Contents
Contents ............................................................................................................. 2
Introduction ........................................................................................................ 1
Overview ............................................................................................................ 1
Co-ordinator Responsibilities ................................................................................. 1
Regional Co-ordinators ......................................................................................... 1
Site/Area Co-ordinators ........................................................................................ 2
Benefit Review Hearing Process.............................................................................. 3
The Co-ordinators Process ..................................................................................... 4
Administration ..................................................................................................... 5
Letters, Templates & Guides .................................................................................. 5
Letterhead .......................................................................................................... 5
Client Representatives/Solicitors/Agents & support people ......................................... 5
Clients experiencing mental health issues ................................................................ 5
Trespassed Clients ............................................................................................... 6
Remote Client Unit ............................................................................................... 6
Timeliness Standards............................................................................................ 6
QA Process/Report Checking .................................................................................. 6
Escalation of Issues .............................................................................................. 6
Schedules ........................................................................................................... 7
Legal Information ................................................................................................ 8
Can the BRC review the decision? ........................................................................... 8
Already Heard by the Committee ......................................................................... 8
Exceptions ....................................................................................................... 8
Fundamental Breaches of Natural Justice .............................................................. 8
Hearing types .................................................................................................... 10
Out of Time Reviews .......................................................................................... 10
Out of time Internal Review .............................................................................. 10
Out of time report to the BRC ........................................................................... 10
Out of time BRC decision .................................................................................. 11
Jurisdiction ....................................................................................................... 11
Prosecution ....................................................................................................... 11
Panels .............................................................................................................. 12
Panel Makeup .................................................................................................... 12
Community Representatives ................................................................................ 12
Availability ..................................................................................................... 12
Appointment Process ....................................................................................... 12
Rate of Payment for Community Representatives ................................................. 12
Paying Community Representatives ................................................................... 13
Changes in Circumstances ................................................................................ 13
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The Hearing ...................................................................................................... 14
Setting up ......................................................................................................... 14
Notes ............................................................................................................... 14
Process for postponements .................................................................................. 14
Adjournments .................................................................................................... 15
New information ................................................................................................ 15
New information provided when the applicant applies for an ROD ........................... 15
New information provided prior to the BRC ......................................................... 15
New information presented at a BRC .................................................................. 16
Additional information required for the BRC to make a decision .............................. 16
New information provided after the hearing but before decision sent to the applicant
and the Ministry .............................................................................................. 16
New information provided after hearing and decision has been sent to applicant and
Ministry ......................................................................................................... 16
Hearing the review on papers............................................................................ 16
Decisions .......................................................................................................... 17
Making Decisions ............................................................................................... 17
Split decisions ................................................................................................... 17
Writing the Decision of the Committee Report ........................................................ 17
Document Retention ........................................................................................... 18
Legislation ........................................................................................................ 19
Review of Decision legislation .............................................................................. 19
BRC Jurisdiction legislation .................................................................................. 21
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Benefits Review Committee Co-ordinators Information Pack
Introduction
This information pack is to assist you with your role as Benefits Review Committee (BRC)
co-ordinator.
The BRC co-ordinator works on behalf of the BRC and has an important role to play in
ensuring that requests for review are addressed in a consistent, professional and timely
manner. The efficient operation of a good BRC co-ordinator impacts on regional and
national performance which is monitored via the National Standards.
To get a full overview of the role of the co-ordinator this information pack should be read
in conjunction with the HIYA ROD Training Pack and the full ROD Resource Kit.
Overview
Benefit review hearings are a chance for a review panel to take a fresh look at decisions
made by the Ministry of Social Development.
The Benefits Review Committee is a review body that is established under the Social
Security Act 2018 (the Act) to make correct and fair decisions with regard to procedure
and law.
The benefit review process is an important part of ensuring that correct decisions are
made by the Ministry on a case by case basis. The benefit review hearing is an
opportunity for the applicant to explain why they disagree with the decision and for the
committee to re-look at the Ministry’s decision.
The benefit review co-ordinator’s role is to ensure that the benefit review process
happens in an efficient and timely manner. The co-ordinator will also act as a
distribution point for information and requests.
The following pages set out the processes, timeframes and guidelines for benefit review
co-ordinators to ensure that the hearing process runs smoothly and within designated
timeframes.
Co-ordinator Responsibilities
Regional Co-ordinators
The regional BRC co-ordinator’s role is to ensure that the overall hearing process runs
smoothly for their region and that the Ministry meets the specified timeframes. The
regional co-ordinator is responsible for:
Monitoring regional/group progress in HIYA
Maintaining a current list of all community representatives available
Providing a contact point for advocacy groups
They may, in suitable regions/groups, schedule hearings and arrange panel
members
They may, in suitable regions/groups, ensure decisions are implemented and
recommendations are considered by the Ministry, noting the Ministry’s response
to the recommendations in HIYA
Receiving a copy of the Benefits Review Committee’s (BRC) report
Providing a contact point for National Office Review and Client Representatives
team
Having a current list of Site/Area Co-ordinators for their region/group
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Site/Area Co-ordinators
Some regions or business units that are more geographically spread may nominate site
co-ordinators as well as regional co-ordinators. Their role is similar to the regional co-
ordinator, but they would service a specific site within their region as opposed to the
region as a whole.
