
Have you responded to all the points raised from both parties?
Are your findings and any instructions for the implementation of a
decision clear?
eg If you have instructed that Student Allowance be approved, have
you stated what date to approve from?
Is the decision lawful?
31
Administration
Has the Secretary signed the report?
Signed
Secretary:
____________________________
________________________
Print
Sign
32
Appendix 3: Report of the Secretary
IN THE MATTER
of the Education Act 1989
and the Student
Allowances Regulations
1998
AND
IN THE MATTER
of an application for
Review by:
(“the Applicant”)
[Name]
[Address]
[Address]
of a student allowance
decision of
The Ministry of Social
Development (“the
Ministry”)
REPORT OF THE SECRETARY
SECTION 305(2) OF THE EDUCATION ACT 1989
(AT A STUDENT ALLOWANCE REVIEW HEARING)
STUDENT ALLOWANCE REVIEW PANEL
The Secretary:
[Name]
Advisors to the Secretary:
Ministry of Social Development staff member:
[Name]
New Zealand Union of Students’ Associations member:
[Name]
HEARING CONVENED AT
[MSD site Secretary located at]
[Address]
[Address]
HEARING DATE
[Date] at [Time]
33
THE RELEVANT LAW AND POLICY
Refer to and summarise relevant legislation and policy, attach legislative provisions if
appropriate
CASE FOR THE APPLICANT
Summarise the applicant’s case and submissions to the Secretary. Ensure you
consider all points raised by the applicant and their representative if they also
attended. Refer to all documents and information that the applicant has provided. All
documents provided by the applicant should be attached and referred to where
appropriate here. Also include the applicant’s response to the Ministry’s arguments.
CASE FOR THE MINISTRY OF SOCIAL DEVELOPMENT
Summarise the Ministry’s position. This may be copied and pasted from the report to
the Secretary. Add in any other matters raised by the Ministry at the Hearing,
including the Ministry’s reply to the applicant’s submissions. Also any response from
the Ministry Presenter in reply to subsequent submissions made on paper by the
applicant
COMMENTS BY ADVISORS TO THE SECRETARY
Detail any comments by the MSD Advisor Detail any comments by New Zealand Union of Students’ Associations Advisor
FINDINGS
The Secretary considered all the information that was presented.
In this section, please set out the following:
•
Respond to each point raised by each party
•
Take into account comments made by the Panel Advisors to the Secretary
•
Provide the decision the Secretary came to
•
Provide clear reasons for the decision including any weighting given to why
something has been considered or discounted
•
Ensure the facts and relevant legislation support the decision
•
Make any instructions for the implementation of the decision clear
35
DECISION
Delete what is not applicable
The Secretary agreed to confirm the original decision.
or
The Secretary agreed to substitute the original decision with a decision to…
The Student Allowance decision is confirmed or substituted.
Name
The Secretary
Date
(Acting under the delegation of the Chief Executive of
the Ministry of Social Development)
36
Appendix 4: Glossary of terms
Legislation
Includes:
•
Any law passed by parliament. This is called an Act or statute
•
Any law made by a subordinate body, such as a Minister, under delegation
from Parliament – such as Regulations, Ministerial Directions and Welfare
Programmes.
Note: An Act before it is passed by Parliament is called a Bill.
Policy
Policy has two parts:
•
Policy made by governments. In the Ministry we call this sector policy.
Governments will introduce legislation to give effect to their policies in law
•
Policy made after a law is passed, which provides guidance to employees of a
government department on how to apply the law. In the Ministry we call this
operational policy. This sort of policy is only a particular government
department’s view of how the law should be applied. It does not have legal
force and should not be applied if it is inconsistent with the law.
As a case manager and as a Student Allowance Review Panel member you will be
dealing with operational policy.
MAP
MAP stands for Manuals and Procedures.
MAP contains The Ministry’s policies on how to apply legislation – primarily the
Student Allowances Regulations 1998
Judiciary
The branch of the state that decides disputes between parties independently and in
accordance with the law – e.g. Judges and tribunal members.
Student Allowance Appeal Authority (SAAA)
The Student Allowance Appeal Authority is established by section 304 of the
Education Act 1989, and comprises one person, appointed by the Minister of Social
Development and Employment. The function of the SAAA is to hear and determine
appeals made in accordance with the provisions of the Education Act 1989, which
have been through the review process.
Jurisdiction
Relates to the ability of the Review Panel to hear and advise the Secretary who will
make a decision on a matter before them. For example, a Secretary may not make a
decision on a matter that has already been heard and determined by a previous
Secretary. They may also not make a determination that the Ministry complete any
action that is outside the scope of their legislated power.
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Appendix 5: Relevant Legislation
Education Act 1989
Part 25
305
Appeals
(1)
This subsection applies to every decision under this Act (being a decision that
the person or body making it had power to make in some other way)—
(a)
Fixing the amount of any allowance; or
(b)
Declining to award an allowance to any person; or
(c)
Approving as a full-time programme for any person in any year any
specified part of a course of study; or
(d)
Refusing to approve as a full-time programme in any year any part of
a course of study for any person; or
(e)
Refusing to extend the period in respect of which any person may
receive payments under any allowance; or
(f)
Refusing to recognise the amount of work passed in any year by any
person as being sufficient to entitle the person to the reinstatement of
any allowance; or
(g)
Refusing to recognise any qualification or amount of work gained or
passed by any person as being equivalent to any other qualification or
amount of work.
