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Lone Parents and Social Security(1) |
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Lone Parents and Social Security
John Hughes [FNa1]
Victoria University of Wellington Law Review May, 2005
Copyright © 2005 by Victoria University of Wellington Law Review; John Hughes
The domestic purposes benefit for lone parents has been politically charged since its inception. This article examines the developing case law relating to the benefit, with particular reference to the interrelationship between the relevant social security principles and wider issues of family policy.
I INTRODUCTION
The domestic purposes benefit (the DPB) is perhaps the most controversial of all systems of state income support. The origins of the benefit, claims about its alleged effect on behaviour within and outside relationships, and its place within two cultural traditions, have been examined in detail elsewhere. [FN1] So, also, has its role within the overall structure of social security in terms of issues such as work-testing. [FN2] The aim of this article is to examine the statutory framework and case law surrounding the current conditions of entitlement to the DPB. To the extent that an understanding of that case law depends in part on the history of the benefit, a brief outline of the relevant history is provided by way of background.
II BACKGROUND
By the mid 1960s, the Director-General of what was then the Department of Social Welfare (the DSW) had the discretion to grant an emergency benefit under section 61 of the Social Security Act 1964 (the 1964 Act) on grounds of hardship and personal circumstances. This discretion *2 remains available to the chief executive (the chief executive) of the Ministry of Social Development (the MSD). [FN3] By 1968 the number of parents bringing up children by themselves had increased. This increase was due, in part, to the increasing incidence of divorce and separation and enhanced statutory recognition of de facto breakdown of legal marriages and, [FN4] in part, to an increasing tendency amongst single pregnant women to give birth outside marriage. [FN5] In 1968 the DSW decided to place in one group emergency benefits which were payable to women who qualified for emergency benefit under section 61 and who were not being supported by their partners. Internally, the DSW referred to these "grouped" benefits as domestic purposes benefits. In order to qualify for the "administrative" domestic purposes benefit, as a category of emergency benefit, the person concerned had to have taken maintenance proceedings against her partner or against the father of her child(ren). [FN6]
In 1972 the Royal Commission of Inquiry into Social Security (the McCarthy Commission) [FN7] recommended that one statutory benefit should embrace all "solo" parents, [FN8] replacing the diverse provisions which then existed in respect of those who fell into three categories. These were, first, the various categories of solo parent; second, women caring at home for a sick or infirm person; and, third, women whose previous domestic commitments had affected (or were deemed to have affected) their ability to obtain employment. Whilst the Commission focussed on solo parents, the position of the second and third groups was considered to be closely analogous. The McCarthy Commission noted that solo parents and their families faced a higher risk of poverty. Its recommendations were explicitly based on the assumption that most married women were financially dependent and that male economic support of the family was still the norm. [FN9]
The Commission had intended assimilating widows with dependent children along with other categories of solo parents but this was not carried through into the legislation. The widows' benefit remained intact and more generous than the new statutory domestic purposes benefit. The reasons *3 for this are obscure, but the Royal Commission on Social Policy suggested that the retention of a separate widows' benefit appeared to reflect a value judgment that solo parenthood arising from death of a partner gave rise to a stronger claim than solo parenthood which was "social or partly voluntary" (the underlying assumption being that only the former arose from circumstances beyond the control of the parent). [FN10]
III THE INTRODUCTION OF A STATUTORY DOMESTIC PURPOSES BENEFIT
The statutory domestic purposes benefit (the DPB) was implemented by the Social Security Amendment Act 1973. As had been the case with the emergency benefit, in order to qualify for the new benefit as a solo parent, applicants were required (where appropriate) to have finalised satisfactory maintenance arrangements for themselves and for their children. [FN11] Where an applicant was unable to meet the requirements of the legislation, and was therefore not entitled to receive the statutory benefit, payment continued to be made by way of an emergency benefit at a lower rate. [FN12]
The number of applications for the new benefit exceeded the Government's expectations by a considerable margin, leading to the establishing of a Domestic Purposes Benefit Committee of Review. [FN13] The Review Committee recommended that the benefit should be paid at a reduced rate for up to six months, initially, and that any benefit payment should be of an interim nature with its sole purpose being to avoid hardship, especially for the children. [FN14] This reasoning was underpinned by the perception that the availability of financial support outside marriage was contributing to the termination of relationships which might otherwise have continued. A *4 secondary theme was that the DPB also provided an incentive for single women to keep their children rather than having them adopted. [FN15]
Although it was argued cogently at the time that the Review Committee had relied on defective statistical interpretation in its analysis, [FN16] the Government adopted this recommendation and the resulting interim benefit was called emergency maintenance allowance. Payment was made in terms of the emergency provisions contained in section 61 at a rate $16 a week less than the appropriate maximum rate of domestic purposes benefit. This remained the case until December 1985, when the rate of the emergency maintenance allowance was altered to a rate equivalent to that of the statutory DPB. The DSW, in reporting to the Royal Commission on Social Policy in 1988, later concluded -- in contrast to the assumptions underlying the Review Committee's report -- that there was no sound research-based evidence one way or the other about the effect of the DPB on incentives to separate. [FN17]
Finally, the balance between childcare responsibilities and work had lain at the root of the McCarthy Commission's recommendation that a statutory domestic purposes benefit be created. The benefit was designed to ameliorate need where a solo parent was left "to provide singlehandedly both financial and parental support for dependent children". [FN18] Sole responsibilities for support were seen to limit the opportunity to earn an adequate income. The Royal Commission examined paid work in this context in terms of the beneficiary's freedom to work, where possible, and the consequent abatement effect of earnings. [FN19] When the issue was next examined officially, by the 1987 Benefit Task Force, whilst the effect of earned income on benefit rates was again a focus, the Task Force favoured positive promotion of work and some neutralisation of assistance over work-tested limitations on access to social security. A range of "self-help" initiatives aimed at encouraging entry to the full-time paid labour force were canvassed, most notably good quality child care. [FN20] A year later, the Royal Commission on Social Policy noted simply that the Department of Social Welfare's 1987 Briefing Papers restated that the aim of the domestic purposes benefit was "to provide income support for people whose domestic responsibilities preclude them from full time paid employment and who are otherwise unsupported". [FN21]
*5 This approach was radically revised in 1991, as one part of the sweeping restrictions on access to social security introduced under the policy document Social Assistance: Welfare that Works. [FN22] The National Government of the day proposed regrouping the existing six categorical benefits into three groups -- unemployed, health related, and solo parents. [FN23] It was then proposed that these groups would be streamed into "fully work ready", "work ready -- part time" and "fully work exempt". Only DPB recipients with young children needing substantial home care were anticipated as falling into the third category. No substantive change was proposed to the basic structure of the DPB. The ensuing changes were, rather, a reduction in the rate of benefit payable, in common with other benefits, [FN24] and a rise in the minimum age of entitlement from 16 to 18. [FN25]
There was, however, a new focus on work-testing, [FN26] which was part of a wider campaign on the issue of "welfare dependency". [FN27] By 1996, the departmental focus on recipients of the DPB had shifted from promotion of work, where possible, to concern that New Zealand had "a high and increasing proportion of families headed by a sole parent and a low proportion of sole parents employed either part- or full-time". [FN28] As from 1 April 1997, the "reciprocal obligations" of the recipients of the DPB were extended. [FN29] An applicant for a domestic purposes benefit had to be willing to undertake part-time work and must have taken reasonable steps to obtain part-time work where the youngest dependent child was aged 14 years or older. If the youngest child was between *6 the ages of 6 and 14, the applicant had to be willing to undertake (and must have taken reasonable steps to obtain) part-time work. It was a condition of receiving a DPB that the applicant complied with a request to attend mandatory interviews, [FN30] and -- if she or he was a work-tested beneficiary -- that the applicant complied with the work test. [FN31] These provisions did not apply if the applicant was granted an exemption from the work test. [FN32] Exemption could be granted where the person concerned was the principal caregiver of a dependent child with special needs, whose welfare would be unduly harmed if the person attended employment and training and for whom satisfactory alternative care arrangements were not available or are unable to be made by the person. [FN33] An exemption could also be granted, amongst other things, where the beneficiary had started to live apart from her or his spouse within the previous six months (a provision designed to allow time to recover from the trauma of the circumstances surrounding separation). [FN34]
The work test was then abolished in 2001, [FN35] in favour of facilitation into employment through case management. The new provisions -- and their policy origins -- are outlined later, as one aspect of examining current entitlement to the DPB.