The role of the Site/Area Co-ordinators is to:
Receive and lodge RODs in HIYA, issue the acknowledgement letter and block
time in the decision-makers schedule to complete the Internal Review
Refer the application to the appropriate decision maker
May perform an initial QA
Liaise with the SCM or appropriate senior staff member regarding the Sites/Areas
progress
Liaise with Regional/Group Co-ordinator and report Site/Area progress monthly
Monitor timeliness at Site/Area level
They may, in suitable regions/groups, schedule hearings and arrange panel
members
They may, in suitable regions/groups, ensure decisions are implemented and
recommendations are considered by the Ministry, noting the Ministry’s response
to the recommendations in HIYA
Receive a copy of the BRC report
Ensure that the ROD and related documentation are either scanned or batched
with a nil destruction date
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Benefit Review Hearing Process
The following flow chart and explanation are a general overview of the BRC process.
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The Co-ordinators Process
1.
Either the site co-ordinator or a nominated staff member enters the Review of
Decision into HIYA ROD. In conjunction with the service manager a decision is made
who will do the review. This would usually be the original decision maker.
2.
If the outcome of the internal review results in the review proceeding to the BRC the
assigned staff member, in conjunction with a report writing “expert”, will write the
‘Report to the BRC’. The co-ordinator will check to ensure the report is of an
acceptable standard and prepare it for the hearing (the co-ordinator will need four
copies of the report and all supporting papers and all originals).
3.
The co-ordinator sends the ‘Invitation to Hearing’ letter to the applicant with a copy
of the report, supporting papers and the ‘Guide to Benefit Review Hearings’.
4.
The co-ordinator informs the applicant of the hearing date. If the date is not suitable
the co-ordinator finds one that is mutually agreeable.
5.
If the applicant advises that they are bringing a solicitor or advocate to the hearing,
the co-ordinator advises the presenter so they can arrange a Ministry solicitor to
attend if appropriate.
6.
The co-ordinator sends an ‘Advice of Hearing’ letter to all panel members with a
copy of the report to the Committee and all supporting papers.
7.
If the applicant advises they do not wish to attend (or does not reply within 10
working days of sending the ‘Invitation to Hearing’ letter) the co-ordinator confirms
the hearing.
8.
The co-ordinator sends an ‘Advice of Hearing’ letter to all panel members with a
copy of the report and all supporting papers to the Committee. Along with an
‘Advice of Hearing’ letter to the applicant.
9.
The hearing occurs.
For information about the hearing process, please refer to the
‘Hearing’ section of this information pack.
10. After the hearing the co-ordinator ensures the ‘Decision of the Benefits Review
Committee’ report is completed by the BRC. This can be done by checking the HIYA
ROD system. Advice of the hearing outcome and a copy of the report should be sent
to the presenter and the applicant by the chairperson of the panel.
11. The co-ordinator ensures that the decision of the BRC is implemented within 24
hours of notification of the hearing.
12. The co-ordinator ensures any recommendations made by the panel are considered
by the Ministry and HIYA noted with the outcome of these considerations.
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Administration
Letters, Templates & Guides
All the letters, templates and guides mentioned in this information pack are built into
HIYA ROD. The system has the ability to save and recall all of these documents.
Letterhead
MSD letterhead is required on all correspondence from the BRC. This is to ensure the
perception of impartiality of the BRC is addressed. All correspondence regarding the
Internal Review is deemed to have been done at site level so will use site letterhead.
Client Representatives/Solicitors/Agents & support
people
The applicant is entitled to bring his or her own support person to the benefit review
hearing. If the applicant indicates that an advocate or solicitor will be attending the
benefit review hearing then the Ministry staff member who submitted the ‘Report to the
Benefits Review Committee’ needs to be informed.
If a solicitor is going to attend it may be necessary for the Ministry to arrange for their
solicitor to also be in attendance. Again, notify the presenter of this so that they can
contact the appropriate Ministry solicitor.
It is also important that you advise the applicant if the Ministry is going to have a
solicitor in attendance or as the presenter of the hearing.
If the applicant has an agent all communications should be sent to the designated agent
as well as the applicant.
Clients experiencing mental health issues
Clients who experience depression or anxiety, may find it difficult or stressful to engage
with the Review of Decision process. When making arrangements for the hearing it is
often best to give them a call (or e-mail if that’s their preferred method of contact) to
see if they want to attend the hearing, talk them through the process and let them know
that there are options available to them.
These options include:
Attending the hearing with a support person.
Having an agent or advocate attend with them or in their place.
The client sending the BRC in a written document explaining why they believe the
decision is not correct.
Attending the hearing by Skype, video conference, or teleconference.
Having the hearing in a neutral environment such as a community centre or the
like.
The above list is not exhaustive, work with the client and/or their agent to find a
solution.
You may want to talk to your RHA when looking for solutions.
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Trespassed Clients
If the applicant has a current trespass order the hearing can proceed on a papers only
basis or they can appoint an agent, if they haven’t already done so, to represent them at
the hearing or they can opt to have their hearing via teleconference or video conference.
Sometimes they may wish to use a combination of these.
If a client does not pose a physical threat you should investigate the option of using a
venue the client is not trespassed from to allow them to attend. This should be discussed
with your manager or the National Office Review and Client Representatives team.
