Reviews of Decision
Report Writers
Information Pack
To be read in conjunction with the
Panel Members Information Pack
November 2018
Version 9
Report Writers Information Pack
Contents
Overview .................................................................................................. 4
Jurisdiction - can the BRC review the decision? ............................................ 4
What can’t be reviewed under sections 395-399 ? ........................................ 4
Matter heard previously ............................................................................ 5
Out of Time Reviews ................................................................................ 6
Process if matter outside the jurisdiction of the Benefits Review Committee ..... 7
Stages of the review and appeal process ....................................................... 8
Stage 1 – Internal review ......................................................................... 8
Stage 2 – Benefits Review Committee ........................................................ 8
Stage 3 – Appeal Authority hearing ............................................................ 9
Legislation .............................................................................................. 10
Sections 391 - 394 of the Social Security Act 2018 ..................................... 10
Schedule 7 Benefits review committees .................................................... 13
Sections 397-400 of the Social Security Act 2018 ....................................... 14
Social Security Regulations 2018 – 246-247 .............................................. 17
Review of Decision Process Flowchart .......................................................... 19
HIYA-ROD ............................................................................................... 20
Appropriate Resolution of RODs in HIYA .................................................... 20
Withdrawn............................................................................................ 20
Overturned ........................................................................................... 20
Upheld in Part ....................................................................................... 20
Upheld ................................................................................................. 21
Deleted ................................................................................................ 21
To get into HIYA-ROD: ........................................................................... 21
Process for multiple Review of Decisions or more than one client .................... 22
Shared care - third party involvement ........................................................ 23
Confidential Information ............................................................................ 24
Review Process Stage One: The Internal Review ........................................... 25
Introduction ......................................................................................... 25
When you do not have to complete the internal review template .................. 25
How we make decisions? ........................................................................ 25
Sources of Law ..................................................................................... 25
Mandatory versus Discretionary ............................................................... 27
Discretion and Policy .............................................................................. 27
Fact Finding .......................................................................................... 27
Obtaining a Legal Opinion ....................................................................... 28
Legal Advice and Legal Submissions ......................................................... 28
Completing the Internal Review Template ................................................. 29
Stage Two: The Report to the Benefits Review Committee ............................. 30
Introduction ......................................................................................... 30
Report Content ..................................................................................... 30
Decision being reviewed ......................................................................... 30
Summary of facts .................................................................................. 30
The Law and Policy ................................................................................ 31
Applicant’s case .................................................................................... 31
Case for the Ministry of Social Development .............................................. 31
Conclusion ........................................................................................... 32
List of Documents.................................................................................. 33
Layout ................................................................................................. 33
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Law and Policy ..................................................................................... 33
Numbering ........................................................................................ 33
Language .......................................................................................... 33
Sentences ......................................................................................... 34
Process after the Report is completed ....................................................... 34
Presenting to the Benefits Review Committee ............................................... 36
The Hearing Outcome ............................................................................ 37
Frequently Asked Questions ....................................................................... 38
Appendix 2: Glossary of terms ................................................................... 43
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Overview
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,
email or an application form) where they have received formal notification of (and
do not agree with) a decision which has been made under the provisions listed in
section 397 of the Social Security Act 2018. This includes decisions made under:
any provisions of (or of any regulations made for the purposes of any
provisions of) Parts 1 to 6 and Schedules 1 to 5 of the Social Security Act
2018
a special assistance programme approved by the Minister under section
100 or 101 of the Social Security Act 2018
any regulations in force under section 437 (regulations: issue and use of
entitlement cards);
any provisions of, or of regulations made under, the Residential Care and
Disability Support Services Act 2018; or
Part 6 of the Veterans’ Support Act 2014, subject to section 175(2) of that
Act; or
Part 1 of the New Zealand Superannuation and Retirement Income Act
2001; or
the Family Benefits (Home Ownership) Act 1964.
Jurisdiction - can the BRC review the decision?
The BRC cannot review a decision (i.e. the BRC does not have jurisdiction) if:
it is not a decision listed in section 395-399 of the Social Security Act 2018
the matter has been heard previously by the BRC or by another judicial
body
the review is outside the three month review period and the committee
considers there is not a good reason for delay
What can’t be reviewed under sections 395-399 ?
Some decisions made by the Ministry are not able to be appealed to the Appeal
Authority (and therefore have no right to be reviewed by a BRC):
Decisions made on medical grounds
any decision made on medical grounds for Supported Living Payment
(health condition, injury or disability), Jobseeker Support (health
condition, injury or disability), Child Disability Allowance or Veterans
Pension
any decision made (on medical grounds or on grounds relating to
capacity to work) to require a Jobseeker Support (health condition,
injury or disability).
There are separate appeal provisions for decisions made on medical grounds.
Information can be found on the following doogle page: Link to be updated
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http://doogle.ssi.govt.nz/map/income-support/core-policy/reviews-and-
appeals/medical-appeals-board.html
Some employment assistance decisions including:
Flexi-wage self-employment assistance
Vocational Services for People with Disabilities (community
participation only)
Some Social Housing decisions including:
The decision not to review the clients housing need
Any decision made by a housing provider regarding tenancy- related
matters such as:
o
the determination of a market rent rate
o
rent arrears
o
damages debt or
o
whether someone can join into a tenancy agreement
Service complaints
A review of decision may include a complaint about the service the
applicant received.
For example,
A client contacts the Ministry several times, asking her case manager to
contact her. The case manager does not return these calls so the client
contacts the call centre. The next appointment is weeks away.
In this case it is appropriate for the BRC to:
comment on the delays and note that this is regrettable
ask the Ministry to look into the delays and explain or apologise to the
applicant then look at the reviewable decision
Other decisions made by the Ministry that are not reviewable
where the application for benefit has lapsed under section 297 of the
Social Security Act 2018 -
any decision that has been made on defining job seeker activities
included in an existing Job Seeker Agreement
Student Allowance and Student Loans under the Education Act 1989
Some decisions have restricted right of review. For example only the
decision relating to income and asset testing of Residential Care Subsidy
applications can be reviewed by a BRC. Decisions about eligibility or
conditions for funding are not able to be reviewed by a BRC. Nor is the
decision to grant or decline a Residential Care Subsidy Loan.
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 a Benefits Review Committee previously and the applicant has not
appealed the decision to the Social Security Appeal Authority, suggest to them
that they should do this if they are still unhappy with the decision.
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
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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 a Fraud Investigation Unit in the District
Court in respect of benefit received during a particular period, 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.
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.
An Internal Review 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
will not need to be completed.
The Report to the Benefits Review Committee should be completed on the out of
time issue only. The committee must consider whether there is good reason for
the delay. If the committee finds that there were no good reasons for the delay,
the committee 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 committee determines that there are no grounds for the
decision to be reviewed outside of the three month timeframe.