IV SOLO PARENTS
Under section 27B(1) of the Social Security Act 1964, the following applicants can qualify for the DPB as solo parents, subject to certain conditions:
(a) A woman who is the mother of one or more dependent children and who is living apart from, and has lost the support of, or is being inadequately maintained by, her husband:
(b) An unmarried woman who is the mother of one or more dependent children:
(c) A woman whose marriage has been dissolved by divorce and who is the mother of one or more dependent children:
...
*7 (e) A woman who is the mother of one or more dependent children and who has lost the regular support of her husband because he is subject to a sentence of imprisonment and is-
(i) serving the sentence in a penal institution; or
(ii) subject to release conditions or detention conditions (as those terms are defined in section 4(1) of the Parole Act 2002) that prevent him undertaking employment:
(f) A man who is the father of one or more dependent children whose mother is dead or who for any other reason are not being cared for by their mother.
A solo parent within one of these categories is eligible for a domestic purposes benefit so long as they can meet three further general qualifications in section 27B(2). [FN36] Under subsection (2), first, the applicant must either be (or have been) legally married or be at least 18 years old. Second, the applicant must be caring for a dependent child or children. Third, the applicant must not be living together with her husband, his wife, or with the other parent of the child, as the case may be, whether in a legal or a "de facto" marriage.
With one exception, the general qualifications under subsection (2) will be examined before turning to the various categories of solo parent. [FN37]
V MINIMUM AGE QUALIFICATION
Under the MSD's operational policy, [FN38] no social security benefit is payable to pregnant women or solo parents under the age of 16. [FN39] The woman's parents are expected to provide full support. *8 Essentially, under the policy, there is no intervention unless there is a perceived "care and protection" issue. The parents of the young woman might qualify for supplementary benefits, such as the special benefit, however, in relation to additional living costs. [FN40]
Until 1991 the minimum age of entitlement for a DPB was 16. The age of eligibility was raised to 18 in 1991 after political criticism of the accessibility of the DPB to young women. [FN41] Between the ages of 16 and 18, an unmarried pregnant woman may be entitled to a sickness benefit on grounds of hardship. [FN42] Once the child has been born, a woman in this age group will qualify for a DPB if she has been legally married. If not, an emergency benefit may be granted on grounds of hardship under section 61 of the 1964 Act to an applicant who is aged 16 or 17 years, who is living at home and who is either pregnant or a solo parent, where her parents are unable to support her. [FN43]
*9 Operational policy where the applicant is aged 16 or 17 years and is living away from home, requires that it be "unreasonable to expect the client to live at home or be supported by [her] parents" before an emergency benefit is granted. [FN44] The existing policy includes, as examples, cases where the parents' home is too small and overcrowded to accommodate the woman and her baby, or where it is "better for the client's physical, mental or emotional health or well-being to live away from home". [FN45]
VI CARING FOR ONE OR MORE DEPENDENT CHILDREN
The combination of subsections (1) and (2) of section 27B is that the applicant for DPB must have one or more "dependent" children for whom she or he is caring. [FN46] "Dependency" is then defined in section 3 of the 1964 Act in terms of a child who meets four cumulative criteria. First, the child must be one whose care is primarily the responsibility of that person. Second, the child must be being maintained as a member of that person's family. Third, the child must be financially dependent on that person. [FN47] Fourth, the child must not be a child in respect of whom payments are being made by virtue of residence in foster homes or iwi care. [FN48]
The 1964 Act does not define the phrase "caring for the child". As a rule of thumb, if the applicant and the child were living together, under operational policy guidelines the MSD assumes that the applicant was caring for the child. Where the child was not living with the applicant, a *10 major factor is how permanent or temporary the arrangement is, and what has precipitated the child being cared for by someone else. [FN49]
The cumulative nature of the criteria is illustrated by the finding in SSAA Decision No 152/02, [FN50] in which the Social Security Appeal Authority (the Appeal Authority) concluded that "[for] a child to be a dependent child, it is clear that a child must not only be financially maintained by her parent but the parent must be the child's primary caregiver". In that case, where the child's grandmother (with whom the appellant had lived) was held to be the person who had primary responsibility for day-to-day care, and to whom the child was bonded and turned for her needs, there was held to be no qualifying dependency on the appellant during the period in question. Similarly, the definition of "dependent child" has been held to exclude, as relevant caregivers, those whose effective day-to-day contact is governed by access orders, as opposed to custody orders, in relation to their children. [FN51] Against this, given the cumulative criteria, the decision that dependency exists is not determined simply by reference to the fact that one parent has legal custody, where the other parent in fact has the primary responsibility for day to day care. [FN52]
Where the child being claimed for is not the natural or adoptive child of the applicant, the chief executive has the discretion under section 27A(3) of the 1964 Act to regard the child as the applicant's child and the applicant as being the mother or father of that child. The condition is that the child is being maintained by the applicant and was at any time maintained by the husband or wife of the applicant. [FN53] The child will then qualify the caregiver as an applicant for the DPB in terms of section 27B. The most common example arises where a couple have assumed responsibility for the care of a relative's child at birth and have maintained the child for some time prior to separating. In SSAA Decision No 132/2000, [FN54] the child in question was placed with the appellant and her husband by the Department of Child Youth and Family Services (CYFS) and she received board payments from that Department. When the couple separated, the appellant was denied a domestic purposes benefit on the basis that she was not "maintaining" the child because financial maintenance came from CYFS in the form of board payments. On this point, the Appeal *11 Authority held that the "maintenance" envisaged by section 3 of the 1964 Act entails feeding, clothing and sheltering the child and providing "all of the other kinds of nourishment (emotional and physical) that young children require". The financial assistance from CYFS alone was held not to provide maintenance in this sense. The Department was held to have elected to interpret its financial obligations to her in an unduly narrow and restrictive way, particularly since CYFS had encouraged the appellant to apply for custody and guardianship.
Under section 80BD(6) of the 1964 Act, where a person receiving a DPB or widow's benefit stops caring for a dependent child "because of a sudden change of circumstances which was beyond the beneficiary's control", the benefit ends eight weeks later. The extended period is to allow the beneficiary to adjust to a lower rate of benefit after the DPB is cancelled. [FN55] In SSAA Decision No 044/02, [FN56] the reference to a sudden change of circumstances was held clearly to cover the case of a non-custodial parent failing to return a child after a holiday access period (rejecting what might seem an extraordinary argument by the chief executive that the effective "continuing care" by the non-custodial parent after the holiday, but in breach of agreement, could not be described as being "sudden"). [FN57]
VII THE CATEGORIES OF ELIGIBLE SOLO PARENTS
We can turn now to the separate categories of solo parents in section 27B(1) of the 1964 Act. These categories, as currently enacted, have remained essentially undisturbed since 1973 and heavily reflect the thinking of the McCarthy Commission. As at November 2004, however, proposals for "neutral" laws governing relationships (whether married, de facto, or same sex) have led to the introduction of the Relationships (Statutory References) Bill 2004 as an accompanying measure to the Civil Union Act 2004. Both measures -- and particularly the decision to recognise same sex civil unions -- have proved to be highly controversial. The former, if enacted in its introductory form, will affect some aspects of categorisation under section 27B, in ways that will be outlined briefly following discussion of the current law.