Remote Client Unit
The Remote Client Unit has been established to provide an avenue for clients, who have
been assessed as posing a high risk to the safety of Ministry staff in Service Centres
nationwide, to continue to access Ministry services. If a client has been referred to the
Remote Client Unit please send any reviews they may lodge through to the unit to
manage. Options available in these cases may include:
Papers only
Appointment of agent; or
Teleconference / Videoconference.
Timeliness Standards
Refer to the flowchart on page 3 for the benefit review timeliness standards. There is a
guideline time allocation for each step, however it is a National Standard that the whole
process should take a maximum of 32 working days from the time the applicant submits
the Review of Decision to when the final ‘Report of the Benefits Review Committee’ goes
out. There are 56 working days available for Out of Time cases.
QA Process/Report Checking
The BRC co-ordinator may wish to ensure that the quality of reports going to the
committee meets the required standard. It is important to check that the manager’s
checklist and QA has been completed.
Each report should clearly explain the entire case to someone who has no understanding
of the welfare system. If the co-ordinator believes the quality of a report is not
acceptable they need to return the report to the responsible manager with clear notes
about what needs to be improved.
All relevant documentation should be attached to the ‘Report to the Benefits Review
Committee’.
A guide template of the ‘Report to the Benefits Review Committee’ is included in doogle.
http://doogle.ssi.govt.nz/business-groups/organisational-integrity/client-advocacy-and-
review/review-and-client-representatives/report-templates/report-templates.html
Escalation of Issues
If at any stage the co-ordinator is not happy with the progress of a benefit review they
need to escalate the issue to the relevant manager.
When the co-ordinator escalates the issue they need to clearly explain what the issue is
and why it is an issue. Explain what steps need to be taken to resolve the issue and what
timeframes are involved.
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Any issue escalation needs to be noted in HIYA ROD. Copies of any correspondence
regarding any escalation should be treated as valuable and reusable. All scanned
documents will be held electronically in the client’s record and accessed through CMS.
Schedules
Planned review hearings are held on a schedule maintained by the BRC co-ordinator.
How the co-ordinator manages this process is dependent on the delivery model options
that are adopted by the particular region or unit.
The responsibility for completing the Report to the BRC always lies with the region, or
site of the original decision maker, but from time to time it may be necessary to co-
ordinate a hearing from another region or site. For example, clients that move regions,
or review a decision that was made in a centralised unit (such as Integrity Intervention
Centre or SPS Wellington) will require a hearing to be arranged within the region where
they are now residing to enable them to attend.
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Legal Information
Can the BRC review the decision?
The BRC cannot review a decision if:
the review has been heard by a committee previously (unless there was a
fundamental breach of natural justice or fundamental error)
the review is outside the three month review period and the committee considers
there is not a good reason for delay
the committee has no jurisdiction to hear the issue being reviewed.
Already Heard by the Committee
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 a BRC previously and a decision issued, treat the review
as an application to the Social Security Appeal Authority. Contact your regional legal
advisor if you think there may have been a procedural error or fundamental breach of
natural justice that has meant that the applicant has been disadvantaged or an issue
around bias or impartiality.
For example: prior involvement in the decision by a panel member. The decision can be
treated as invalid and the case reheard.
Note that in some cases, what may seem to be an application to review a decision again,
may, in fact, relate to a different decision. For example, the first review related to a
decision to establish an overpayment, but the BRC did not consider whether the debt
was caused by an error and should not be recovered under Regulation 208. The
applicant may apply for a further review, this time of the decision not to consider
Regulation 208.
If the applicant has been prosecuted by National Fraud Investigation Unit in the District
Court and then applies for a review of the decision to establish and recover the
overpayment, jurisdiction will probably be an issue.
In this case, the BRC should seek legal submissions from both parties on the issue of
jurisdiction and make a determination before considering the substantive matter. The
parties may both be present at this jurisdiction hearing. If the BRC determines that it
does not have jurisdiction, it should not go on to consider the substantive matter at a
further hearing.
Exceptions
A second BRC may not be convened to review a decision of an original Benefits Review
Committee. 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 Benefits Review
Committee has not actually carried out its function to review a decision. For example:
Fundamental Breaches of Natural Justice
the applicant has not been informed of the Benefits Review Committee hearing;
or
the applicant has not been given the opportunity to be heard (explain their view
of the case) this can either be in person or the opportunity to submit material in
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Hearing types
Out of Time Reviews
The Social Security Act 2018 gives applicants three months to apply for a review of
decision from the date they were notified of the 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 Benefits Review Committee the ability to hear reviews
out of time if it considers there is good reason for the delay in requesting a review.
The first step is to confirm that the request for review has been filed within three months
of the applicant being notified of the decision. If the review 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 ROD.
If the original request for review does not state the reasons, contact the applicant and
explain the situation. Give the applicant the opportunity to explain why the review was
lodged out of time.
Out of time Internal Review
An Internal Review Submission is not completed on the out of time issue itself, but
should be completed on the substantive issue to establish that the decision under review
was correct. The only exception to this is if a review is received more than seven years
after the decision was made. In these circumstances the Internal Review Submission will
not need to be completed.