If the committee decides that there is good reason for the delay, then the
committee will decide to allow the review to proceed to the substantive hearing.
The committee will consider the substantive issue at another time after both
parties have adequate time to prepare submissions.
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Process if matter outside the jurisdiction of the Benefits
Review Committee
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 committee. It will be the role of the committee 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 Benefits Review Committee can 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.
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Stages of the review and appeal process
There are three stages to the review and appeal process.
Stage 1 – Internal review
This is an administrative process only. 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 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 them or the client representative
any other appropriate means of assistance available to the applicant
The original decision maker completes a Review of Decision submission (template
available in HIYA) and makes a recommendation.
The submission is forwarded to the manager who will make a decision on the
internal review.
The manager will decide to either:
uphold the decision
uphold the decision in part or
overturn the decision.
Note: HIYA should be updated with the outcome of the internal review. The
applicant must be advised by letter of the decision made. All letters are available
in HIYA.
Stage 2 – Benefits Review Committee
Where the internal review outcome is not favourable or only favourable in part for
the applicant, the decision must go before the Benefits Review Committee without
any further request from the applicant.
Where the internal review fully overturns the Ministry’s decision the issue will
generally be resolved. However the applicant may still want to go to the BRC.
This is their right and it can occur even though there may be no issue for the BRC
to consider.
Where a decision is to go to the BRC for a hearing a Report to the Benefits Review
Committee needs to be completed. The information from the internal review will
generally form part of the Report to the Benefits Review Committee. (The
template for this report is available in HIYA)
Just because the matter has been referred to the BRC, this does not prevent the
matter being re-looked at if new information is provided.
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A committee has three members. Two members are Ministry of Social
Development representatives and the third is a Community Representative
appointed by the Minister for Social Development. Committee members should
not have had any prior involvement in the case to be heard.
The committee must act independently of the Ministry and make a decision within
the law. The committee will look at the relevant Law and Policy and how this
should be applied in the particular situation and whether the decision was fair and
reasonable in line with the relevant Law and Policy.
Stage 3 – Appeal Authority hearing
Where the original decision is upheld (or partially upheld) by the Benefits Review
Committee, the applicant may apply for an appeal for the matter to go before the
Social Security Appeal Authority (SSAA).
The SSAA is an independent judicial tribunal administered by the Ministry of
Justice.
The Ministry is required to file a report setting out all the relevant information
relating to the BRC decision. This report is known as the Report to SSAA report. A
copy of this report is sent to the applicant. The Ministry’s Appeal Officers (part of
Legal Services) prepare the Report to SSAA.
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Legislation
Sections 391 - 394 of the Social Security Act 2018
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
unapportioned excess amount the beneficiary
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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.
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Committee
393 Benefits review committee
(1)
Every benefits review committee is established, and operates, in
accordance with Schedule 7.
(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.
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Schedule 7 Benefits review committees
1
Establishment
The Minister must establish at least 1 benefits review committee for every
MSD office where decisions or recommendations in relation to the matters
to which this Act applies are made or were made.
2
Membership
Every benefits review committee must consist of—
(a)
a person who is—
(i)
appointed by the Minister; and
(ii)
to represent on the committee the community’s interests;
and
(b) 2 MSD employees appointed by the chief executive, and—
(i)
from time to time; or
(ii)
in respect of the particular review.
3
Member to represent community’s interests
(1)
This clause applies to the member appointed under clause 2(a).
(2)
The member holds office on any terms and conditions that—
(a)
are not inconsistent with this Act; and
(b)
the Minister thinks fit.
(3)
The member—
(a)
may be paid remuneration at a rate and of a kind determined in
accordance with the fees framework; and
(b)
is entitled to be reimbursed for actual and reasonable travelling and
other expenses in accordance with the framework.
(4)
The member is not, just because of membership of the committee, to be
treated as employed in the service of the Crown for the purposes of—
(a)
the State Sector Act 1988; or
(b)
the Government Superannuation Fund Act 1956.
4
Secretarial and administrative services
All secretarial and administrative services required for the committee’s
purposes must be supplied by MSD.
5
Quorum, and committee’s decision, at meetings
At any meeting of the committee,—
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(a)
the quorum is the committee’s total membership; and
(b)
the decision of any 2 members of the committee is the committee’s
decision.
6
MSD employee cannot act as committee member if that employee
was involved in decision being reviewed
An MSD employee cannot act as a member of the committee if that
employee was involved in the decision being reviewed.
Sections 397-400 of the Social Security Act 2018
The legislation, which sets out the jurisdiction of the Benefits Review Committee,
is found in Section 397-399 of the Social Security Act 2018. These sections refer
to the Social Security Appeal Authority and, therefore in turn, apply to the
Benefits Review Committee.
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)).
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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
A decision of MSD—
or 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 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
A decision of MSD—
or 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
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(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
A decision of MSD—
or 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
A decision of MSD—
of a deceased beneficiary (
B) (a) to recover from B’s estate an amount
in excess of the amount to which B
was by 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
A decision of MSD—
of a beneficiary’s (
B’s)
(a) to recover from S’s estate an amount
deceased spouse or partner
in excess of the amount to which B
(
S)
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.
400 Appeal must be begun within 3 months of
notification or further allowed period
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(1)
An appeal under section 397, 398, or 399 must be begun within—
(a)
3 months after the date on which the appellant receives notification
of—
(i)
the confirmation or variation (if the appeal is against a
decision specified in section 395(a)); or
(ii)
the decision (if the appeal is against a decision specified in
section 395(b)); or
(b) a further period the appeal authority has under this section
allowed.
(2)
An appellant 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 appeal lies to the
authority; and
(b)
notice of the decision is given to the appellant 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 appellant as provided by those
regulations.
(3) The appeal authority may allow a further period within which the appeal
must be begun if—
(a)
the appeal is not to be, or has not been, begun within that 3-month
period; and
(b)
an application is made to it, before or after the end of that 3-month
period, to allow a further period; and
(c)
the appeal authority considers there is good and sufficient reason
for the delay.
The Social Security Regulations 2018 – 246-247 provide additional information
about the Review of Decision process
Social Security Regulations 2018 – 246-247
Reviews by benefits review committee
246 Application under section 391 of Act to be made
in writing
An application for review under section 391 of the Act must be made in
writing.
247 Procedure on review
(1)
The committee must, as soon as practicable after it receives an application
for review, review the decision.
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(2)
In reviewing the decision, the committee may, in accordance with the Act,
decide to confirm, vary, or revoke the decision.
(3)
The committee must give written notice of its decision on the review to the
applicant for review.