A Unmarried Women
Under paragraph (b) of section 27B(1), an applicant can qualify if she is an unmarried woman who is the mother of one or more dependent children. Whilst section 27(1) lists separately under paragraph (c) a mother of one or more dependent children whose marriage has been dissolved by divorce, such a woman is, of course, also "unmarried" and the separate categorisation appears to be *12 an historical anomaly. [FN58] For social security purposes, the treatment of women falling within either category is effectively identical.
In order to qualify for the DPB under any of the categories of solo parenthood, nevertheless, under section 27B(2) the applicant must not be "living together" with a husband, wife, or the other parent of the dependent child. [FN59] In a legal marriage, for social security purposes, "living together" is simply the opposite of "living apart", the latter being one criterion of entitlement under section 27B(1). [FN60] The concept of "living together" with a husband or wife is not restricted to legal marriage, however. "Husband" for the purposes of section 27B includes a man with whom a woman has entered into a "relationship in the nature of marriage" although not legally married to him and "wife" has a corresponding meaning. [FN61] The Appeal Authority has held that a finding that parents of a dependent child are "living together" under section 27B(2), so as to disqualify an applicant from entitlement, does not necessarily depend on a concurrent finding that they are living in a relationship in the nature of marriage with one another. [FN62] Most cases, however, turn on an allegation that such a relationship exists, and the relevant legal test for establishing the relationship then becomes crucial.
In Ruka v Department of Social Welfare (Ruka), [FN63] the Court of Appeal held that no relationship in the nature of marriage exists in the absence of financial interdependence and mutual emotional commitment. [FN64] In the key passage of the joint judgment of Richardson P and Blanchard J, with which Thomas J concurred, [FN65] the Judges stated that: [FN66]
*13 In our view a relationship in the nature of marriage for the purpose of the Social Security Act is one in which an essential element is that there is an acceptance by one partner that (to take the stereotypical role) he will support the other partner and any child or children of the relationship if she has no income of her own or to the extent that it is or becomes inadequate. The commitment must go beyond mere sharing of living expenses, as platonic flatmates or siblings living together may do; it must amount to a willingness to support, if the need exists. There must be at least that degree of financial engagement or understanding between the couple. ...
Where financial support is available nevertheless there will not be a relationship in the nature of marriage for this purpose unless that support is accompanied by sufficient features evidencing a continuing emotional commitment not arising just from a blood relationship. Of these, the sharing of the same roof and of a sexual relationship (especially if it produces offspring) are likely to be the most significant indicators.
The expression "relationship in the nature of marriage" necessarily requires a comparison with a legal marriage but that is not a straightforward exercise. [FN67] ... The comparison must seek to identify whether there exist in the relationship of two unmarried persons those key positive features which are to be found in most legal marriages which have not broken down (cohabitation and a degree of companionship demonstrating an emotional commitment). Where these are found together with financial interdependence there will be such a merging of lives as equates for the purposes of the legislation to a legal marriage.
Although it was not necessary for the decision, the majority stated obiter that the presence of extreme violence over the relevant period -- as had occurred in the case before them -- could affect the question whether the parties were living in a relationship in the nature of marriage.
In its subsequent decision, R v Batt, [FN68] the Court held that "obviously a willingness to provide support is a state of mind to be inferred from the relationship overall" and as "an inference drawn from the inter-dependence of the relationship itself". In Ray v Department of Social Welfare, [FN69] payment of "board" representing most of the alleged partner's benefit to the appellant, with whom he was living in an "emotionally committed" relationship, was held to be evidence of financial interdependence. Whilst there have been a number of Appeal Authority decisions concerning the *14 issue since Ruka, all turn on their individual facts and none advance the underlying analysis beyond that set out in the original judgment.
The decision in Ruka was concerned with whether the appellant had "entered into" a relationship in the nature of marriage. Whether the concept of "living together" in such a relationship under subsection 2(c) of section 27B(1) adds anything to the statutory disqualification, once the relationship itself has been entered into, remains open to argument. In Director-General of Social Welfare v W, [FN70] for example, McGechan J suggested obiter that the reference to a married couple "living apart" in paragraph (a) of subsection (1) might require "spatial separation". It might be argued that since "living together" is the opposite of "living apart", a concept in which such physical separation has generally been seen to be a necessary component, [FN71] then "living together" necessarily connotes an absence of physical separation and particularly separate living accommodation. In essence, "living together" might be seen to require the alleged couple to have gone one stage further than "entering into" the relationship so as to share accommodation. [FN72] This would be consistent with the approach to statutory interpretation that avoids, where possible, the imputation that Parliament has used redundant words. [FN73] It would also be consistent, arguably, with the rationale for the more beneficial rate of the DPB, as compared with other benefits available to single people, the DPB being designed in part to meet the additional costs of setting up and maintaining a home. [FN74] On the other hand, it could be argued from the statutory history that the words "living together", taken alone, do not connote the sharing of one household, in the sense of living together under one roof. The concept of a relationship in the nature of marriage replaced an earlier statutory concept of "living together on a domestic basis as husband and wife" specifically to exclude this possibility, the emphasis at that stage being on the removal of the phrase "on a domestic basis" rather than the words "living together". [FN75] Further, it might be argued that the *15 conventional legal test for "living together" may now be less demanding, [FN76] in any event, than the Ruka test for the existence of a relationship in the nature of marriage, outlined above.
B Women "Living Apart" from their Husbands
Under paragraph (a) of section 27B(1), an applicant can qualify if she "is the mother of one or more dependent children" and is "living apart from, and has lost the support of or is being inadequately maintained by, her husband". [FN77] At this point the interplay of section 27A and section 27B is potentially confusing, reflecting a series of ad hoc drafting amendments since 1973, coupled with shifting case law perceptions of what constitutes a "de facto" marriage.
The confusion arises because a woman with a husband under section 27B(1)(a) is juxtaposed in the drafting with an "unmarried woman" under section 27B(1)(b), whilst -- as we have seen -- "husband" is now defined to include a man with whom a woman has entered into a relationship in the nature of marriage. It seems arguable, notwithstanding the extended definition of "husband", and the approach in some decisions of the Social Security Appeal Authority, [FN78] that the original intention of the drafter was to restrict the criteria of "living apart" and "loss of support" in para (a) to cases where the only putative disqualifying relationship is with a man to whom the woman is legally married. First, paragraph (a) refers both to "living apart" and to "inadequate maintenance", each being a concept that is associated with legal marriage. [FN79] Second, as we have just seen, case law developments around the definition of a relationship in the nature of marriage rule out such a relationship where the parties are not financially interdependent (for example, where no support is forthcoming and no such obligation is accepted), thus seeming to render the extended definition of "husband" redundant in this context. Third, and arguably by strong analogy, in a comparatively late amendment to section 3 of the 1964 Act "sole parent" has been defined for other purposes to mean: [FN80]
... a person who is the principal caregiver in respect of a dependent child and who is --
*16 legally married but living apart from his or her spouse; or
not legally married --
and not living in a relationship in the nature of marriage.