Out of time report to the BRC
The Report to the BRC should be completed on the out of time issue only. The committee
must consider whether there is good reason for the delay. If in preparing the out of time
report to the BRC the Ministry comes to believe that the applicant does have a good
reason for the delay in applying for the review the Ministry can recommend in the report
to the BRC that the substantive issue be heard.
If the Ministry is recommending the substantive issue be heard then both the out of time
report as well as the substantive issue report to the BRC can be sent to the Committee.
This is because it would be very rare for the BRC to decline to hear the substantive issue
if the Ministry has recommended it. When sending the reports to the applicant in these
circumstances a covering letter should be included stating that if the BRC decide there
was a good reason for the delay in applying for the review the hearing for the original
decision will take place straight after (a letter template has been included on doogle).
When scheduling the hearing in these circumstances, enough time has to be allowed for
both the out of time and the substantive issue to be heard, this is based on the
assumption that the BRC will allow the substantive issue to be heard.
http://doogle.ssi.govt.nz/resources/helping-staff/procedures-manuals/review-
decisions/out-of-time.html
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Out of time BRC decision
If the BRC finds that there were no good reasons for the delay, the BRC should decline to
hear an application for review more than 3 months after notification of the decision. It
should not consider the substantive issue. The applicant does not have the right of
appeal to the Social Security Appeal Authority if a BRC determines that there are no
grounds for the decision to be reviewed outside of the three month timeframe.
If the BRC decides that there is good reason for the delay, then the BRC will decide to
allow the review to proceed to the substantive hearing. It will consider the substantive
issue at another time after both parties have adequate time to prepare submissions.
Jurisdiction
If the application for review is clearly outside the jurisdiction of the BRC, the applicant
should be notified and given the opportunity to withdraw their application for review. In
all other cases, the matter should be forwarded directly to the BRC. If jurisdiction is an
issue, the BRC will hold a jurisdiction hearing and make a determination on that matter
before considering the substantive decision.
If the applicant does not withdraw their application in writing, and the Ministry considers
that it is not reviewable under the above criteria, the case should still be referred to the
BRC. It will be the role of the BRC to determine whether the review lies inside their
jurisdiction. When a review is to proceed to a BRC on the matter of jurisdiction the case
should be referred to legal services to assist with the correct preparation of the report.
If jurisdiction is an issue, the applicant should be given the opportunity to explain why
the BRC should hear the review. The committee will then prepare a report explaining
whether the review is within its jurisdiction or not. The completed report needs to be
sent to both the Ministry and the applicant.
Prosecution
At times an applicant may ask for a review on a decision which they are also being
prosecuted for. In these situations they must be made aware that anything they say
during a Benefit Review hearing can be used as evidence in the court prosecution.
A standard letter has been developed for these situations and is one of the templates
available in HIYA ROD.
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Panels
Panel Makeup
The BRC consists of three members. They are:
two Ministry staff members who have had no prior involvement with the decision
being reviewed. This prohibition includes such activities as signed off
correspondence. This includes computer-generated letters with electronic
signatures of service centre managers.
a community representative appointed by the Minister to represent community
interest, and who is resident, or closely associated with the region.
All three members of the panel must be present at the hearing to make a decision.
If a National Fraud Investigation Unit case is being heard only one of the panel members
can be from the unit.
The same panel members can be used for both the out of time and the substantive
hearings as the substantive issue is not discussed at the out of time hearing. However, if
a hearing is adjourned, then the same panel members must be used, as far as possible,
so that all members have heard the same information and discussions.
The applicant can object to any member being part of the Benefits Review Committee,
by stating the reasons for his or her 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 should be replaced. The Applicant would
usually discuss this with the Benefits Review Co-ordinator.
Community Representatives
Availability
Each region has a pool of available community representatives. Having a pool of
community representatives mean that hearings can occur on a regular basis allowing for
prompt processing of all benefit reviews.
Appointment Process
The position of community representative to the BRC is a Ministerial appointment made
at the discretion of the Minister for Social Development. This means that the Minister
decides who can act as a community representative and for what period of time.
The Minister has decided that from November 2015 community representatives are
appointed for a fixed term of five years.
For more information on the appointment process please refer to the information
available on doogle and the MSD website.
Rate of Payment for Community Representatives
The community representative is paid for work actually done. Payments are processed
through the Ministry payroll and attract Withholding Tax.
Payment rate:
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$116.67 for 0-3 hours
$233.35 for 3+ hours
Time spent in preparation for hearings is included in the hours calculated for payment.
This means if three hearings are heard in a day and they take three hours to complete
and one hour was spent in preparation time payment would be made at the rate of
$233.35.
Allowances paid to committee members for expenses are subject to withholding tax at
the rate of 33%. However, certain reimbursements are exempt from withholding tax,
provided the following conditions are met:
The expenditure must have been incurred by the committee member in the
course of duties performed on behalf of the Ministry; and
The expenditure must be reimbursed based on receipts or invoices retained by
the Ministry.
For example, a reimbursement of air travel, supported by actual invoices, would not be
subject to withholding tax.
Reimbursement of motor vehicle expenses (e.g. mileage allowances), based on the
standard IRD rate of 76 cents per kilometre is subject to withholding tax as there would
be no supporting invoices or receipts. Time spent travelling cannot be claimed unless
travel time exceeds more than three hours in a day.