(4)
The written notice must include the reasons for the decision, and advice
that the applicant has, under sections 395 to 399 of the Act, a right to
appeal to the appeal authority against the decision if the committee has,
under this regulation, confirmed or varied MSD’s decision.
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Review of Decision Process Flowchart
The following flow chart and explanation are a general overview of the BRC
process (timeframe shown as maximum days).
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HIYA-ROD
The National Standard is that all benefit reviews are logged into a central
database (HIYA). This allows details of benefit reviews to be logged and viewed
from any site in the country and assists with the monitoring of the National
Standards. HIYA clearly shows the benefit review process and which stage each
review is currently at.
Template letters and reports have to be used and are accessed through HIYA.
HIYA makes extensive use of e-mail to update case managers, BRC co-ordinators
and managers (or equivalents in specialised units) of progress in a review. This
includes:
notifying case managers, BRC co-ordinators and managers at key points
such as when a review is logged and when it is resolved
reminding case managers and BRC co-ordinators that a particular stage is
nearly due to be resolved
alerting case managers, co-ordinators and managers that a particular
stage was not resolved by the expected date.
HIYA will ask you to enter key details about the applicant and details of what the
benefit review is about. This is to allow some pre-filling of letters etc and will
provide information about reviews for policy, training and information request
purposes.
Appropriate Resolution of RODs in HIYA
When an ROD is lodged it is an opportunity to revisit the original decision and
ensure that legislation has been applied correctly, this includes the appropriate
exercise of discretion. Once completed there are five possible recorded
resolutions for an ROD. These are overturned, upheld, upheld in part, withdrawn
and deleted.
Withdrawn
If the applicant no longer wishes to pursue their ROD they may withdraw their
application. This officially ends the process and there are no further review
rights. Before withdrawing an ROD you must look at the reasons the applicant is
withdrawing. If they are withdrawing because the decision has changed in the
applicant’s favour (i.e. overturned) you must update the system appropriately as
overturned.
Overturned
It is important that if you see that a decision has been wrongly made you should
take steps to correct the decision. This may be because of new information being
received which alters the Ministry’s position. If the original decision has been
changed for whatever reason this should be recorded in HIYA as overturned and
not withdrawn.
Upheld in Part
This is similar to an overturned decision but only part of the decision has
changed. For example, if a Temporary Additional Support review concerns the
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inclusion of two items and after a second look it is found that one of these items
should be included while the other should not this decision has been upheld in
part.
Upheld
When a second look has been taken and the decision is confirmed as lawful and
correct this decision is upheld.
Deleted
If a record is a duplicate or was not intended as an ROD (i.e. Medical Appeal or
Service Complaint) this may be deleted. Please note that many of the records
submitted for deletion can actually be edited to resolve the error.
To get into HIYA-ROD:
For more information about how to use HIYA please access the ”HIYA ROD
Training Pack” through the following link:
http://doogle.ssi.govt.nz/working-here/learning-development/coaching-
mentoring/review-decisions/index.html
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Process for multiple Review of Decisions or
more than one client
Some scenarios can make an ROD seem quite complex. These include where
there is more than one decision being reviewed or where there is more than one
client.
Where there is more than one decision being reviewed you need to establish if
the decisions were interconnected. An example might be if someone is reviewing
the establishment of a debt as well as the recovery or the cancellation of a benefit
and the subsequent creation of a debt. If the decisions are interconnected it is
fine to deal with them in the one report. If there are two unrelated decisions,
such as a the commencement date of Temporary Additional Support and declining
a Training Incentive Allowance these must be dealt with in two separate records.
Two separate reports are required in this instance. This way the statistics in
HIYA-ROD will more accurately reflect the amount of reviews that are upheld or
overturned. In these situations it is sensible to hear the two issues at the same
hearing though so as to ensure it is convenient for the client.
Another situation is where you have a couple who have had a decision that affects
them both. The first thing that needs to be established is whether one or both of
them have review rights. When a debt is created on both clients record both
clients will receive review rights. Where a benefit for a couple is declined review
rights only go to the primary partner. The easiest way to check this is to look at
the letters that went out. If only one partner has review rights only one HIYA-
ROD record is required. Where both partners receive review rights and both
review the decision, there needs to be two records in HIYA-ROD to ensure that
the recorded results are statistically valid. However, to ensure that staff do not
have the arduous task of completing two largely identical reports it is acceptable
to complete one report for both parties and attach it to both records.
If you come across one of these scenarios and you’re not sure what to do please
feel free to contact a member of the National Office Review and Client
Representative team.
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Shared care - third party involvement
Sometimes a caregiver seeks a review of decision because the Ministry does not
consider them to be the principal caregiver for their child and are therefore not
eligible for a benefit, usually Sole Parent Support.
When a review of this type is received the Ministry needs to reconsider who the
principal caregiver of the child is in terms of sections 195-196. The outcome of
such a review could potentially affect the entitlement of the caregiver who was
determined to be the principal caregiver and granted a ‘Sole Parent’ rate of
benefit.
Natural justice principles require that an affected person has an opportunity to be
heard. Where sections 195-196 is in dispute both parents are potentially
affected, therefore both have a right to be involved in any decision that may
affect their own entitlement even if they were not the party who sought the
review.
The BRC process remains unchanged in sections 195-196/shared care cases.
However it is recommended that the Ministry advise the other caregiver that a
review of decision has been lodged which could affect their benefit entitlement.
This should be done via letter as soon as the RoD is acknowledged.
Any response or fresh evidence received by the Ministry from the principal
caregiver must be documented, considered as part of the Internal Review and
included in the Report to the BRC.
If, after a reasonable time, no response is received from the principal caregiver, it
must be presumed that they have nothing further to add to the evidence already
with the Ministry. This should also be included in the Report to the BRC.
Below is the Link to the doogle site for RoD templates, which includes a letter
template that has been developed for these situations.
http://doogle.ssi.govt.nz/business-groups/organisational-integrity/client-
advocacy-and-review/review-and-client-representatives/letter-templates/letter-
templates.html
If you have any queries, please feel free to contact your legal advisor or the
Review and Client Representative Team at National Office.
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Confidential Information
A key part of the Ministry's case may rely on information supplied by an
informant who wishes to remain anonymous. A request for anonymity may, for
example, be for fear of retribution if the applicant discovers who has provided
information to the Ministry.
If the Ministry wishes the committee to consider any such confidential
information, then the Ministry cannot withhold that information from the
applicant. If the allegations are to be used against the applicant, then the
applicant has a right to know the statements made against them and to have an
opportunity to respond to such statements. However, this does not necessarily
mean the disclosure of the identity of the informant to the applicant. If the
identity of the informant is withheld, then this may affect the weight of the
evidence, in its consideration by the committee. The Ministry should ensure all
identifying factors regarding the informant are removed.