For a woman who remains married, then, arguably the nature of the test to be applied will vary, depending on the identity of her purported partner. Where a woman remains legally married and otherwise entitled to a DPB under paragraph (a), by virtue of "living apart" from (and remaining unsupported by) her "legal" husband, living together in a relationship in the nature of marriage with a man to whom she is not married will then rule out entitlement under subsection (2)(c) of section 27B. Despite a number of decisions in which the test for a "relationship in the nature of marriage" has been applied to legally married couples by the Appeal Authority, [FN81] and the District Court, [FN82] it is clear that this is an inappropriate analysis. [FN83] Conversely, it is suggested that the Appeal Authority has also fallen into error in cases where it has applied the "living apart" criterion to alleged relationships in the nature of marriage. [FN84]
What, then, is meant by "living apart" under paragraph (a) of subsection (1)? The leading decision is Excell v Department of Social Welfare (Excell). [FN85] Excell was an appeal against conviction for social security fraud and the facts were unusual. The appellant had been convicted of breaching section 127 of the 1964 Act by wilfully omitting to inform the Department that she had resumed cohabitation with her husband, thereby rendering him ineligible for the DPB (which he had been receiving whilst she was imprisoned). [FN86] Fisher J held that the District Court Judge had found against the appellant on what he described as the "critical factual question" of whether the appellant and her husband lived together under the same roof and that, to this extent, the appeal was based upon misunderstanding.
In case he was wrong on this point, Fisher J went on to analyse the concept of "living apart" under section 27B. Three key principles were advanced as to what constitutes "living together". [FN87] *17 First, according to Fisher J, in order to be living together there must be some form of mental commitment to live together as husband and wife and a manifestation of that commitment by conduct (with inferences as to intention being drawn from conduct in cases of doubt). Second, the conduct is concerned with an aggregation of factors rather than with one single factor -- "[it] is the cumulative quality, quantity, continuity and duration of these factors that matters". Examples advanced in Excell included the sharing of accommodation, pooling of financial resources, the sharing of a sexual relationship, joint leisure and social activities, the sharing of parental obligations and "presentation to outsiders" as a couple. In determining this issue, Fisher J noted that the courts have applied conventional family law principles as to cohabitation in this context. [FN88] Third, it was easier to establish that a legally married couple are living together than to demonstrate that an unmarried couple are living in a relationship in the nature of marriage, given that "[a] legally married husband and wife have a duty to cohabit", so that cohabitation is seen to cease only where one party intends to repudiate "the obligations inherent in the marriage relationship" and manifest that intention by conduct. On this basis, Fisher J suggested that "[in] a legal marriage it is a very short step from physical proximity to an assumption of continued or renewed cohabitation, especially if the alleged cohabitation has not been preceded by any lengthy separation and where there are other ties such as children in common".
As with other case law under the 1964 Act, Fisher J relied on the family law principle, [FN89] that "living apart" involves the two cumulative ingredients of physical separation and a mental attitude averse to cohabitation on the part of one or both parties. Two points must then be made at the outset. First, the phrase "living apart" appears also in section 63(a) of the 1964 Act, which confers a discretion on the chief executive to regard legally married couples as "living apart" for the purpose of assessing entitlement to any social security benefit. Whilst the principles developed under section 63(a) have often simply been transplanted directly into consideration of the issue under section 27B, in Director-General of Social Welfare v W, [FN90] McGechan J noted that the weight to be attached to the phrase differed as between the two sections and that "[each] is to be *18 focused upon in its own right". [FN91] Second, there is the uncertain impact of the majority approach in Ruka, which McGechan J described as containing an "interpretative orientation towards financial needs warranted by the legislation" or a "needs-oriented construction". [FN92] It is suggested that these observations require that some considerable caution be exercised when examining the earlier case law on "living apart" under section 27B, including Excell. That case law, whilst consistent, almost invariably treated findings under the two sections as interchangeable and was not informed by the profound interpretative shift represented by Ruka. A brief survey of the case law can now be attempted.
The main area of difficulty lay, and continues to lie, in the weight attached to the "external indicators" from which inferences of emotional commitment are drawn, which -- once present -- negate the criterion of "living apart". [FN93] Under existing policy guidelines applied by the chief executive, [FN94] it can be generally accepted that the parties are living apart when they occupy separate homes and where it is clear that the marriage relationship no longer exists. On the issue of physical -- or "spatial" -- separation, the guidelines inform staff that if a couple who are legally married are clearly shown to be residing in the same place it will be difficult, though not impossible, for them to substantiate a claim that they are "living apart". [FN95] In SSAA Decision No 86/84, [FN96] the Appeal Authority did note obiter that it would not lay down a principle that whenever a husband and wife continue to occupy the matrimonial home after a dispute they cannot in some circumstances be said to be living apart, adding that "[quite] obviously there are situations where this can and does happen ...". [FN97] This possibility was further constrained, however, in SSAA *19 Decision No 73/99, [FN98] in which a differently constituted Appeal Authority required as what it described as a "threshold" that the woman be a "virtual prisoner" of the man before it would apply this exception. It is suggested, however, that this gloss on the concept of "physical separation" is both unwarranted, in terms of the case law, and unsafe.
In relation to "emotional separation" as an aspect of "living apart" under section 27B, where the parties are not living permanently at the same location, the chief executive's operational guidelines direct staff to indicators used for unmarried people in determining a relationship in the nature of marriage. [FN99] "Living apart" connotes separation due not simply to external circumstances, but to an emotional severance in the relationship. [FN100] Consistently with this, the Appeal Authority has frequently held that the appellant's claim to have "unilaterally repudiated" the obligation of marriage during the relevant period has to be tempered by "outward indicators" that the parties were not emotionally separated. [FN101] Particularly relevant to the DPB, there appears to be some element of risk in organising daily affairs closely, to deal with continuing needs of children, *20 particularly where separation is essentially amicable, even where the parties are physically separate. [FN102]
One means of establishing that one of the parties has mentally accepted that the marriage, as an emotional bond, is over, notwithstanding some external indicators to the contrary, is by pointing to a court order relating to domestic protection. In SSAA Decision No 87/84, [FN103] the Appeal Authority held that the continuing existence of a maintenance order and a non-molestation order against the appellant's husband indicated a mental attitude averse to cohabitation despite his continued visits to the appellant's house. In two cases where the parties had continued to live under the same roof in unhappy circumstances for a period of time, co-habitation was said to have ceased only when a protection order was obtained. [FN104]
It might be inferred from these decisions that the date of the court order provided a convenient point in time from which the necessary degree of emotional separation could be established, notwithstanding other -- less tangible -- evidence of the duration of domestic violence. In some decisions, however, the Appeal Authority has come close to requiring some court order as evidence of an assertion that the appellant regarded the marriage as being at an end. [FN105] Since then the chief executive has argued more bluntly, in SSAA Decision No 062/03, [FN106] that violence is simply not a relevant factor in assessing whether a married couple are "living apart". Although this argument was not expressly adopted by the Appeal Authority, the appellant was held not to have been "living apart" from her husband, notwithstanding that she had feared for her physical safety during *21 intermittent periods when they shared a household (amongst other things he had chased her with an axe, punched her, and assaulted their school age daughter).