This application of tax legislation has been based on the circumstances that will best fit
the majority of community representatives. As community representatives’ individual
circumstances vary, it is recommended that they discuss their personal taxation situation
with Inland Revenue, an accountant or a taxation specialist.
Paying Community Representatives
An expense claim completed by the community representative and signed by the
appropriate budget manager is submitted to Human Resources for each hearing.
Expense claim forms can be found in the community representatives page of the Review
and Client Representative Team doogle site and the MSD website.
Changes in Circumstances
A national database is held on all community representatives. You need to contact the
Review and Client Representatives team in National Office in any of the following
situations:
a community representative would like to resign
additional community representatives are required
a community representative changes address
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The Hearing
Setting up
When you are preparing for a benefit review hearing you will need the following:
a suitable room e.g. outside persons cannot observe proceedings, sufficient
lighting, comfortable temperature, access for people with disabilities
a table and chairs that all panel members, applicant and support people can sit at
water and glasses
laptop, paper, pens & calculator
original papers submitted
consolidated legislation
any relevant policy manuals
take any specific cultural or language requirements into consideration. This may
include arranging an interpreter
Resource Kit with most recent updates
Notes
Committee members are responsible for taking their own notes, although one member
may be elected to take more in depth notes or minutes. It is inappropriate for someone
outside of the Committee to take minutes as they may put their own slant on what was
said.
At the end of each case heard the minute taker must confirm with the wider Committee
what the final decision on each point was. A template for minutes is included in the Panel
Members Information Pack – Appendix 1. All 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.
Notes from the hearing should be kept with the client’s file and then batched once the
report of the BRC has been written and signed off by the panel. This way the panel can
refer to their notes when they are finalising that the report is a true reflection of the
hearing.
Process for postponements
If the applicant advises the co-ordinator prior to a hearing that they want a
postponement for any reason the request should be accommodated. We understand this
can be frustrating when there are several postponements. However, it is the applicant’s
right to defer a hearing if, for any reason, that date is not suitable. This right does not
lessen the more frequently they postpone. However, there may be occasions where after
consultation a final hearing date is set and notice is given to the applicant of this. This
does not affect timeliness issues for performance monitoring as long as these delays are
noted, dated and time framed in HIYA.
It is recommended in this situation the co-ordinator liaises with the applicant and
request they propose a suitable date that gives them adequate time to prepare and does
not conflict with their schedule. If the applicant has a client representative they are to be
contacted to confirm they will be adequately prepared to attend. If there are multiple
postponements from a client representative this may require an actual meeting to
discuss the issue going forward.
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If you believe the number of requests for delay are getting unreasonable use the below
letter template. This allows the BRC to decide if the request for delaying the hearing is
reasonable and within the bounds of natural justice. If the BRC agree that the client has
been given ample opportunity to attend the hearing, and have not provided plausible
reasons for delaying the hearing again, then the case can be heard on papers only.
The multiple postponement letter template is available on doogle via this link:
http://doogle.ssi.govt.nz/business-groups/helping-staff/corporate-governance/what-we-
do/review-decisions/coordinators.html http://doogle.ssi.govt.nz/business-
groups/organisational-integrity/client-advocacy-and-review/review-and-client-
representatives/letter-templates/letter-templates.html
Adjournments
Some cases referred to the Benefits Review Committee may not be finalised at the
hearing. The Committee may decide that further time is needed to consider all
submissions made to the Committee, or they may request further information be
provided by either the applicant or the Ministry.
The Committee will set the date and time to reconvene the hearing. Usually a hearing
can be reconvened within a fortnight of the original hearing. Under no circumstances
should a hearing be adjourned without a follow up hearing date being set. This ensures
that there is not an unreasonable delay in the hearing being finalised.
New information
At any stage of the review process, before the Benefits Review Committee makes a
decision, the Ministry or the Applicant can produce additional information to be
considered.
New information provided when the applicant applies for an ROD
When the applicant applies for a Review of Decision, it is appropriate for the Ministry to
take another look at the original decision before the case goes to the BRC Coordinator to
arrange a Benefits Review Committee.
The original decision should be revisited. Consider the following:
relevant legislation and policy
the information presented at the time
any new information to hand
reasons for the original decision
the reason the applicant is not happy with the decision and any points raised by
the client representative
any other appropriate means of assistance available to the client
New information provided prior to the BRC
If additional information is provided to the Benefits Review Committee/co-ordinator it
must also be provided to the other party (e.g. the Ministry or applicant). The other party
must be granted adequate time to consider the additional information prior to the review
hearing if possible. Alternatively the hearing can be postponed until the other party has
had sufficient time to consider the additional information. If the hearing is postponed, it
is important that a new hearing date is arranged at the time. This ensures that there is
not an unreasonable delay before the committee meets to consider the decision under
review.
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New information presented at a BRC
If new information is presented at the hearing the committee needs to ensure that each
party has time to consider any new material, and if necessary an adjournment should be
granted. It is important that both parties are given reasonable opportunity to respond to
any new information before the committee takes account of that new information in its
decision making process.
Depending on the nature of the new information the adjournment could be to later the
same day or another hearing date.