Examples
Example 1: A Review of Decision is received for an applicant who has been
declined a Youth Payment. Part of your decision has been based around the
contents of the report from a Youth Payment Assessment Provider (Barnardos.
This report compiled by Barnardos contains information and quotes made by the
applicant’s parents/caregivers on a confidential basis.
Generally a copy of the full assessment report should be provided to the BRC and
the applicant so that it is transparent what information was used by the Ministry
to make its decision.
There may be some situations where certain, sensitive, information should be
withheld as disclosure would involve an "unwarranted disclosure of the affairs of
another individual.” under the Privacy Act, or where it is necessary to "protect the
privacy of an individual" under the Official Information Act. - You should always
seek legal advice on a case by case basis if you are unsure if information should
be withheld.
Example 2: An investigation into an applicant’s benefit entitlement is completed
and part of this investigation required witness statements from a third person.
This person may wish to remain anonymous but the statement is detailed and
helped you make the decision that the applicant was not entitled to that particular
benefit assistance. You may use this statement but must remove name of the
third person or any identifying factors that may lead to the identification of that
person.
Note: If in doubt, refer the issue to the Ministry’s Privacy Officer for further
advice. Click link below to Doogle site for information on Legal services.
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Review Process Stage One: The Internal
Review
Introduction
The first stage in the process is to re-examine the decision being reviewed. It is
important that any new information provided by the applicant is taken into
account at this point.
When you do not have to complete the internal
review template
If you find that the original decision made was clearly incorrect it may be
unnecessary for you to complete the Internal Review template. A discussion with
your manager or another senior staff member may be sufficient. Ensure that any
decisions made are documented on the applicant’s file, in HIYA-ROD and in CMS.
HIYA should always be updated to reflect the decision and fully noted.
Below is an example of what a note in HIYA-ROD could state:
“On [date] [include details of what has happened] has led to the decision being
overturned. This has been checked with the service manager who has agreed
decision needs to be overturned. An Internal Review submission has not been
completed. The outcome letter has been sent to the applicant advising that the
decision has been overturned”
How we make decisions?
The first step is to ascertain what the law is and what the criteria is for the
decision under review.
The Social Security Act 2018 provides that MSD is, with the authority of the
Prime Minister, responsible for the administration of the Social Security Act, and
grants all benefits.
MSD means the department or the chief executive, and includes a person acting
under delegated authority from the Chief Executive.
Ministry of Social Development staff, by a delegation under section 41 of the
State Sector Act, makes decisions about benefit entitlement on behalf of the Chief
Executive.
Benefit entitlement is based on certain conditions one must meet in order to
obtain the assistance they seek.
These conditions are set by legislation, regulation, programmes and policy. It is
necessary to know what these conditions are in order to ascertain the correct
benefit entitlement.
Sources of Law
Types of law that govern our decision making are:
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Acts of Parliament
Some relevant examples are the Social Security Act 2018 or the New
Zealand Superannuation and Retirement Income Act 2001. These are
referred to as the legislation. Acts of Parliament (legislation) are the
primary source of law for the Ministry’s decision-making.
Regulations
The Social Security Regulations 2018 deal with various topics including
Accommodation Supplement, Childcare Assistance, Funeral Grants,
Temporary Additional Support, work obligations, the SuperGold Card etc.
http://doogle.ssi.govt.nz/map/legislation/regulations/index.html
Above link to be updated
Welfare Programmes
These are programmes made under s101 of the Social Security Act by the
Minister who, with the authority of the Prime Minister, is responsible for
the administration of the provisions in the Social Security Act relating to a
Minister. Some examples are the Employment and Work Readiness
Assistance Programme, Special Needs Grant Programme, the Student
Allowance Transfer Grant Programme and the Recoverable Assistance
Programme.
http://doogle.ssi.govt.nz/map/legislation/welfare-programmes/index.html
Above link to be updated
Ministerial Directions
A Ministerial Direction provides guidance and instruction on how to apply a
specific section of legislation where staff have to exercise discretion in
making decisions. The Ministry is required by section 7 of the Social
Security Act to comply with Ministerial Directions. For example section 347
provides discretion to the Ministry to make advance payments of benefit if
it would best meet the immediate needs of the beneficiary. To assist with
exercising this discretion, the Minister has issued the Direction in relation
to Advance Payment of Benefit. The use of the Direction helps to promote
consistency in decision making and to provide guidance on when it is
appropriate to make an advance payment of benefit.
http://doogle.ssi.govt.nz/map/legislation/ministerial-directions/index.html
Above link to be updated
A Ministerial Direction cannot limit the Ministry’s ability to exercise its
discretion as it is expressed in the specific wording of the section of the
Act, and a Direction will retain discretion within its instructions which will
allow the Ministry to take into account individual or exceptional
circumstances.
Case Law
Case law is the body of law built up from decisions of the Courts and
Appeal Authority. Some case law has a strong precedent value. What this
means is that you should come to the same decision as the earlier case,
where the facts and law of your case are the same or very similar. Other
case law is indicative, rather than binding. What this means is that earlier
decisions will give you guidance on how a court is likely to decide future
cases. An example is Ruka v. Department of Social Welfare which
concerned what constitutes a relationship in the nature of marriage. It is
important to remember that a Court case may be subject to appeal, there
may have been a change in the legislation since the case or the facts of
the case may be different from the one currently before the decision
maker.
Try to set out how the principles of the cases you quote are relevant to the
case the BRC is going to consider. Don’t just say that according to “Ruka”
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the Ministry made the right decision. You must identify what factors in the
case supports your decision.
When you write your report, you will need to set out the relevant Law. You should
consult your regional legal advisor if you need any assistance in applying or
referring to relevant case law.
Mandatory versus Discretionary
Legislation, like the Social Security Act 2018, is made up of rules and criteria that
must be met before certain things can occur.
For example, certain criteria must be met before a benefit can be granted. These
are mandatory. An example of mandatory criteria is the stand down which all
clients must be subject to when they apply for benefit, or the age a person must
be before they qualify for NZ Superannuation.
You can often tell if these conditions are mandatory because the legislation will
say "must". Section 113 (1) of the Social Security Act states that:
A beneficiary must without delay notify MSD of a change in the
beneficiary’s circumstances if—
Where the law is not mandatory, the decision maker will usually have the power
to make a choice. If the decision maker has a choice it is referred to as using
their discretion. Sometimes the discretion is limited and sometimes it is wide. An
example of a wide discretion is Emergency Benefit under s63 of the Act.
You can tell if discretion is used as the Legislation will say “may” or will
specifically refer to discretion. For example, s63 provides:
MSD may grant an emergency benefit………….