(2)
Where any person enrolled or intending to enrol at a tertiary institution is
aggrieved by a decision to which subsection (1) of this section applies, being
a decision the making of which has been delegated to an employee of the
Ministry by the Secretary, that person may request the Secretary to review
that decision; and in that case the Secretary shall review that decision and
shall either—
(a)
Confirm it; or
(b)
Substitute for it any other decision that the person or body that made it
might have made.
(2A)
An application for a review under subsection (2) must be brought within 3
months after the person receives notification of the decision, or (if the
Secretary considers there is good reason for the delay) within such further
period as the Secretary may allow on application made either before or after
the expiration of that period of 3 months.
(3)
Where any person is aggrieved by—
(a)
The decision by the Secretary under subsection (2)(a) of this section
to confirm any decision relating to the person; or
(b)
Any decision relating to the person substituted by the Secretary under
subsection (2)(b) of this section for any other decision; or
(c)
Any decision relating to the person made by the Secretary [(other than
by an employee of the Ministry under delegation)] to which subsection
(1) of this section applies—
the person may appeal against the decision; and in that case the authority
shall consider the appeal and, in the light of all the circumstances it considers
relevant, shall either—
(d)
Confirm the decision; or
(e)
Substitute for it any other decision that the Secretary might have
made,—
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and the confirmation or decision shall have effect as if it were the decision of
the Secretary.
(4)
Every decision of the authority shall be accompanied by written reasons for it.
(5) When substituting for any decision of the Secretary any other decision that
the Secretary might have made, the authority may (if it thinks that in all the
circumstances to do so would be appropriate) require the Secretary to pay a
sum fixed by the authority, being all or part of the costs incurred by the
authority in hearing the appeal; and in that case the Secretary shall cause that
sum to be paid to the [[chief executive of the Ministry of Justice.
Student Allowances Regulations 1998
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Lodging of appeals
(1)
Every appeal must be by notice in writing lodged with the Authority within 21
days after the decision appealed against, or such longer period as the
Authority in any case allows.
(2)
Every such notice must—
(a)
Be signed by the appellant or a person authorised by the appellant to
act on his or her behalf; and
(b)
Specify the decision appealed against; and
(c)
Provide an address for the sending of communications in connection
with the appeal.
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Relevant chief executive or Minister of Education to be given copies of
notices of appeal
(1)
Immediately after the lodgement of a notice of appeal, the Authority must
send a copy of that notice to the chief executive of the department of State
who made the decision appealed against, or to the Minister of Education, if
that Minister made the decision appealed against.
(2)
As soon as possible after receiving a copy of any notice of appeal, the
relevant chief executive, or the Minister of Education, as the case may
require, must send to the Authority—
(a)
All applications, documents, written submissions, statements, reports,
and other papers relating to the decision appealed against, that are in
the possession or under the control of the relevant chief executive, or
the Minister of Education; and
(b)
A copy of the decision appealed against; and
(c)
A report setting out the matters to which the relevant chief executive
or the Minister of Education had regard in making the decision
appealed against; and
(d)
A statement of any other matters that the relevant chief executive or
the Minister of Education wishes to draw to the attention of the
Authority.
(3)
Immediately after receiving a report under subclause (2)(c), the Authority
must send a copy of it, and of any statement under subclause (2)(d), to the
appellant concerned.
(4)
An appellant may send to the Authority—
(a)
Any comments the appellant has on the report, and on any statement,
a copy of which has been sent to the appellant under subclause (3); or
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(b)
Notice that the appellant wishes to discontinue the appeal; and, in that
case, the appeal will be discontinued.
(5)
The Authority must not determine any appeal until the expiration of 14 days
after the date on which a copy of the report under subclause (2)(c) was sent
to the appellant.
(6)
Where, before an appeal is decided, the Authority receives from the appellant
comments sent to the Authority under subclause (4)(a),—
(a)
The Authority must immediately send a copy to the relevant chief
executive or to the Minister of Education, as the case may require,
who, as soon as possible, must send to the Authority either any
comments he or she wishes to make on those comments or a new
decision; and
(b)
The Authority must not determine the appeal concerned until the
expiration of 14 days after the date on which the copy was sent to the
relevant chief executive or to the Minister of Education, as the case
may require.
(7)
Where, under subclause (6)(a), the relevant chief executive or the Minister of
Education sends the Authority a new decision,—
(a)
He or she must also send a copy to the appellant; and
(b)
Without affecting the appellant's right to appeal against the new
decision, the appeal against the old decision is considered to have
been discontinued.
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Evidence
(1)
The Authority has full discretionary power to request further written evidence
from any appellant on questions of fact, and may require any such evidence
to be verified by statutory declaration.
(2)
In the exercise of its powers the Authority may receive as evidence any
statement, document, information, or matter that, in its opinion, may assist it
to deal with any matter before it, whether or not the same would be
admissible in a court of law.
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Matters to which Authority to have regard
(1)
In reaching any decision, the Authority must have regard to—
(a)
The notice of appeal concerned; and
(b)
All documents sent to the authority under regulation 37(2) or (4) or (6);
and
(c)
All evidence received by it—
whether or not that notice, those documents, or that evidence, or any part of it
or them, would be admissible in a court of law.
(2) On the determination of an appeal, the Authority must notify the chief
executive and the appellant, in writing, of the Authority's decision and the
reasons for it.
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