Additional information required for the BRC to make a decision
If the panel require further information they 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 you are still present at the hearing
or after you have left. If it is after you have left the hearing the chairperson will write to
both the Ministry and the applicant requesting the further information and setting down
a new date for the panel to reconvene. It is up to the panel to decide whether or not it is
necessary for the attendance of the applicant and the Ministry at this further reconvened
meeting.
New information provided after the hearing but before decision
sent to the applicant and the Ministry
If new information relating to the decision under review is received, the panel will need
to consider if the information would change the decision. Both parties would need to be
given the opportunity to respond in writing regarding the new information and the panel
would need to reconvene and include the outcome in the ‘Report of the BRC’.
New information provided after hearing and decision has been
sent to applicant and Ministry
If new information relating to the decision under review is received that could change
the decision to the advantage of the applicant this would need to be sent to the Service
Centre or Unit that made the original decision to consider under s81 of the SSA. If the
new information would not change the decision the applicant would need to be advised
why and provided information regarding the option of lodging an appeal to the Social
Security Appeal Authority.
If new information is presented which may change the decision of the BRC 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 BRC at the time
(see High Court case
Hamidi). The Ministry has no “right of appeal” from the BRC. If you
are unsure about whether the information is a change of circumstances or not please
refer to your regional solicitor.
Hearing the review on papers
If the applicant does not wish to attend the review hearing the Benefits Review
Committee hears the review on papers only, i.e. no verbal submissions are made to the
Committee by the applicant or a Ministry presenter.
Further written submissions provided by the applicant and/or the Ministry, in addition to
the BRC report, may be given to the Committee to consider. A copy of any further
information provided must be given to all parties involved in the review.
The Ministry should always be ready to appear and present the Ministry’s case should the
applicant decide to appear at the last minute.
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Decisions
Making Decisions
Once a review case has been heard and all submissions considered the committee will
decide the outcome of the review. The committee can decide to:
uphold the decision
uphold in part the decision
overturn the decision
Generally, a committee should discuss the case and make its decision at the conclusion
of the hearing (i.e. after the applicant/presenter(s) have left). The committee can then
write up its decision.
If the committee 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. The committee will document the expected outcomes and notify
the applicant and the Ministry in writing of this decision. It will be the relevant manager’s
responsibility to ensure that the required actions are taken.
If further matters are raised that the committee feel they need to address outside of the
decision being reviewed, the committee can make a comment and recommend that the
Ministry address the issue/s.
Split decisions
In some cases the committee may not be able to come to a unanimous decision. In
these cases a majority only decision is needed, e.g. two of the committee members need
to agree. The dissenting committee member should provide reasons why they would
have decided the case differently in the final decision report.
Writing the Decision of the Committee Report
The Benefits Review Committee has a legal obligation to provide full written reasons for
its decision. It is the chairperson’s responsibility for ensuring the report is completed and
that the three panel members agree with the final version. It is the co-ordinator’s
responsibility to ensure the applicant receives the report in a timely manner.
It may be possible to copy and paste sections relating to facts and the law from the
report to the Benefits Review Committee. However, it needs to be ensured that all
submissions to the Committee are accurately summarised.
If a split decision is made then the dissenting opinion of the committee member needs to
be documented in the final report.
The final report needs to fully explain to the applicant the reasons for the decision made
by the committee. If the committee makes reference to legislation or policy in the final
decision then that legislation or policy needs to be referred to and may also be quoted or
attached to the report.
“Full reasons” does not mean a short bullet point list. The decision should consider both
sides of the case, make any necessary factual decisions and apply relevant law and
policy to these facts. Where policy is departed from, reasons for this decision need to be
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explained. The applicant should see that their arguments have been considered and
addressed, and should understand the basis for the decision the Committee reached.
Document Retention
When the panel has made its decision, all supporting documentation should be either
scanned or batched permanently and should not be destroyed unless it is a copy. This
includes any notes taken during the hearing.
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 panel members, particularly community representatives, may want
to keep copies of decisions at home for reference purposes once a decision has been
made. If panel members wish to do this, they should ask the co-ordinator to arrange for
a copy to be provided for the panel member which has identifying details of the client
removed.
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Legislation
Review of Decision legislation
The legislation, which requires us to review and check decisions made in respect of
benefits, is found in sections 391 – 394 of the Social Security Act 2018.
391 Right to seek review of specified decision of MSD
made under delegation
391 Right to seek review of specified decision of MSD made under delegation
(1)
A person may make an application to MSD for a review by a benefits review
committee of a decision of MSD, but only if—
(a)
the person and the decision are of kinds specified in the same row of the
following table; and
(b)
the decision is made in the exercise of a function, power, or discretion
conferred by a delegation; and
(c)
the decision is made in relation to the person or estate; and
(d)
the decision is not one that section 340(3)(b), 343(b), 371(b), or 396
prevents
from being appealed to the appeal authority (for example, because
that kind of decision is appealable to the medical board).