Discretion and Policy
The Ministry has extensive policies which apply to the benefit system. There will
often be extensive policy where discretion is used, as well as a Ministerial
Direction. This helps to ensure the exercise of discretion is consistent, and gives
the decision maker guidance in how to exercise their decision.
The Ministry’s policy is found in MAP in Doogle. Sometimes it is necessary to refer
to old Policy Manuals when it is an old decision which is being reviewed.
The policy must not be rigidly applied. The process must be consistent but the
applicant’s individual circumstances must be considered and room made for
individual circumstances. The decision must however always be lawful and comply
with the legislation.
If a decision has been made contrary to policy and to an applicant’s disadvantage,
there must be a very compelling reason to do so.
Fact Finding
The second step is to find out all the information that is relevant to the decision
that is being made. A client’s full and correct entitlement cannot be established
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without first knowing all of the relevant facts. This is often known as finding out
the full circumstances of the client.
Establishing the facts requires completing the appropriate application forms,
obtaining reliable evidence and seeking any further information that is relevant.
An example of this further information may include statements from witnesses,
and any other supporting documentation that was used in making the original
decision.
It is important to fully record the facts and retain any documentary evidence. By
doing this at the time of application, it will ensure that a proper decision is made
using all the relevant facts and, if a review of decision is lodged, the report writer
will not have to recreate the full factual situation.
If you have some doubts about the decision this should be raised with the
manager, co-ordinator or site expert who may seek an opinion from legal
services.
Obtaining a Legal Opinion
Service Delivery solicitors are called upon from time to time to provide advice on
Reviews of Decisions to either case managers, investigators or managers. This
often happens where there are difficult or unusual legal issues involved.
Helpline can also be used to assist in determining that the correct decision has
been made in the first instance.
Legal Advice and Legal Submissions
Legal advice and legal submissions and the way you should use them in relation
to BRC hearings differs.
When you are completing an Internal Review or writing up a Report to the BRC
you can seek
legal advice from your regional legal advisor if you are unsure of
how the legislation and/or policy apply to your specific case. This advice will
probably be provided in email form addressed to you as a staff member of the
Ministry. This advice is internal to the Ministry and is protected by legal privilege.
It should not be disclosed to anyone outside the Ministry, quoted in a Report to
the BRC or attached as a document to the Report to the BRC. It is internal legal
advice and should be treated as such. In addition you should also avoid writing
"we have received legal advice and it supports our decision etc." This is
inappropriate as it does not further the Ministry's case (it is not an argument or
reasoning supporting the decision) and can only be viewed as trying to place
pressure on the BRC.
Note if you want to rely on and use the legal advice provided by your legal
advisor you should ask them to check your Report to the BRC when drafted to
ensure that the way you have used the legal advice is accurate.
Occasionally it may be necessary to attach a
legal submission to a Report to the
BRC or to provide a legal submission at the request of the BRC panel. This is
different to legal advice as it is a submission prepared specifically for the purpose
of presenting to the BRC. If you are required to present a legal submission to a
BRC you should make it very clear when you are speaking to your legal advisor
that the submission will be presented at the BRC and is not simply internal legal
advice.
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If you are in any doubt as how to use a piece of legal advice contact your regional
legal advisor.
Completing the Internal Review Template
Once you have gathered your relevant documents and facts and you are satisfied
that the decision has been made correctly and have sourced the appropriate
legislation and policy you need to set out the key reasons why you consider your
reason to be correct on the Internal Review Template. This is submitted to your
manager (or other relevant senior member of staff such as a Service Centre
Trainer or Investigation Manager).
Remember that if no evidence can be found to support the decision made you will
need to reconsider the Ministry’s position.
It is important that if you see that a decision has been wrongly made you should
take steps to change the decision. The Ministry can correct a wrong decision at
any stage in the process.
A review should not be seen as any sort of attack on the Ministry, or the original
decision maker’s integrity. It is a person’s right to challenge a decision.
If your decision is upheld the Internal Review template will become part of the
evidence used to support your Report to the BRC.
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Stage Two: The Report to the Benefits
Review Committee
Introduction
The report is a crucial document in the BRC process as it tells the story to the
Benefits Review Committee who are not familiar with the events of the case. It
may also help clarify matters for the applicant so that, although they may not
agree, they may understand why the particular decision was made. The report is
also to ensure that the process is open and the applicant knows fully how the
Ministry came to the decision.
There will be “experts” in your region or business unit that have undergone the
report writing training. Utilise the knowledge of these experts to assist you when
you are writing your report.
Report Content
Decision being reviewed
You need to write down the decision that the applicant has asked to be reviewed.
What is the decision the applicant is reviewing i.e. the decision to grant
Temporary Additional Support at $xx;
An indication of what the applicant is seeking i.e. due to not including the
hire purchase payments for the motor vehicle, the applicant wants..;
What benefit assistance is involved;
The date the decision was made.
This should accurately and concisely summarise what the review is about. It is
important because it will focus the mind of the report reader to what is at issue.
The Supreme Court decision in
Arbuthnot v Chief Executive of The Department of
Work and Income [19 July 2007] clarified the scope of a review of decision. It is
helpful to identify what issues are in contention, but what is being reviewed
remains the final outcome that the Ministry came to, rather than the individual
factors considered by the decision maker which led to that outcome.
An example is:
The decision to pay Temporary Additional Support at the rate of $.... due to
not including the hire purchase payments for the motor vehicle of 01 May
2000.
Summary of facts
You will need to set out the facts relating to the actual decision, set out a
description of the applicant’s present circumstances and what income support, if
any, the applicant is currently receiving. If you refer to any documents or
applications then you must attach the document to your report
see list of documents.
The file and computer records should have all the details you need to write the
summary of facts. Sometimes it may be necessary to obtain further facts. This
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may mean that you have to contact the applicant and ask them for further
information. Make sure you note, date and time frame any requests for extra
information in HIYA ROD as this may affect your timeliness.
Include only relevant facts for which the Ministry has reliable sources of
information. Opinion should not be included here, and the use of emotive
language should be avoided.
Aim to follow a chronological (time) order in setting out what happened.
The Law and Policy
In this section, set out the particular law and policy that affects the decision.
Make sure you have the correct legislation. If you are having trouble finding the
correct legislation, go into MAP under the heading of the topic of the review. The
Introduction page will generally provide a “link” to the appropriate legislation. For
example, if you receive a review about the date of grant of a Supported Living
Payment go to:
Main Benefits – Supported Living Payment – Commencement Date (bottom
of the page) – Section 311 and Section 316, Social Security Act 2018.
You should be certain to clearly distinguish between legislation and policy. If you
are unclear about this you should seek some advice.
You must use the wording that was in force when the decision was made. The
Social Security Act often changes and it is important that you include the correct
wording. If you need help, please seek advice from your Service Centre Trainer,
Manager or Legal Advisor.