Most of the decisions where violence has been established, but has not led to a finding of "living apart", have then led to overpayments being established against the appellant under section 86 of the 1964 Act. [FN107] The chief executive's operational guidelines accept that there may be an entitlement to an emergency benefit (paid as an emergency maintenance allowance) [FN108] where a client is experiencing violence from a partner with whom she is still living. [FN109] Inexplicably, however, none of the Appeal Authority decisions upholding overpayments in cases where violence has been established has considered the possible application of the established principle of "notional entitlement" so as to reduce the relevant debt by the amount that might have been received by way of an emergency benefit during the relevant period. [FN110]
It is to be noted that the parties must not only be living apart under paragraph (a) of section 27B(1). There must also be a loss of support. In SSAA Decision No 135/97, [FN111] the Appeal Authority emphasised the significance of financial support in determining whether there had been a "loss of support" within the meaning of the section. In SSAA Decision No 33/93, [FN112] where the parties had separated physically, but continued (amongst other things) to operate a joint bank *22 account the Appeal Authority held that "[it] may well be that the parties were living apart but their lives were still sufficiently merged to the point that neither had yet fully lost the support of the other."
It has been suggested, above, that the existing categories of entitlement to the DPB represent essentially arbitrary divisions, based upon historical factors at the time of its introduction. The existence of a separate set of principles to be used when establishing eligibility for married and unmarried women respectively is one example. There seems no reason in principle why the same test -- that developed by the Court of Appeal in Ruka -- should not be applied to both situations. "Living apart", under paragraph (a) of subsection (1) overlaps with the concept of lack of emotional commitment and "not being supported" overlaps with that of financial interdependence. Indeed, as we have seen, to some extent treating both categories in the same way would reflect operational reality. [FN113] An argument for having one test apply to both categories might also be seen to arise from the recent changes marked by the Property (Relationships) Act 2001. [FN114] There is also legislative precedent arising from the abortive attempt to introduce a universal benefit in 1990. At this time, draft legislation set out common criteria to apply whether establishing a relationship in the nature of marriage or deciding whether two legally married people were living apart. [FN115]
Finally, a decision that an applicant qualifies under paragraph (a) has obvious implications for the other parent under the child support scheme. These implications are outside the scope of this article. [FN116]
[FNa1]. John Hughes is a Senior Lecturer at Canterbury University.
[FN1]. See Kay Goodger "Maintaining Sole Parent Families in New Zealand: An Historical Review" (1998) 10 Social Policy Journal of NZ 122, which contains an exhaustive and lucid analysis of the research.
[FN2]. Kay Goodger and Peter Larose "Changing Expectations: Sole Parents and Employment in New Zealand" (1999) 12 Social Policy Journal of NZ 53; Moira Wilson "The Policy Response to the Employment Task Force and Changing Patterns of Domestic Purposes Benefit Receipt" (2000) 14 Social Policy Journal of NZ 78; Kay Goodger "Recent Trends in the Employment Rate of Sole Mothers in New Zealand" (2001) 16 Social Policy Journal of NZ 191.
[FN3]. Although decisions of this nature are invariably delegated to front line staff, technically the chief executive remains the decision-maker under the Social Security Act 1964. For this reason, subsequent references will be to the chief executive as opposed to the Ministry.
[FN4]. See generally Roderick Phillips Divorce in New Zealand: A Social History (Oxford University Press, Auckland, 1981) ch 2.
[FN5]. Goodger, above n 1, 130.
[FN6]. Goodger, above n 1, 130.
[FN7]. Report of the Royal Commission of Inquiry into Social Security in New Zealand (Government Printer, Wellington, 1972).
[FN8]. Since the statute uses the term "solo" it will be used in this article, rather than the preferred contemporary expression, in context, of a "lone" parent.
[FN9]. Report of the Royal Commission of Inquiry into Social Security in New Zealand, above n 7, 241-242.
[FN10]. Report of the Royal Commission on Social Policy (Government Printer, Wellington, 1988).
[FN11]. For the other categories of domestic purposes beneficiary under ss 27C and 27G of the 1964 Act, see John Black, Stephen Harrop and John Hughes Income Support Law and Practice (Butterworths, Wellington, 1996) paras 1027C.2 and following and 1027G.2 and following.
[FN12]. For a summary of the system then in operation, see "Report of the Domestic Purposes Benefit Review Committee" [1977] II AJHR E 28. This requirement existed until the introduction of the liable parent contribution scheme in 1981. Under the new scheme, the solo parent was required simply to identify the liable parent "in law", upon which the Director-General of the DSW took over responsibility for the relevant proceedings. This approach continues under the child support scheme, discussed below.
[FN13]. "Report of the Domestic Purposes Benefit Review Committee", above n 12. Chaired by a magistrate, Mr Jack Horn (later an Arbitration Court judge), the Committee was criticised as lacking any social science expertise or significant input from the Department of Social Welfare, see Brian Easton Pragmatism and Progress (University of Canterbury Press, Christchurch, 1981) ch 9.
[FN14]. "Report of the Domestic Purposes Benefit Review Committee", above n 12, 48-49.
[FN15]. "Report of the Domestic Purposes Benefit Review Committee", above n 12, ch 2.
[FN16]. Analysis cited in Goodger, above n 1, 136-138.
[FN17]. See generally Goodger, above n 1, 138 and following.
[FN18]. Report of the Royal Commission of Inquiry into Social Security in New Zealand, above n 7, 242.
[FN19]. Report of the Royal Commission of Inquiry into Social Security in New Zealand, above n 7, 246-250.
[FN20]. New Zealand Government Benefit Reform: the Next Steps (New Zealand Government, Wellington, 1987).
[FN21]. Report of the Royal Commission on Social Policy, above n 10, vol III, part 2, 498. For a summary of research on the issue between 1987 and 1998, see the suite of background papers released as Documents on DPB/WB Reform (Ministry of Social Development, Wellington, 2001).
[FN22]. Social Assistance: Welfare that Works (Government Printer, Wellington, 1991). For the broad context, see Jonathon Boston and Paul Dalziel (eds) The Decent Society? Essays in Response to National's Economic and Social Policies (Oxford University Press, Auckland, 1992); Brian Roper and Chris Rudd (eds) State and Economy in New Zealand (Oxford University Press, Auckland, 1993); Jonathon Boston, Paul Dalziel and Susan St John (eds) Redesigning the Welfare State in New Zealand (Oxford University Press, Auckland 1999); Jane Kelsey Rolling Back the State (Bridget Williams Books, Wellington, 1993); Jane Kelsey The New Zealand Experiment (Auckland University Press, Auckland, 1995); Margaret McClure A Civilised Community (Auckland University Press, Auckland, 1998) ch 6.
[FN23]. In addition, there was to be a "small group category" for domiciliary care of invalids and widows/women alone.
[FN24]. See Boston and Dalziel, above n 22, chs 5 and 6.
[FN25]. See Part V MINIMUM AGE QUALIFICATION.
[FN26]. See Jane Higgins "From Welfare to Workfare", in Boston, Dalziel and St John, above n 22, ch 14.
[FN27]. For the policy context, see Higgins, above n 26; M Levine, H Wyn and L Asiasiga Lone Parents and Paid Work: A Study of Employment Patterns and Barriers and Options for Change (Social Policy Agency Evaluation Unit, Wellington, 1993) and the papers collected in the symposium Beyond Dependency (1997) 8 Social Policy Journal of NZ. On the vexed concept of "dependency" generally, see the contrasting analyses in David Schmidtz and Robert E Goodin Social Welfare and Individual Responsibility (Cambridge University Press, Cambridge, 1998) ch 2.2.
[FN28]. Department of Social Welfare Post-Election Briefing Paper: Strategic Directions (Department of Social Welfare, Wellington 1996) 77.
