Identify and explain the general importance of discretion within New Zealand’s social security law

Identify the purpose and effect of s60GAE and s60GAF

 

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Facts

Rachael has recently divorced from her husband Peter. The former couple have one child, Melli. The couple had lived together in Dunedin for six years, with both parents working part-time, and sharing care of Melli between them. After various tensions arose between the two of them, Rachael and Peter separated for a time; approximately 12 month. During that time Rachael left her job and applied for, and received, Sole Parent Support.Eventually the couple reconciled. Rachael returned to full time employment. Another couple of years went by, and Rachael and Peter had another baby. Unfortunately, tensions flared again and the couple separated for a second time.

Melli resided with Rachael, as Peter went to Auckland to find work, providing no financial assistance to Rachael. Rachael left her former employment as anICT researcher to look after Melli on a full-time basis. She quickly depleted the savings she had accumulated during her employment. She had no other means of financial support for her and Melli, with Peter being unable to find work in Auckland, being himself in receipt of a Jobseeker Support. Rachael then applied for Sole Parent Support again, to enable her to have sufficient financial assistance to meet her caring obligations and living expenses.  After making an on-line application she was asked to attend a further interview with a case-worker at the W&I. During the course of the interview the case-worker asked for details about the new baby who was now 9 months old. She stated, after some consideration, ‘I don’t think this will be one of those cases where I will refrain from exercising my discretion; your child will be treated like every other additional dependent child.”

Confident that she met all eligibility requirements for Sole Parent Support, Lee was surprised when she received notification that her application had been granted but that she was going to be worktested as soon as the new baby turned 12 months old. Rachael comes to you for advice at Community Law, Wellington and Hutt Valley (CLWHV) as to whether there may be any arguments that could be found to assist her in her appeal before the Social Security Appeal Authority. You consider, in consultation with your senior solicitor, that an argument can be formulated that could assist Rachael. Your senior solicitor at CLWHV asks you to provide her with a memorandum answering the questions below.

 

Questions

1.Identify and explain the general importance of discretion within New Zealand’s social security law.

 

2.Identify the purpose and effect of s60GAE and s60GAF

 

3.Explain the nature of the discretion available to the Chief Executive in s60GAE and s60GAF.

 

4.Discuss how limits have been placed upon the CE’s discretion by way of the legislation and the instructions in the Manuals and Procedures

 

5.Identify the relevant social norms that you consider to support the law and its policy.

 

6.Conclude whether, in your opinion, the CE has appropriately refused to exercise his discretion under s60GAF in this case. Provide a summary of the reasons for your conclusion

 

7.4bonus marks will also be available for your writing style, structure and Style-Guide compliance

 

 

Relevant Legislation& Policy

S 1A Purpose

The purpose of this Act is—

(a) to enable the provision of financial and other support as appropriate—

(i) to help people to support themselves and their dependants while not in paid employment; and

(ii) to help people to find or retain paid employment; and

(iii) to help people for whom work may not currently be appropriate because of sickness, injury, disability, or caring responsibilities, to support themselves and their dependants:

 

(b) to enable in certain circumstances the provision of financial support to people to help alleviate hardship:

 

(c) to ensure that the financial support referred to in paragraphs (a) and (b) is provided to people taking into account

(i) that where appropriate they should use the resources available to them before seeking financial support under this Act; and

(ii) any financial support that they are eligible for or already receive, otherwise than under this Act, from publicly funded sources:

(ca) to provide services to encourage and help young persons to move to education, training, and employment rather than to receiving financial support under this Act;

 

(d) to impose, on the following specified people or young persons, the following specified requirements or obligations:

(i) on people seeking or receiving financial support under this Act, administrative and, where appropriate, work-related requirements; and

(ii) on young persons who are seeking or receiving financial support under this Act, educational, budget management, and (where appropriate) parenting requirements; and

(iii) on people receiving certain financial support under this Act, social obligations relating to the education and primary health care of their dependent children

 

S3

[…]

dependent child, in relation to any person,—

(a) means a child—

(i) whose care is primarily the responsibility of the person; and

(ii) who is being maintained as a member of that person’s family; and

(iii) who is financially dependent on that person:

 

(b) does not include a child in respect of whom payments are being made under section 363 of the Children, Young Persons, and Their Families Act 1989:

 

(c) despite paragraph (b), includes a child or a young person (as defined in section 2(1) of the Children, Young Persons, and Their Families Act 1989)—

(i) of whom the person is a parent within the meaning of that Act; and

(ii) to whom section 361 of that Act applies; and

(iii) who, under section 362 of that Act, is placed in the charge of the person:

 

(d) for the purposes only of Schedules 3, [[3A,]]6, 9, 16, 17, [[18, and 26]] of this Act, does not include a child in respect of whom an orphan’s benefit or an unsupported child’s benefit is being paid

 

(e) does not include a child in respect of whom a young parent payment is being paid except in relation to that child’s parent or step-parent.

 

Principal caregiver, in relation to a dependent child, means the person who, in the opinion of the chief executive, has the primary responsibility for the day-to-day care of the child, other than on a temporary basis […]

 

60GAD

Purpose of sections 60GAE and 60GAF

The purpose of sections 60GAE and 60GAF is to improve the financial and social outcomes for families that include people to whom those sections apply by providing earlier access to employment services and expectations, while recognising the care and development needs of children.]

 

60GAE       Beneficiaries having additional dependent child: general

1)This section applies to a person (the beneficiary parent) who (whether or not by having given birth) becomes a caregiver, or the principal caregiver, of a dependent child (an additional dependent child) while the person-

a) is receiving sole parent support, a supported living payment, jobseeker support, or an emergency benefit (whether in his or her own right, or as the spouse or partner of the person granted the benefit); and

 

b)is already a caregiver, or the principal caregiver, of a dependent child or children.

[…]

 

2)An additional dependent child aged 1 or over must not be included in the determination for the purposes of the definitions of part-time work-tested beneficiarywork-tested sole parent support beneficiary, andwork-tested spouse or partner in section 3(1) and section 60Q(1) or for the purposes of section 20D(1)(c) (which relates to eligibility for sole parent support), of-

a)the age of the youngest dependent child of the beneficiary parent concerned; and

b)whether the beneficiary parent concerned has a dependent child or children under 5 or 14 (and if so, how many).

 

3)Subsection (2) may apply to 2 or more additional dependent children of the same beneficiary parent.

[…]

 

4)The chief executive may apply this section in relation to any dependent child or children of whom a person who already has any dependent child or children becomes a caregiver, or the principal caregiver, if satisfied that-

a)the person’s situation is analogous to that of a person to whom subsection (1) applies; or

b)to do so would best achieve the purpose stated in section 60GAD

 

5)An example of a situation that is analogous to that of a person to whom section 60GAE(1) applies is that of a woman who gives birth during a period when she has temporarily ceased receiving a benefit (whether in her own right, or as the spouse or partner of the person granted the benefit).

 

6)Subsection (5) does not limit the generality of subsection (4).

 

[60GAF Chief executive may refrain from applying section 60GAE

The chief executive may refrain (for any period he or she thinks fit) from applying section 60GAE in relation to any additional dependent child or children (within the meaning of that section) if satisfied in any particular case that—

(a)to do so would best achieve the purpose stated in section 60GAD; or

(b)there are circumstances beyond the control of the beneficiary parent concerned making it inappropriate or unreasonable to apply that section.]

 

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