Consider whether there are any relevant Court cases or SSAA decisions. This
could include cases that support the case of the Ministry or the applicant.
Quote the legislation, welfare programmes, regulations, ministerial directions and
policy relied on. Often, for simplicity of reading, these can be attached with the
list of documents. Alternatively you can copy the whole section into your report.
Refer to the section numbers in the legislation and the paragraph
numbers/clauses in the programmes, regulations and directions. MAP does not
have any paragraph numbers so it is not possible to refer to paragraph numbers.
Applicant’s case
It is important that the applicant’s case is fairly represented. This includes any
points raised by their representatives.
You need to clearly state in this section why the applicant wants to review the
original decision. You also need to ensure that you include all of the points that
the applicant wants considered and any additional facts that are relevant to the
case. This information can often be retrieved from the application for review, or
they may have discussed some of their reasons with you. It is inappropriate to
introduce elements of the Ministry’s case in this section.
Please note: It is not sufficient to simply refer to an attached document.
Case for the Ministry of Social Development
The Ministry’s case should be summarised and the evidence relied on or to be
given by any witnesses in support, set out.
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Set out how the facts upon which the Ministry relies fit:
the law
the policy guidelines
You should set out either:
why the law does not allow the applicant to receive what they want; or
looking at all the relevant circumstances the exercise of the discretion was
correct.
Areas of conflict over the facts of the case should be set out in full.
If the applicant’s review is that the Ministry has the facts wrong, set out why the
Ministry considers it has the correct facts and the reasons for this.
If the applicant’s review is based on the Ministry not considering all facts, set out
all the facts including that which the applicant claims have not been considered
and show how they have been considered.
If the applicant’s review is that the Ministry has wrongly interpreted the law, set
out how the law has been interpreted and why this is considered the correct
interpretation.
If the applicant’s review is that the Ministry has not properly exercised discretion,
set out how the discretion was exercised and why this was correctly exercised.
If the applicant has provided the reasons why they have reviewed the decision,
then it is appropriate to set out the Ministry’s response to those reasons. This
may assist the applicant in understanding why the particular decision was made
even if they do not agree with it.
Conclusion
In this section, set out:
that the Ministry considers the decision under review to have been made
correctly
a very brief and concise statement of the reasons for the decision
For example:
The Ministry submits that, having regard to the circumstances of this
particular case, the decision to decline assistance was appropriate
considering in particular the legal requirement that education be provided
free, if a school ski trip and an alternative English class were a part of S and
S’s education, then their school is obligated to provide them free of charge.
Considering each of the different programmes – Temporary Additional
Support, Special Needs Grant, Advance of Benefit – it was considered that
the criteria relevant to each was not meet and that there were not grounds
for exercising any discretion to grant assistance.
Accordingly, the decision to decline assistance was correct and should be
upheld.
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List of Documents
Set out a list of the relevant documents and attach a copy of all the relevant
documents. Such documents may include:
Application for Review of Decision
Applications and/or review forms(for the form of assistance that is under
review)
Any subsequent assessments and/or calculations
Internal Review
Any relevant Client Event notes
All referenced legislation and policy
See Panel Members pack regarding confidential information.
Layout
The report should look neat and tidy, professional and should be easy to read and
follow. This should be straightforward as the HIYA templates format the
document for you.
Law and Policy
The HIYA templates will prompt you as to how the legal referencing within your report should
be completed. For example:
The legislative basis for Disability Allowance is set out in Section 84-89 of the
Social Security Act 2018 (“The Act”).
Section 84-89 of the Act is subject to a Ministerial Direction under section 7 of
the Social Security Act 2018 .
Further legislation and Policy is as follows:
Ministerial Direction – Disability Allowance
Use a logical order. This could be a chronological order for the facts. This could
mean referring to the legislation, then the Ministerial Direction and then the
Policy. Use bullet points or numbering if it helps to clarify a list.
Do not be afraid to use white space. Cramming too much onto a page makes it
difficult to read.
Numbering
Number every page of the report. HIYA templates will do this for you
automatically.
When numbering appendices this numbering should be clear and distinct from the
numbers on the report itself.
Language
Use simple, plain English words where possible. Sometimes it is necessary to use
complex words as precision is required and it is important to use the correct
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terminology. A common mistake is to refer to the Ministerial “Directive” when it is
a Ministerial Direction.
Do not use emotive language, but set out the facts in a neutral way. For example,
instead of:
“The client took far too long to get back to me with their reasons for leaving
the job”
Say:
“It took four weeks for the applicant to provide reasons for leaving their
job.”
Avoid using jargon, particularly internal jargon. Often the Ministry staff will
understand what is being spoken about but the applicant does not. By having
clear communication, it will help the applicant understand the reasoning for the
decision.
Common examples are referring to computer programmes such as CMS, DREW,
HIYA, etc. Minimum standards are also often referred to, without an explanation
of what they actually are.
Be consistent in what you call something. If the person is an applicant, always
refer to them as an applicant.
Refer to people in the report in the third person instead of using names. Staff
should be referred to using their titles. For example: Service Centre Manager or
Case Manager or Investigator. The client should be referred to as ‘the Applicant’.
We use the third person for two reasons firstly, so our reports are in line with
those used by the Social Security Appeal Authority and secondly, as it makes the
report less personal.
Sentences
Sentences should be short and simple. Each sentence should have one idea only.
Try to use active sentences. Avoid using passive sentences. That is, try:
“The applicant applied for Jobseeker Support
Rather than
“An application for Jobseeker Support was made by the client.”
If in doubt, refer to the MSD style guide which is available in Doogle at the
following link:
http://doogle.ssi.govt.nz/resources/helping-staff/policies-
standards/communications/style-guide.html
Process after the Report is completed
The report is submitted to your manager (or other relevant senior staff member
such as Service Centre Trainer or Investigation Manager) to be checked.
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Check with your regional/area co-ordinator for the hearing arrangement process
operating in your region or area. In most cases, you will need to send multiple
copies of your report to the regional co-ordinator so that they can send a copy to
the applicant and to the BRC panel that is arranged to hear the case.
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Presenting to the Benefits Review
Committee
You will be invited to attend the Benefits Review hearing to present your report to
the committee. If the applicant chooses not to attend the hearing then you will
not have to attend either and the case may go ahead on a “papers only” basis.
If you have never presented to a Benefits Review Committee before you may like
to take a support person with you. Ensure that you notify your BRC co-ordinator
in advance if you intend to do this so that they can note the inclusion of this extra
person on the invitations to the hearing that will be sent out.
It is important that you do not meet with or socialise with members of the
committee immediately prior to or immediately after the hearing. You may know
members of the panel from working with them, but it is important that you
maintain a high level of professionalism and ensure that the panel maintains their
position of impartiality. Discussions held prior to the commencement of the
meeting can be easily misinterpreted by the applicant.