[FN29]. The rationale for imposing the work-testing regime on lone parents is presaged in Post-Election Briefing Paper: Strategic Directions, above n 28.
[FN30]. Under what was then section 60HA of the Social Security Act 1964.
[FN31]. Social Security Act 1964, s 27(2B).
[FN32]. Social Security Act 1964, s 27 (2)(c). The exemption arose under the Social Security (Exemptions from Mandatory Interviews and Work Tests) Regulations 1996.
[FN33]. "Special needs" were defined in the Social Security (Exemptions from Mandatory Interviews and Work Tests) Regulations 1996 in terms of a physical or intellectual disability, a medical condition, a chronic or recurring illness, or a learning or behavioural difficulty.
[FN34]. Social Security (Exemptions from Mandatory Interviews and Work Tests) Regulations 1996.
[FN35]. Social Security Amendment Act 2001.
[FN36]. Subject to other provisions of the Social Security Act 1964 governing matters such as residency, and so forth. See generally Bill Atkin "Social Security Law" in International Encyclopaedia of Laws (Kluwer International, The Hague, 1996) ["Social Security Law"]; Black, Harrop and Hughes, above n 11; The Laws of New Zealand (Butterworths, Wellington, 1994) Social Security.
[FN37]. The exception is the requirement that the applicant not be living together with her husband or his wife, or with the other parent of the child, as the case may be. This is discussed substantively below in Part VII A Unmarried Women.
[FN38]. The operational policy of the MSD is contained on an intranet Manuals and Procedures system (MAP), in which benefits are divided by category but no further conventional referencing features (such as paragraph numbers) are incorporated into the text. Unless otherwise noted, the subsequent references to this operational policy are under the heading "Domestic Purposes Benefit" on MAP. The MAP references are derived from a CD-ROM containing the guidelines, which is distributed by the MSD to community organizations and updated periodically. The policy cited is that provided as being current as at 1 November 2004.
[FN39]. At first sight, this blanket rule might arguably be seen as an unlawful fetter on the statutory discretion to grant an emergency benefit. Section 61 of the Social Security Act 1964, which provides for emergency benefits, provides for eligibility in terms of any person who is by reason of age, or of physical disability, or of domestic circumstances, or for any other reason unable to earn a livelihood and who is not qualified for any other benefit (emphasis added). It is probably the case, however, that the proper use of discretion would operate against granting an emergency benefit on the basis that the age limit under section 27B(2) of the Social Security Act 1964 would then effectively be circumvented. By analogy, see SSAA Decision No 35/87 (24 April 1987) SSA 85/86 and SSAA Decision No 14/99 (2 March 1999) SSA 120/98.
[FN40]. The special benefit is paid under section 61G of the Social Security Act 1964. It is described in greater detail below. See generally "Social Security Law", above n 36; Black, Harrop and Hughes, above n 11; and The Laws of New Zealand Social Security, above n 36. From 1 April 2006, the special benefit will be replaced with a less flexible provision of temporary additional support under a substituted section 61G, see Social Security (Working for Families) Amendment Act 2004, s 10.
[FN41]. Social Security Amendment Act (No 2) 1991, s 4. For the political background, see Kelsey The New Zealand Experiment, above n 22, 280-283. Much of the criticism was based on the belief that pregnancy in the teenage years was a "lifestyle choice". See for example David G Green From Welfare State to Civil Society (Wellington, New Zealand Business Roundtable, 1996) 132: "[G]irls contemplating the possibility of pregnancy are aware that the result will be a subsidised house and an income to match earnings from employment without the trouble of working". New Zealand research suggests that a major risk factor for adolescent pregnancy is, rather, living in a seriously disadvantaged family with major discord between parents, Judith Davey "Gender Differences and Adolescent Risks" (2000) 14 Social Policy Journal of NZ 130, with other factors including subjection to physical punishment after the age of 12 and isolation from peer confidantes research by the Otago Medical School summarised in Fiona Cassie "Loneliness is Close to Motherliness" NZ Education Review (9 April 1997). See also Roy Nash "Teenage Pregnancy: Barriers to an Integrated Model for Policy Research" (2001) 17 Social Policy Journal of NZ 200.
[FN42]. Social Security Act 1964, s 54A(2).
[FN43]. Defined for general purposes in terms of the parent's income only being sufficient to qualify for the receipt of family support under the Income Tax Act 1996: Office of the Minister of Social Services Work and Income, Ministerial Direction, "Grants of Emergency Benefits" (6 October 1998) cl 6. The resulting emergency benefit is then classed administratively as an emergency maintenance allowance. The operational policy provides, however, that each case must be decided on its own facts in order to determine whether the applicant will suffer hardship unless an emergency benefit is granted (for the operational policy, see generally n 38). For some implications of this recent shift to assumed family support, see Mervyl McPherson "Extended Family Support, the State and Policy: Assumptions, Attitudes and Actualities" (1999) 12 Social Policy Journal of NZ 139.
[FN44]. See n 38.
[FN45]. This is assumed in cases of family breakdown because of violence or sexual abuse that can be confirmed by a relevant professional agency. In other cases, a family meeting is held. The operational guidelines state that no emergency benefit is to be granted if the client "lives away from home of their own choice or [there is] no serious breakdown in the family relationship". These are similar guidelines in relation to family breakdown to those established in relation to the independent youth benefit under section 60F of the 1964 Act. That benefit is specifically aimed at applicants who are 16 or 17 years of age: see "Social Security Law", above n 36; Black, Harrop and Hughes, above n 11; and The Laws of New Zealand Social Security, above n 37. The issue apparently remains to be considered in the light of research establishing that risk factors for adolescent pregnancy include family dysfunction: see n 41.
[FN46]. A "child" for this purpose is an unmarried person under the age of 18 years, other than a person who is aged 16 or 17 years and financially independent: Social Security Act 1964, s 3.
[FN47]. Financial dependence was held to exist where the child was a casual worker but feared that he might lose his employment at any time or receive an insufficient income to be financially independent. In this context the Social Security Appeal Authority looked for a pattern of working which established financial independence: SSAA Decision No 12/96 (16 February 1996) SSA 152/95.
[FN48]. This being "[a] child in respect of whom payments are being made under section 363 of the Children, Young Persons, and Their Families Act 1989 -- but, for the purposes of [Schedule 3, Schedules 6, 8, and 9, Schedule 16, and Schedules 17 and 18], does not include a child in respect of whom an orphan's benefit or an unsupported child's benefit is being paid." For the orphan's benefit and unsupported child's benefit, see "Social Security Law", above n 36; Black, Harrop and Hughes, above n 11; The Laws of New Zealand Social Security, above n 36.
[FN49]. This provision commonly covers children in special schools, psychiatric institutions, and so forth. For the guidelines, see n 38.
[FN50]. SSAA Decision No 152/02 (27 November 2002) SSA 136/02.
[FN51]. SSAA Decision No 31/93 (19 March 1993) SSA 160/92. For the relevant High Court decision, see D v VE (1988) 5 NZFLR 65, 70.
[FN52]. SSAA Decision No 138/01 (26 September 2001) SSA 201/00.
[FN53]. It should be emphasised that the conditions are cumulative - there is a requirement for current maintenance and previous maintenance by the applicant's partner.
[FN54]. SSAA Decision No 132/2000 (6 October 2000) SSA 130/00.
[FN55]. As opposed to the general cancellation provision, which becomes operative on a date no later than the pay day after entitlement ceases: Social Security Act 1964, s 80BD(1).
