Susan St John: State failure to right clear wrongs

A few years ago, I went to see The Trial by Kafka. The audience was forced to walk from room to room trapped in a bureaucratic, persecutory nightmare. Finally, we ended up in a dark room full of smoke and barbed wire. I heard the inevitable gunshot with a sense of relief; now we could all go home. Kafka created so well an aftertaste of utter pointlessness and unredeemed frustration with the unrelenting irrationality of state behaviour.

Individuals arguing for justice have been caught up, Kafkaesque-like, at WINZ, Ministry of Social Development (MSD), ACC and IRD, where unresponsive officials impose anachronistic rules and laws made for a different time and era. For those who don’t cave in, there may be appeals to the Benefit Review Committee, the Social Security Appeals Authority, and then the daunting prospect of higher courts. Some disappear for years in the labyrinth of the Office of Human Rights Proceedings (OHRP) and the Human Rights Review tribunal (HRRT).

Getting a hearing in the HRRT can take years, an actual decision many more years and even then, an unlawful discrimination finding does not bind the Crown to reform the laws.

As years drag by, people affected lose their faith in truthfulness and rationality. Their savings run down and, with the unrelenting fight, they become sick and may die without any resolution. Like the irrationality of the worst Kafka play, the state can wilfully withhold for years, even decades, the power to correct obvious and incontrovertible wrongs. That can’t be good for democracy.

Over the years I have followed or been involved with many such cases where issues have been unresolved for decades. Here are five:

Kathryn, after a shocking life of abuse and trauma, was dobbed in by a vindictive ex-partner and imprisoned for the so-called crime of relationship fraud. Her children’s lives were devastated and her health lost. She is now a seriously ill beneficiary after fighting the MSD for 17 years in the courts: they insisted on release that she must repay $115,000 out of her meagre benefit. The MSD spent hundreds of thousands of dollars fighting to prevent the debt being wiped. In 2019, the debt still hangs over her and used against her when she applies for hardship assistance. When she dies, it will deplete her tiny estate and her five children will get nothing. Government could wipe the debt tomorrow but has turned the other way.

And then there is Ms F, investigated after an ex-partner alleged vindictively that she was not declaring income. An eight-year battle in the courts established the obvious, loans are not income and she should not have a $127,000 debt. But this landmark case has not brought justice to other beneficiaries treated similarly, or assurance that the state is even interested in clarifying the legislation. Nor has the nasty practice of encouraging dobbing in, especially by ex-partners, been denounced. So much for the politics of kindness!

Then there is the Child Poverty Action Group legal case against discrimination in Working for Families, begun in 2002 and finally heard in the HRRT after six years of fighting for the right to take the case. In the 2008 decision, the judge found the In Work Tax Credit was discriminatory, but let the government off the hook with weak arguments about justification. After various appeals, an inadequate ruling from the Court of Appeal saw CPAG take the issue into the court of public opinion rather than continue the expensive legal battle. By 2019, the discrimination had cost New Zealand’s worst-off families an accumulated $8-10 billion. Is it surprising that child poverty is so entrenched?

The CPAG case kept child poverty on the public and political agenda. In the 2011 elections four opposition parties, including Labour, had a policy to remove the In Work Tax Credit discrimination against income tested beneficiary parents. Labour has not talked about it since, except to shunt a review of Working for Families off to the Working Expert Advisory Group. Ultimately, removal of this discrimination is inevitable, because it will provide a cost-effective way to help meet government’s child poverty reduction targets, but the harm to children of years of neglect by politicians cannot be readily forgiven.

In March 2018, superannuitants affected by ‘the spousal provision’ policy (which may mean they get less or no NZ Super because their spouse has an overseas state pension) finally had their week in the HRRT. But a decision could be another two years away, and even if it finds for the plaintiffs, nothing will happen without government action. The Retirement Policy Research Centre and the Retirement Commissioner have complained about this outright discrimination for the past decade. Privately, politicians agree. In 2015, Jacinda Ardern described it in Parliament as a human rights violation. In early 2018 action was promised, there was supposed to be a review from MSD and an announcement in November, then talk of a cabinet paper in December, but not a whisper by early February 2019. Nearly two decades of inaction.

The latest outrage, concerning Maree Hennessy, a single parent with two young children, further illustrates the neo liberal obfuscation and impotency of the HRRT. Maree had been supplementing her benefit with a small part-time job. An accident in 2000 forced her to stop work completely in 2002 and she should have been entitled to earnings-related compensation. After an eight-year battle with ACC, she was awarded $89,000 in backdated weekly compensation which, after being treated as income and her benefit abated, should have given her $40,000 - or $5000 for each of these eight years. Except that she was given only a token $576, or just over a $72 for each year, as her ACC was deducted dollar for dollar from her benefit because of a wrongheaded principle that says you can’t have benefits from both Work and Income and ACC.

It took five years for Maree’s case to be heard in the HRRT. The decision, finally delivered recently, declared this is indeed unlawful discrimination. But in 2019, nearly two decades since the accident, she will still get nothing because: “…the government department can’t stop enforcing the law until the wording of the Social Security Act is changed”. At least the government conceded the case avoiding further court appeals, but in the meantime her dollar for dollar abatement has “caused years of severe financial strain for her and her family”.

Greg Robins, a senior solicitor at the Office of Human Rights Proceedings, claimed it was an important landmark decision: “It is disappointing that the abatement can’t be reversed, but we are pleased she has won a clear declaration about the Social Security Act 1964 and the law that replaced it, the Social Security Act 2018.”

That is sweet comfort for Maree. MSD’s deputy chief executive of service delivery, Viv Rickard, said “For those of our clients who are receiving income support from us and compensation from ACC, we are unable to make any change in practice despite the tribunal’s finding ... The Minister has been advised of the situation and tabled a report in the House on this issue on 20 December 2018. MSD will provide further advice to the Minister as required.”

Further advice, oh please! But surely not from the MSD, which has argued in many of the cases discussed here for all the archaic features of social security appeals as if they were ordained and set in stone. Clear and immediate decisions with adequate recompense are required forthwith.