Source: Child Poverty Action Group (CPAG)
Through eight hard years, a sole mother pleaded her case against the Ministry of Social Development (MSD) who argued before the High Court that because she took out loans in the form bank loans, credit cards and family loans to pay for needed home repairs and to support herself and her children, she should have to repay more than $120,000 of her benefit. She explained that she needed to borrow because she could not pay her bills while living on the benefit. The loaned money had all been repaid in the years since it was borrowed, but it was called ‘overpayments’ by MSD. In a breakthrough decision yesterday, the High Court determined that loans could not be counted as income for social security purposes – a huge victory for Ms F. But the years and the overwhelming stress she experienced cannot be taken back. These are her words:
I take great heart in knowing that this decision upholds the rights and dignity of low income people in New Zealand; for all the solo mums out there doing their best to care for their children and themselves, to those receiving disability or sickness support, to the families struggling to make ends meet receiving working for families, to all the people like us – you and me – who face the daily battle of justifying their very existence to Work and Income (WINZ), who have to manage with disparate abatements and bare the weight, or fear of, unjust and often unfounded claims of overpayment by WINZ and MSD – this ones for you.
Needing government assistance shouldn’t undermine the right of New Zealanders to be treated like their fellow citizens. It is fundamentally discriminatory practice to try to implement and/or uphold existing policies that mandate one rule for beneficiary citizens and one rule for non-beneficiary citizens – this is unacceptable and authorities need to be held to account. This appeal highlights the prejudicial nature of MSD’s intentions; at it’s core, the very body governing our most vulnerable citizens, fought to usurp the fundamental rights of those in their care. That the MSD sought to uphold such unjust behaviour (despite being told over 20 years ago this behaviour was illegal) is testament to the dire need not only to overhaul the Social Security Act but underpin MSD practice and policy with regulatory oversight that champions the democratic rights of those eligible for government assistance.
The High Court was my first opportunity to have an impartial judge and fair hearing; my first experience of being treated fairly and it took over 8 years to find justice. This appeal and the journey here reveals the innate injustice beneficiaries face when trying to access transparent and impartial dispute resolution. Disparate and unclear policy and practice underpins decision making processes that adversely affect the lives of beneficiaries and their families. Decisions made and implemented by WINZ and MSD staff are determined within a framework of biased beliefs and processes bereft of appropriate oversight, which are then reaffirmed in Benefit Review Committees (BRC) and under the Social Security Appeal Authority (SSAA).
Intrinsically held negative beliefs about beneficiaries are reinforced through systems and structures operating outside of law that safeguards the rights of non-beneficiary citizens. Policy, opinion and decisions are reified through an unchecked process of confirmation bias literally silencing evidence or information counter to the bias narrative.
It has taken hundreds if not thousands of hours, eight and a half years of mine and my families life, grave impact our mental and physical health and wellbeing not to mention substantial debt and financial loss to get here today. I made a choice to follow this through not just because it seemed unfathomable to me that WINZ could say I earned income where I earned none at all; I chose to do this because of the thousands of people who do not have the time, energy, will, resources, education, or self determination to even begin to question decisions made by MSD; determinations that lock them into cycles of debt and deprivation; decisions that go unchecked both in their veracity but also in their impact. As it was it took me three and a half years just to gain clarity from WINZ how they determined my so called ‘income’ and eight years to finally have a judge willing and open to listen to both sides of the story.
MSD refused to represent my financial statements accurately, even though they are legally charged to do so, meaning I had to act as my own accountant, creating a balanced comprehensive income style statement of five years worth of bank transactions that were made over a decade ago. Any evidence I provided was used against me or dismissed entirely. The SSAA decision made a mockery of my life experiences and the truth shared within three SSAA hearings held over a year and a half of my life. This experience broke me on so many levels. I’ve learned so much along the way and at each step I have held the hands of my sisters and brothers for strength and in solidarity. Although I know the road is not over for me yet I feel so blessed to have experienced both sides of the law – one that is based upon democratic principles of justice; accountability, just and transparent laws, fairness and accessible and impartial dispute resolution – and one that is heavy set with prejudice and without oversight for those charged with responsibility for the most vulnerable in our society. Witnessing this duality first hand has given me hope – hope that we can and will change the complex systems of injustice embedded within the institutional structures governing our social services AND honour with dignity the lived experiences and lives of all New Zealanders.
At first glance it can be hard to measure the true strength of this decision. However I know how significant it is for me and all Kiwis.
In this appeal MSD fought to treat all monies spent by beneficiaries as income for the purposes of benefit entitlement. To make that clear – if I spend $100 over my benefit MSD wanted to call this money income irrespective of where this money was sourced. We know that the source of monies is of paramount importance when determining income for tax purposes. Thats because I may spend $100 but this may come from any myriad of sources such as a credit card, overdraft, bank loan, familial loan, gift payment, insurance payment, or income. This decision makes it illegal for MSD to claim that loaned money from all sources – monies with a genuine obligation to be repaid – is income for the purposes of benefit entitlement. Therefore all abatements to benefits and/or claims of overpayments based upon income determination must not include spending derived from loan sources. This decision impacts everyone receiving any form of government support. It’s huge. It also necessitates a commission of inquiry into the past 20 year of overpayment determinations.
In 1997 MSD were directed not to include loans as income for the purposes of benefit entitlement. In my case, they not only made claims of overpayment based entirely on monies spent from loans (‘deciding’ to recoup five years worth of benefit afforded to me and my children), they sought to affirm this unjust practice in the High Court. There is no way of knowing how many hundreds if not tens of thousands of people have been affected by illegally determined claims of overpayment based on using expenditure as a measure for income determination without accounting for borrowing of loans.
We must seek justice and transparency for all through a commission of inquiry into claims of overpayment by MSD.