[FN56]. SSAA Decision No 044/02 (21 May 2002) SSA 264/2001.
[FN57]. The eight week period was held to run from the date the non-custodial parent applied to have the child included in her benefit.
[FN58]. The McCarthy Commission, had treated "divorced women" as being distinct from "unmarried mothers", based on existing classification under the deserted wives' benefit and the administrative categories of the emergency benefit: Report of the Royal Commission of Inquiry into Social Security in New Zealand, above n 7, 247.
[FN59]. This provision was inserted only in 1987, in order to deal with "recently discovered" uncertainty as to whether a solo parent could receive the DPB once remarried or living in a de facto relationship; Hon Ann Hercus, Minister of Social Welfare (18 March 1987) 479 NZPD 7849.
[FN60]. See Part VII B Women "Living Apart" from their Husbands.
[FN61]. Social Security Act 1964, s 27A(1).
[FN62]. SSAA Decision No 002/04 (16 January 2004) SSA 171/03. The result, if correct, would be to impose a lower threshold for disentitlement in cases where the applicant's husband or wife was also the parent of a relevant dependent child. In the decision itself, however, the parties lived in the same home with a degree of pooling of finances and household responsibilities, including childcare.
[FN63]. Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA).
[FN64]. The Court was considering the issue under section 63(b) of the Social Security Act 1964, which enables the chief executive to treat an unmarried couple as being married where they have entered into such a relationship. See John Hughes, "Battered Women's Syndrome and 'Interdependence' as Factors in Establishing Conjugal Status in Social Security Law" (1999) 7 Waikato LR 104.
[FN65]. Ruka v Department of Social Welfare, above n 63, 185 Thomas J.
[FN66]. Adding that, "It will not, however, be negated by a refusal to support, or an arrangement that support will not be given, which is motivated by the knowledge that the dependent partner will then be able to claim a benefit. Such a stratagem cannot create a genuine absence of support." Ruka v Department of Social Welfare, above n 63, 161-162 Richardson P and Blanchard J.
[FN67]. Adding that "[furthermore], it is not to be thought that because certain negative features (such as physical abuse, lack of emotional commitment) are found in some de jure marriages, the same factors in a relationship between a man and a woman who are not married are to be disregarded in determining whether that relationship is in the nature of a marriage". Ruka v Department of Social Welfare, above n 63, 162 Richardson P and Blanchard J.
[FN68]. R v Batt (3 August 2000) CA 47/00.
[FN69]. Ray v Department of Social Welfare (15 March 2000) HC WN AP 326/96.
[FN70]. Director-General of Social Welfare v W [1997] 2 NZLR 104 (HC).
[FN71]. See Part VII B Women "Living Apart" from their Husbands.
[FN72]. In SSAA Decision No 002/04, above n 62, living in the same home "with a degree of pooling of financial resources and household responsibilities including child care" was held to be sufficient for it to be found that the parents of a child were living together.
[FN73]. J F Burrows Statute Law in New Zealand (3 ed, LexisNexis, Wellington, 1999) 201 and following.
[FN74]. Ministerial Task Force on Income Maintenance Benefit Reform: Resource Book (Department of Social Welfare, Wellington, 1986).
[FN75]. Social Security Amendment Act (No 2) 1978. See John Hughes "Domestic Purposes Benefit: Lessons from the Furmage Case" [1979] NZLJ 32. Whilst in Ruka v Department of Social Welfare, above n 63, 169 Richardson P and Blanchard J (with whom Thomas J concurred) stated that "since the amendment to section 63 in 1978, the sharing of a household is not essential". The Court was there considering the concept of "entering into" a relationship in the nature of marriage.
[FN76]. See Part VII B Women "Living Apart" from their Husbands.
[FN77]. It has been held that, on appeal, the onus lies on the chief executive to establish that the alleged couple are not living apart: SSAA Decision No 86/2000 (10 July 2000) SSA 175/99.
[FN78]. See for example: SSAA Decision No 51/84 (25 June 1984) SSA 169/83; SSAA Decision No 86/84, (29 November 1984) SSA 4/84; and SSAA Decision No 32/87 (10 April 1986) SSA 8/86.
[FN79]. "Living apart" features as a criterion related to legal marriage in section 63(a) of the Social Security Act 1969 and a right to "maintenance" (for the adult partner) is a concept singularly associated with legal marriage. For example, in Ruka v Department of Social Welfare, above n 63, 169-170 Richardson P and Blanchard J held that "[a] simple balancing of equivalent features is not possible because for married persons financial obligations are not voluntary: the dependent spouse has some right to maintenance".
[FN80]. Inserted by section 2(1) of the Social Security Amendment Act (No 2) 1990, as part of an amendment extending coverage of the liable parent contribution scheme to sole parents receiving social security benefits other than the DPB.
[FN81]. See for example: SSAA Decision No 102/94 (31 October 1994) SSA 112/94; SSAA Decision No 99/95 (28 September 1995) SSA 171/94.
[FN82]. For example, see the District Court decisions quoted in SSAA Decision No 35/2000 (15 March 2000) SSAA 158/99; and in Excell v Department of Social Welfare [1991] NZFLR 241 (HC).
[FN83]. Excell v Department of Social Welfare, above n 82, Fisher J.
[FN84]. See, for example, SSAA Decision No 51/84 (1984) 5 NZAR 331 and SSAA Decision No 164/03 (10 October 2003) SSA 103/01, para 44.
[FN85]. Excell v Department of Social Welfare, above n 82.
[FN86]. It is unclear from the decision why the appellant, and not her husband, was prosecuted.
[FN87]. Illustrating the confused history of cohabitation issues in social security, and despite Fisher J's clear statement that his analysis in Excell v Department of Social Welfare was analytically distinct from the required approach to identifying a relationship in the nature of marriage, the Excell v Department of Social Welfare principles later came to be applied by the Department of Social Welfare in identifying such relationships, under the generic title "Judge Fisher's rules". See Frances Joychild Report to the Minister for Social Services: Review of Department of Work and Income Implementation of the Court of Appeal Decision Ruka v Department of Social Welfare [1997] 1 NZLR 154 (18 June 2001) 34-35. See the approach described in Bill Atkin, Living Together Without Marriage (Wellington, Butterworths, 1991) [Living Together without Marriage] para 4.2; Black, Harrop and Hughes, above n 11, para 1063.13.
[FN88]. These echo the earlier list advanced by Davison CJ in Edwards v Edwards (1979) 2 MPC 51 (SC) (a matrimonial property case).
[FN89]. Established in Sullivan v Sullivan [1958] NZLR 912 (CA).
[FN90]. Director-General of Social Welfare v W, above n 70; applied in R v Creeks (23 June 2004) CA 26/04 (an appeal against conviction for benefit fraud).
[FN91]. Director-General of Social Welfare v W, above n 70, 108 McGechan J.
[FN92]. Director-General of Social Welfare v W, above n 70. In the case of Director General of Social Welfare v W, which turned on the effect of an enforced separation (where the parties did not desire the marriage to end) for the purposes of the Social Security Act 1964, s 63(a), the Ruka approach to construction was held to be irrelevant.
[FN93]. Until the Court of Appeal clarified the test for identifying a "relationship in the nature of marriage" in Ruka v Department of Social Welfare, above n 63, this had been a major difficulty with the courts' approach to identifying "de facto" relationships under s 63(b) of the Social Security Act 1964. Significantly, perhaps, the difficulties in the pre-Ruka case law had themselves resulted in part from the tendency for some courts to apply an "indicator list", developed to determine whether legally married were indeed "living apart", to the different question whether unmarried people had entered into a relationship in the nature of marriage. See n 87.