Row Person who may make
Decision to be reviewed
application for review
Decision under specified social assistance enactment 1
An applicant or a beneficiary
A decision of MSD made under an enactment
referred to in section 397(1)(a) to (g)
Decision under mutual assistance provisions in reciprocity agreement 2
An applicant or beneficiary or
A decision of MSD made using a power under section
other person
384 (MSD may use mutual assistance provisions to
recover debts) (referred to in section 398)
Decision to recover from spouse or partner who misleads MSD excess amount beneficiary
obtained 3
A beneficiary’s spouse or
A decision of MSD—
partner
(a) to recover, from a spouse or partner who
misleads MSD, an excess amount the beneficiary
obtained; and
(b) made under regulations made under section 444
(referred to in section 399(1)); and
(c) that includes the decisions in row 1 of the table
in section 399(1)
Decision to recover from spouse or partner apportioned excess amount beneficiary obtained
by fraud 4
A beneficiary’s spouse or
A decision of MSD—
partner
(a) to recover from a spouse or partner an
apportioned excess amount the beneficiary
obtained by fraud; and
(b) made under regulations made under section 444
(referred to in section399(1)); and
(c) that includes the decisions in row 2 of the table
in section 399(1)
Decision to recover from spouse or partner unapportioned excess amount beneficiary
obtained by fraud 5
A beneficiary’s spouse or
A decision of MSD—
partner
(a) to recover from a spouse or partner an
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unapportioned excess amount the beneficiary
obtained by fraud; and
(b) made under regulations made under section 444
(referred to in section 399(1)); and
(c) that includes the decision in row 3 of the table in
section 399(1)
Decision to recover excess amount from deceased beneficiary’s estate
6
The personal representative
A decision of MSD—
of a deceased beneficiary
(a) to recover from the estate of the deceased
beneficiary an excess amount the beneficiary
obtained; and
(b) made under regulations made under section 444
(referred to in row 4 of the table in section
399(1))
Decision to recover excess amount from deceased spouse’s or partner’s estate
7
The personal representative
A decision of MSD—
of a beneficiary’s deceased
(a) to recover from the estate of the beneficiary’s
spouse or partner
deceased spouse or partner an excess amount
the beneficiary obtained; and
(b) made under regulations made under section 444
(referred to in section 399(1)); and
(c) that includes the decision in row 5 of the table in
section 399(1)
(2)
For the purposes of subsection (1)(c), a decision is not made in relation to a
person or an estate by reason only that the decision has an economic or other
effect on the person or estate.
392 Application must be made within 3 months after
date of notification or further period allowed
(1)
The application for review must be made within—
(a)
3 months after the date of receiving notification of the decision; or
(b)
a further period the committee has under this section allowed.
(2)
An applicant for review is treated as receiving notification of the decision in
line with regulations made under section 449 if—
(a)
a decision is made in respect of which an application for review lies to the
committee; and
(b)
notice of the decision is given to the applicant in a way prescribed by
those regulations; and
(c)
the notice is (in the absence of evidence to the contrary) taken to have
been received by the applicant as provided by those regulations.
(3)
The committee may allow a further period within which the application must be
made if—
(a)
the application is not to be, or has not been, made within that 3-month
period; and
(b)
the committee is asked, before or after the end of that 3-month period, to
allow a further period; and
(c)
the committee considers there is good and sufficient reason for the delay.
Committee
393 Benefits review committee
(1)
Every benefits review committee is established, and operates, in accordance with
Schedule 7.
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(2)
MSD must refer an application made under section 391 to the appropriate
benefits review committee.
(3)
In determining what benefits review committee is the appropriate benefits review
committee, MSD must have regard to—
(a)
the location of the MSD office in which was made the decision of MSD that
is the subject of the application; and
(b)
the location of the applicant’s usual or last known place of residence; and
(c)
how the applicant can conveniently, and at minimum expense, attend in
person, or otherwise take part in, a review hearing.
(4)
The appropriate benefits review committee may be the benefits review committee
of an MSD office other than the MSD office in which was made the decision of
MSD that is the subject of the application.
Example
The decision of MSD that is the subject of the application was made in the MSD
office at a location. Afterwards, the applicant moves away from that location. The
benefits review committee of the MSD office of a location nearer to the applicant’s
new usual place of residence is appropriate because it enables the applicant
conveniently, and at minimum expense, to attend in person, or otherwise take
part in, a review hearing.
Procedure
394 How to begin, and procedure and powers for, review
by benefits review committee
Regulations made under section 451 provide for the following matters:
(a)
how to begin, and the procedure on, a review:
(b)
the benefits review committee’s power to deal with (for example, confirm,
vary, revoke, or refer back for reconsideration) the decision reviewed:
(c)
related matters specified in that section.
BRC Jurisdiction legislation
The legislation, which sets out the jurisdiction of the Benefits Review Committee, is
found in Sections 396 to 399 of the Social Security Act 2018.
396 Authority cannot hear and determine certain
appeals on medical or capacity grounds
(1)
The appeal authority must not, despite sections 397, 398, and 399, hear and
determine any appeal on medical grounds, grounds relating to incapacity, or
grounds relating to capacity for work, against any decision of MSD in respect of—
(a)
jobseeker support on the ground of health condition, injury, or disability;
or
(b)
a supported living payment on the ground of restricted work capacity or
total blindness (
see rows 11 and 12 of the table in section 411); or
(c)
a child disability allowance under section 78; or
(d)
a veteran’s pension under section 164 of the Veterans’ Support Act 2014.