The BRC panel sets out the procedure for the hearing. The panel should tell you
what the procedure is at the hearing. The hearing is meant to be relatively
informal. Normally the Ministry will present their case first, as it is their decision
that is being reviewed. Sometimes (depending on the procedure that the panel
sets down) this can involve you reading out your report to the panel. In other
cases the panel may just request that you read through specific parts of the
report.
The panel may also ask you questions to clarify points that have been raised in
your report. Generally questioning is directed through the chairperson of the
committee; however the committee decides how to run the hearing and may
decide that direct questioning is allowed. It is important that you remain calm and
respectful during the proceedings, and remember that it is the decision that is
under review – not you!
The panel will then ask for the applicant to state their case, and may seek further
clarification from them as well.
For more help on presenting to a BRC see Appendix 1 “Presenting a
Review of Decision to a Benefits Review Committee”.
Please note: Both you and the applicant should remain in the hearing while the
other presents their case. This is to ensure that both sides get to hear each
other’s arguments and have an opportunity to respond (if necessary).
Once the panel are satisfied that they have enough information they will ask both
parties to leave and will consider their decision in private. Again, you should
leave with the applicant and not remain behind with the committee.
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.
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The Hearing Outcome
The BRC panel will forward you a copy of their findings report within twelve
working days of the hearing taking place. This report (and any accompanying
material) is considered critical data and should be stored on the client’s file.
The applicant will also have been sent a copy of the report along with a covering
letter.
It is important that you read the report carefully and adhere to any directions
given by the BRC panel. If the decision has been wholly or partially overturned
the applicant will generally expect to be contacted by you in order for the decision
of the BRC to be implemented or to advise them that it has been. Such
instructions should be adhered to within 24 hours.
If you are unsure how to implement the decision speak to your manager or a
senior colleague about how it should be done. You cannot simply ignore the
decision if you disagree with it or don’t think it makes sense. Alternatively, if the
decision of the BRC is unclear you can ask the chairperson to reconvene the
committee and issue a clarification. Such an arrangement may be made through
the co-ordinator. You must advise the applicant and their representatives that
this is being done.
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Frequently Asked Questions
What is an Internal Review ?
An Internal Review is an internal process to check decisions made by the
Ministry of Social Development employees. It is an opportunity for the
person who made the original decision to review all of the facts and any
additional information to ensure the correct decision was made.
Who can ask for a Review of Decision?
Any person (or their agent) who is unhappy with a decision made by the
Ministry of Social Development that directly affects them can request a
review of the decision be made.
What if I agree with the applicant?
The applicant may clarify information previously provided or provide
additional information; or a mistake may have been made. This may
mean the original decision was incorrect, according to the legislation, and
you may overturn the original decision.
What’s the difference between overturning, withdrawing and deleting?
If the original decision has been changed this should be recorded as
overturned. When the applicant no longer wishes to proceed with their
review this should be withdrawn and where there is a duplicate record or
the applicant intended for the review to be treated as something else
(e.g. a service complaint or medical appeal) this should be submitted for
deletion.
What is the difference between an Internal Review and a BRC?
An Internal Review is an administrative process while a BRC is a
legislative process provided for in sections 391-394 of the Social Security
Act 2018.
When do Benefit Reviews happen?
A case will go to Benefit Review whenever an Internal Review confirms or
partially confirms the original decision made. This is called "upholding or
partially upholding the decision".
Do I have to do an ROD or BRC?
Yes, you are legally required to action a request to review any decision
an applicant (or their agent) does not agree with.
What help can I get to do this?
Your Manager, senior staff members, service centre trainers, your
regional legal advisor, National Fraud Investigators, Helpline, the
National Office Review and Client Representatives team and the
regional/area BRC Co-ordinator can all help you complete an internal
review or benefit review report.
What do I do once I’ve written my report?
Once you have finished your report this will go to a designated staff
member to be QA’d. This will usually be your manager. They will look at
your report and make sure it is in line with the criteria set out in the
manager’s checklist. They may come back to you with a few changes
they require. You will need to make these before the report is signed off
and ready to progress to the next stage.
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Do I have to attend the BRC hearing?
Yes, if the applicant is going to attend you will have to as well. However,
if the applicant is not attending, you will not have to either. Both parties
should remain present during the hearing so they can hear the other
side’s case and have the opportunity to respond (if necessary).
Can I get legal advice while doing an Internal Review or Report to the BRC?
Your regional legal advisor is available to provide legal advice at any
stage before a hearing. You can call for advice from your regional legal
advisor at any time.
When should I ask for legal advice?
If any of the following situations apply you should consider seeking
advice from your regional legal advisor:
If you are unsure of the legal basis of your decision;
If you are unsure of how legislation should be applied;
In a particularly complicated case;
If you think the situation could escalate to a stage where you feel
uncomfortable in being able to manage the internal review or benefit
review report;
If a solicitor is involved on behalf of the applicant;
If the applicant indicates they want to go to the Social Security Appeal
Authority.
You must bear in mind that legal advice is just that – only advice. Ultimately it is
the Ministry itself that is responsible for the decision. Once you have sought and
received advice you should discuss it with your manager and if necessary the
appropriate staff at National Office.
Who is on a BRC?
A committee has three members. Two members are Ministry of Social
Development representatives and the third is a Community
Representative appointed by the Minister for Social Development. None
of the committee members will have had any prior involvement in the
case heard at the hearing.
What if an application for review is made more than three months after written
confirmation of the original decision?
You should complete the Internal Review. If the Ministry’s decision was
not made correctly, you should overturn it. If it was made correctly, then
the BRC will need to decide whether they will hear the review. A BRC will
hear a review outside of the three month period if they consider that
there is a good reason for the delay. For more information on this see the
“Out of Time Reviews” section of this pack.
What happens if the BRC has no jurisdiction to hear the case?
The Committee can only hear reviews on certain matters. Sections 395-
399 of the Social Security Act lists what reviews can and cannot be heard
by the committee. If a review is outside of the jurisdiction of the BRC and
the applicant is wanting the review to go to BRC, then the co-ordinator
should forward the case to the committee to decide the point (e.g.
whether or not they can hear the case). The committee will then prepare
a report explaining the reasons for the conclusion that they have
reached.
The applicant must be given the chance to make submissions on the
subject of jurisdiction and unless both parties agree otherwise, there
should still be a hearing. The question of jurisdiction must be determined
by the BRC.
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As a presenter, what do I do if the panel adjourn and ask me for more
information?
If the panel needs more information it is the presenter’s responsibility as
the representative of the Ministry to provide anything requested to them.