[FN94]. See n 38.
[FN95]. There may be an undeveloped analogy with cases under section 39 of the Family Proceedings Act 1980, where the term "living apart" appears and the Courts have sometimes held that people living under the same roof are nevertheless living apart for the purposes of section 39. See the argument in R v Creeks, above n 90.
[FN96]. SSA Decision No 86/84 (29 November 1984) SSA 4/84.
[FN97]. In this case, however, the Appeal Authority held that the parties were not physically living apart where they still continued to occupy the same accommodation (the matrimonial home). Nor was the mental element satisfied, since neither party was held to be averse to a resumption of the relationship, although they were neither sleeping together nor speaking to each other on a regular basis. See also Social Security Appeal Authority Decision No 56/01 (16 May 2001) SSA 271/2000, a decision under section 63(a) of the Social Security Act 1964, where the parties had lived in the same premises for some time but, whilst the marriage had been a "relatively unhappy one" from an early stage, the only indicator of either party trying to remove themselves from the marriage was the appellant's decision to move to a separate bedroom. In Director-General of Social Welfare v Taru (6 May 1997) HC WN AP 334/94, where the couple effectively lived separate lives within the same house, and had followed legal advice in not notifying the Department, the High Court implicitly upheld the Appeal Authority's decision that the couple were not living apart but agreed that their reliance on advice was sufficient to preclude a requirement that the respondent repay the benefit under section 86 of the Social Security Act 1964.
[FN98]. SSAA Decision No 73/99 (30 July 1999) SSA 6/99.
[FN99]. See n 38.
[FN100]. See for example, SSAA Decision No 68/2000 (24 May 2000) SSA 215/99 (husband seafarer who spent long periods away); SSAA Decision No 152/02, above n 50 (couple lived separately for periods while wife cared for sick mother); SSAA Decision No 070/2004 (23 June 2004) SSA 115/03 (appellant and her husband physically separated whilst she obtained treatment for a mental health condition). In each case, the couple were held not to have been living apart. Contrast the finding that a couple were "living apart" in SSAA Decision No 011/04 (20 February 2004) SSA 110/03, in which the appellant suffered from schizophrenia and her husband had been physically separated from her (and living overseas) for 10 months, having lived separately - but under the same roof - for some years before that.
[FN101]. See, for example, SSAA Decision No 68/2000, above n 100 (where the appellant had actively supported her husband's application for permanent residence); SSAA Decision No 35/2000, above n 82 (where children had been born to the couple during the period of alleged estrangement); SSAA Decision No 86/2000, above n 79; SSAA Decision No 059/03 (21 May 2003) SSA 137/02. On unusual facts in SSAA Decision No 19/98 (April 1997) SSA 138/97, the Appeal Authority even held that an alleged "sham" marriage, involving a legal ceremony, following which the parties lived together for a period, debarred the appellant from the DPB for the period in question. Contrast SSAA Decision No 048/04 (April 2004) SSA 020/03, where a sham marriage was entered into in order to support an immigration application for the husband and the couple were not physically living together at the relevant time.
[FN102]. See for example, SSAA Decision No 059/03, above n 101. All such decisions, however, involve an amalgam of factual considerations, of which this is only one. Given the recognised needs of children for contact subsequent to parental separation (see the research cited at n 173) it seems strongly arguable that corresponding caution should be exercised in the weight attached to this criterion in determining the nature of the relationship between the adults.
[FN103]. SSAA Decision No 87/84 (29 November 1984) SSA 30/84.
[FN104]. SSAA Decision No 73/99, above n 98, and SSAA Decision No 56/01 (16 May 2001) SSA 271/2000.
[FN105]. See for example, SSAA Decision No 135/01 (26 September 2001) SSA 333/2000. Noting that the appellant had not "found it necessary to obtain a domestic protection order against her husband", the Authority went so far as to suggest that "the submission that the appellant did not have the emotional strength to disassociate herself from involvement with her husband is in a sense an admission that the appellant has not distanced herself from the emotional bond of the marriage". Similarly, in SSAA Decision No 063/02 (23 May 2002) SSA 169/01 the Authority accepted that the appellant was assaulted by her husband on more than one occasion but emphasised that she had not sought a non-molestation order. In both cases, however, as in others, the Appeal Authority also found that evidence of lack of financial support was not credible. See also SSAA Decision No 070/2004, above n 100, in which -- against a background of alleged abuse and physical violence -- the Authority emphasised that no "decisive action to leave the family home" had been taken prior to an application for a domestic violence order.
[FN106]. SSAA Decision No 062/03 (21 May 2003) SSA 243/02.
[FN107]. Social Security Act 1964, s 86 enables the chief executive to recover benefit payments that have been made in excess of the relevant legal entitlement. See "Social Security Law", above n 36; Black, Harrop and Hughes, above n 11; and The Laws of New Zealand Social Security, above n 36.
[FN108]. See n 38.
[FN109]. Once the woman concerned is in receipt of an emergency maintenance allowance, the guidelines state that there should be a reference to an appropriate agency with a view to seeking a resolution of the abuse. Clause 15.2 of the Special Needs Grants Programme, approved under section 124(1)(d) of the Social Security Act 1964 provides for recoverable and non-recoverable grants if a sole parent is relocating with the assistance of a social service agency after experiencing family violence. See generally the MAP guidelines, above n 38, under "Special Needs Grants".
[FN110]. Under the concept of notional entitlement, the amount of any debt to be recovered under section 86 of the Social Security Act 1964 may be reduced in appropriate cases by an amount equivalent to any other benefit, grant or allowance to which the beneficiary might have been entitled during the relevant period, see Moody v Chief Executive, Department of Work and Income [2001] NZAR 608 (HC). It is suggested that the Chief Executive should bear the responsibility for raising this as a possibility on appeal, even if only for the purpose of explaining why notional entitlement was not applied to the debt. Notional entitlement was applied to a violent relationship in SSAA Decision No 063/02, above n 105, but only so as to reduce the overall debt by discounting several periods where the appellant had left her violent husband to live separately. The principle was also applied to a domestic purposes benefit to which the appellant was not entitled in Appellant (70/2000) v Department of Work and Income [2000] NZAR 541 (SSAA), off-setting the debt by half the married rate of what was then the community wage.
[FN111]. SSAA Decision 135/97 (17 December 1997) SSA 117/97.
[FN112]. SSAA Decision No 33/93 (25 March 1993) SSA 51/93.
[FN113]. See n 95.
[FN114]. A point made obiter by the Court of Appeal in R v Creeks, above n 90 which concerned an appeal against conviction for social security fraud, based on failure to disclose that the appellant was not living apart from her husband whilst claiming a single person's benefit.
[FN115]. Social Welfare (No 2) Bill 1990, cl 2(3). The criteria then listed in cl 2(3) reflected the "indicator" list approach later found wanting in Ruka v Department of Social Welfare, above n 63. For a contemporary analysis, see Living Together Without Marriage, above n 87, 58-59.
[FN116]. The alleged father has no right of review or appeal against the grant of a DPB, such rights being restricted to applicants or beneficiaries affected by the relevant decision: Social Security Act 1964, ss 10A and 12J. For the Child Support Act 1991, see Dick Webb and others (eds) Family Law in New Zealand (vol 1, 10 ed, Butterworths, Wellington, 2001) 339 and following; Peter J Trapski and others, Trapski's Family Law (vol 5, Brookers, Wellington, 1991) "Child Support".
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