(2)
No appeal lies under section 397(1)(a) against—
(a)
a decision under section 155 against which an appeal lies under row 7 or 8
of the table in section 411 to the medical board; or
(b)
a decision under section 250(1)(a) against which an appeal lies under row
10 of the table in section 411 to the medical board.
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Rights of appeal
397 Decision under specified social assistance
enactments
(1)
An applicant or beneficiary may appeal to the appeal authority against any
decision or determination of MSD made in relation to the applicant or beneficiary
under—
(a)
any provisions of (or of any regulations made for the purposes of any
provisions of) Parts 1 to 6 and Schedules 1 to 5; or
(b)
a special assistance programme approved by the Minister under section
100 or 101; or
(c)
any regulations in force under section 437 (regulations: issue and use of
entitlement cards);
(d)
any provisions of, or of regulations made under, the Residential Care and
Disability Support Services Act 2018; or
(e)
Part 6 of the Veterans’ Support Act 2014, subject to section 175(2) of that
Act; or
(f)
Part 1 of the New Zealand Superannuation and Retirement Income Act
2001; or
(g)
the Family Benefits (Home Ownership) Act 1964.
(2)
Subsection (1)(d) applies to a person in relation to whom a decision is made
under any provisions of, or of regulations made under, the Residential Care and
Disability Support Services Act 2018, as if the person were a beneficiary.
(3)
For the purposes of subsection (1), a decision or determination is not made in
relation to an applicant or a beneficiary by reason only that the decision or
determination has an economic or other effect on the applicant or beneficiary.
(4)
This section is subject to provisions to the contrary in this Act (for example,
sections 340(3)(b), 343(b), and 371(b)).
398 Decision under reciprocity agreements
An applicant or beneficiary or other person may appeal to the appeal authority
against a decision that was made in relation to that person by MSD under the
power conferred by section 384 (MSD may use mutual assistance provisions to
recover debts).
399 Decision to recover excess amount
(1)
A person specified in a row of the following table may appeal to the appeal
authority against a decision that is—
(a)
of the kind specified in that row; and
(b)
made in relation to the person or estate.
Row Person who may appeal
Decision of MSD that may be appealed
Decision to recover from spouse or partner who misleads MSD excess amount
beneficiary obtained 1 A
beneficiary’s
(
B’s) spouse or
A decision of MSD—
partner (
S)
(a) to recover from S an amount in excess of
the amount to which B was by law entitled;
and
(b) made under regulations made under
section 444; and
(c) that includes the decision that, in MSD’s
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opinion, S has made a false statement to or
otherwise misled MSD, in relation to any
matter; and
(d) that includes the decision that, as a result
of S making a false statement to or
otherwise misleading MSD, the benefit or
an instalment of benefit was paid in excess
of the amount to which B was by law
entitled; and
(e) that is not a decision or determination of
MSD that relates only to the temporary
deferral, rate, or method or methods of
debt recovery from B
Decision to recover from spouse or partner apportioned excess amount beneficiary
obtained by fraud
2 A
beneficiary’s
(
B’s) spouse or
A decision of MSD—
partner (
S)
(a) to recover from B an amount in excess of
the amount to which S was by law entitled;
and
(b) made under regulations made under
section 444; and
(c) that includes the decision that all or part of
proportion B (as referred to in regulations
made under section 444) is an amount in
excess of the amount to which B is by law
entitled or to which B has no entitlement,
and an amount obtained by fraud by B; and
(d) that includes the decision that S either
knew, or ought to have known (even if S
did not know), of the fraud by B; and
(e) that is not a decision or determination of
MSD that relates only to the temporary
deferral, rate, or method or methods of
debt recovery from B
Decision to recover from spouse or partner unapportioned excess amount beneficiary
obtained by fraud 3 A
beneficiary’s
(
B’s) spouse or
A decision of MSD—
partner (
S)
(a) to recover from S an unapportioned
amount in excess of the amount to which B
was by law entitled or to which B has no
entitlement; and
(b) made under regulations made under
section 444; and
(c) that, for the purposes of S’s right of appeal
under this row, includes the decision that B
obtained by fraud an amount in excess of
the amount to which B was by law entitled
or to which B has no entitlement; and
(d) that is not a decision or determination of
MSD that relates only to the temporary
deferral, rate, or method or methods of
debt recovery from B
Decision to recover excess amount from deceased beneficiary’s estate
4
The personal representative of a A decision of MSD—
deceased beneficiary (
B)
(a) to recover from B’s estate an amount in
excess of the amount to which B was by
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law entitled; and
(b) made under regulations made under
section 444
Decision to recover excess amount from deceased spouse’s or partner’s estate
5
The personal representative of a A decision of MSD—
beneficiary’s (
B’s) deceased
(a) to recover from S’s estate an amount in
spouse or partner (
S)
excess of the amount to which B was by
law entitled; and
(b) made under regulations made under
section 444; and
(c) that, for the purposes of the personal
representative’s right of appeal under this
row, includes the decision that B was paid
an amount in excess of the amount to
which B was by law entitled
(2)
A reference in this section to a decision to recover an amount from a person or
estate includes (without limitation, and except as expressly provided in this section)
all related decisions on all or any of the temporary deferral, rate, or method or
methods, of debt recovery from the person or estate.
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