The chairperson will generally write to you outlining exactly what they
require and will provide a timeframe for you to get the information to
them. This information will be forwarded on to the applicant as well. They
will also advise to whether you need to provide anything further and if
you are required to attend a reconvened hearing.
Can the Ministry change a BRC decision?
Generally the decisions of a BRC will bind the Ministry. However, in the
Arbuthnot decision the Court recognised that the CE could use his power
of review to reconsider a BRC decision. The Court gave guidance on when
such a review would be appropriate. The Court held that beneficiaries are
entitled to expect the Ministry's decisions, once made, will not be
disturbed without very good reason. It is required that there has been a
material change in the circumstances of the client or other factual
information received which changes the clients’ entitlement to receive a
benefit. Refer Supreme Court decision in
Arbuthnot v Work and Income
[July 2007]. Such cases must be referred to the National Office review
and Client Representatives team for advice.
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Appendix 1: Presenting a ROD to a BRC
Presenting a Review of Decision to a
Benefits Review Committee
This guide is to help the Ministry present a Review of Decision (ROD) at a Benefits
Review Committee (BRC).
The BRC process is independent and less formal than a court hearing. You are not
under oath.
The panel will be waiting for you and the applicant. One panel member will then
come and collect you both and the hearing will commence. It would be expected
the chairperson will start the proceedings with a quick introduction and outline
the BRC process. The BRC can start proceedings any way they want so don’t be
surprised if it differs.
Before and during the hearing you need to remember that the BRC are impartial
to the Ministry so you need to act independently of them but also in a way that is
perceived as impartial. For example, it is possible you may know someone on the
panel. It may not appear to the applicant that the panel is impartial if they see
you talking to a panel member about the weather. To the Applicant it may
appear you are chatting about the review of decision.
The chairperson will ask if the report has been read and understood. This means
no need for verbatim, just a quick summary of the key facts and legislation.
Generally you will present the Ministry’s case first. It is worth remembering that
this is a review of a decision made by you or a fellow staff member on behalf of
the Ministry and not a personal one. Keep it friendly. It is expected you will
answer questions that the BRC may have. This helps them conclude with a fair
and impartial outcome. It may also help to clarify matters for the applicant.
Once you have presented the Ministry’s case then it’s the applicant’s turn. This,
like the Ministry’s, is their opportunity to state their case and answer questions
that the BRC may have.
If submissions are presented at the hearing you will need to read through to
ensure there is no new information. You can ask the chairperson for a short
adjournment to read the submission. Should you find points or information that
requires a response it may be you can communicate it verbally at the hearing. If
it requires a written response you need to ensure that this is supplied to the BRC
panel and applicant. It may require a longer adjournment so this information can
be put together.
The BRC may require additional information. This is asked of the Ministry or the
applicant, or both. The BRC may require submissions on aspects of the Law. If
this is the case then the Ministry and applicant will be asked to supply this which
is likely to result in an adjournment for this information to be submitted. In this
case you would need to seek the legal submission from your solicitor.
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Once the BRC have heard both cases you both will be asked to leave so the BRC
can make their decision. Once they have you will be notified of this decision in
the Report of the BRC which is due within 12 days of the hearing.
If at the hearing the applicant does not appear, you are not required to present
the Ministry’s case and the review will be heard on papers only. The BRC will
meet and make a decision based on the information provided in the report. There
are a number of reasons why an applicant may not appear but it is always
important to encourage them to attend. Remembering this is their review and
often new information can be disclosed at the hearing and it may be the applicant
did not at the first instance find it relevant to advise the Ministry. This helps the
BRC conclude appropriately and in accordance with the law and principals of
Natural Justice.1
If this is your first time presenting to the BRC, you may like to take someone
along to support you. Ensure you notify the BRC co-ordinator before the hearing
so this can be communicated to the applicant. Likewise the applicant may bring a
support person. Some regions also allow staff to “sit in” on a BRC to watch how it
operates. You may wish to discuss the opportunity to do this with your manager.
If the applicant’s intensions are to bring a Solicitor, then you should discuss this
with your regional Solicitor if they should attend the hearing with you.
Should you require further assistance contact the Review and Client
Representative team in National Office. Below is the link to the ROD site on
doogle.
http://doogle.ssi.govt.nz/resources/helping-staff/procedures-manuals/review-
decisions/service-line-resources.html
1 See the Panel Members pack for more details on Natural Justice
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Appendix 2: 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:
1. Policy made by governments. In the Ministry we call this sector policy.
Governments will introduce legislation to give effect to their policies in law
2. 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 BRC 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
Social Security Act 2018
Judiciary
The branch of the state that decides disputes between parties independently and
in accordance with the law - i.e. Judges and tribunal members.
Tribunal
An independent body, similar to a Court, with a judicial function which is
established by legislation to decide disputes about a specific subject matter – e.g.
Disputes Tribunal and the Social Security Appeal Authority. Some tribunals have
a more investigatory and advisory function – e.g. the Waitangi Tribunal.
Social Security Appeal Authority (SSAA)
The SSAA is an independent tribunal established under section 401 and Schedule
8 of the Social Security Act 2018 to decide appeals on benefit entitlement. The
applicant has a right of appeal to the SSAA from a decision of the BRC or of the
Chief Executive personally (except for Out of Time decisions) and both parties
have a right of appeal to the High Court on questions of law. Every appeal is by
way of rehearing of the matter in full. The SSAA is administratively provided for
and run by the Ministry of Justice. Its members are appointed by the Governor-
General on the recommendation of the Minister given after consultation with the
Minister of Justice.
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Review Body
The BRC is an example of a review body. It is a review body established by
legislation but is internal to the Ministry of Social Development. The
characteristics of a review body include the composition of its members being
internally provided, or, in the case of the Community Representative, appointed
by the Minister and being administratively managed internally by the Ministry., A
review body such as the BRC take a “fresh eyes” approach and it may only
confirm, vary or revoke the original decision. It does not have the trappings of a
tribunal-type body, such as independent tenure, the right of appeal for both
parties, the ability to compel evidence, to order costs or to take any necessary
steps to carry into effects its decision.
Jurisdiction
Jurisdiction refers to the authority of a judicial body to decide a particular issue.
The sorts of disputes that a judicial tribunal such as the Social Security Appeal
Authority may consider are prescribed by statute i.e. sections 395-399 of the
Social Security Act 2018.
There might also be other reasons that a judicial tribunal or body may not have
jurisdiction to decide a case, for example, the dispute may have arisen in another
country, or the dispute may have already been decided by another judicial body.
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:
1. The rule that a person should not be a judge in their own case. This means
that you must act impartially when you sit on a panel.
2. The rule that a person must always be given a chance to be heard.
Refer to the Panel members’ information pack for more details
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