The Benefit Review Project

In this article, first published in the Wellington People's Centre November 2002 newsletter, Stephen Ruth outlines a WINZ project reviewing cases where assessments of beneficiaries in 'defacto' relationships impacted on benefit payments.

--------------------------------

The Benefit Review Project is reviewing benefit debts established against people whom Work and Income considered were in a relationship in the nature of marriage (often called a marriage type relationship or a defacto relationship). The review will also look at situations where people had their benefit reduced or stopped for this reason.

The reason for this review is that an independent report found Work and Income had been using the wrong legal test to determine whether a person was in a relationship in the nature of marriage. Work and Income continued to use an old 'checklist' of approximately 10 factors to decide whether or not a person was in a relationship in the nature of marriage despite the Court of Appeal in 1996 having said this method was wrong. There is an explanation of the correct test at the end of this article.

As a consequence of this report the government instructed Work and Income to review debts against people that it established because it considered the person was in a relationship in the nature of marriage. This review is being called the Benefit Review Project and is being run by the national office of the Ministry of Social Development.

The review is only for debts established in the period 1 November 1996 through to 31 December 2000.

The review does not cover cases that were prosecuted in criminal court (unless the prosecution was unsuccessful) nor does it include cases that were heard by the Social Security Appeal Authority. Work and Income estimate that 15,600 people may be affected and that up to $25 million in incorrect debts may have to be disestablished. However, until each case is actually reviewed it's not possible to know how many of the debts were incorrectly established.

Work and Income has written to everyone affected if it has the person's current contact details (this is estimated to be about 6,500 people). It is also sending reminder letters and is now sending letters to the last known address of people affected where it does not have current contact details.
 
NB. To have a debt reviewed the person must apply to Work and Income for the review - Work and Income is not reviewing all cases on its own initiative. A request to have a debt reviewed MUST be lodged by 31 March 2003!

If you have a debt due to Work and Income's considering you in a relationship in the nature of marriage but it is outside the above time-frame then you should contact your local benefit advocacy service as soon as possible.

The review process

The legal status of this review is an internal administrative review (this is different from the normal review carried out by a benefits review committee: see below). The review is being carried out by three panels. Each panel has two Work and Income people and a independent person appointed by the Minister. The review is in two stages.

Stage One: In the first stage the review panel will examine Work and Income's file to determine whether or not the investigator who established the debt applied the correct legal test at the time. If the investigator did apply the correct test the debt will stand. If the correct test was not used (or there is no evidence that the correct test was used) then the debt should be disestablished.

Stage Two: If the review panel found the correct test was not used and a person's benefit had been stopped or reduced due to this the panel will look at what benefits the person should have received. An applicant can opt not to have this second part of the review take place.

Practical steps to take:

If you have a Work and Income debt covered by this review project then our advice is to:

• contact Work and Income in writing as soon as possible to ask for a review - this must be done by 31 March 2003.

You can contact them by writing to: 

Benefit Review Project Team
Ministry of Social Development
PO Box 12-136
WELLINGTON

You can also fax a request to the Benefit Review Project Team at 04 918-0077

During the first stage of the review there will be no re-investigations carried out by the Benefit Control Unit. Rather, the review is a review of whether or not the Benefit Control Unit actually used the right legal test when it originally established the debt and or reduced or stopped a benefit. The only investigation that may take place is if a person's benefit was wrongly stopped. The investigation in these cases is focused on the person's subsequent entitlement to benefits. A person applying for a review can opt out of this second stage of the review process.

If the debt is not disestablished and you do not think you were in a relationship in the nature of marriage then you should:

• ask Work and Income, in writing, for a complete copy of your file, and,
• ask for a benefits review committee to review the decision, but,
• you should not make any statement to Work and Income without first obtained advice either from a beneficiary advocate or a lawyer- in cases regarding a relationship in the nature of marriage Work and Income has the burden of proof to show that such a relationship exists. If they cannot then the debt must be disestablished, and,
• we also consider it advisable to contact a specialist welfare advocacy agency.

Benefits Review Committee Reviews

If your debt is not disestablished by the panel carrying out the administrative review you can still ask for a 'review of decision' to have your case reconsidered by a benefits review committee. This is a separate process to that described above and it can look at not just whether the correct test was applied but also at whether the decision was correct and it can consider new information.

To have a benefits review committee reconsider the debt you must request the review in writing within 3 months of receiving the panel's decision (or later if the benefits review committee consider there is a good reason for the delay).

The correct legal test for a relationship in the nature of marriage

The correct test for a relationship in the nature of marriage has two criteria. Both criteria must be met for a relationship to count as a relationship in the nature of marriage. The criteria are:

• financial interdependence, and,
• a mental and emotional commitment to the relationship for the foreseeable future.

When determining whether or not there is the required mental and emotional commitment Work and Income must consider the effects of any violence in the relationship.

Both of these elements must be present for a relationship in the nature of marriage to exit for social security purposes.

The following are quotes from the Court of Appeal provide some guidance on how to understand these two criteria.

1) Financial Interdependence
"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 flat-mates 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. 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."

2) Mental and Emotional Commitment to the Relationship
"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." "But it must, at least, be a commitment for the foreseeable future. Any lesser a commitment would... be neither sufficient for nor consistent with a relationship in the nature of marriage." "It is this underlying commitment to the relationship which distinguishes marriage from the relationship of couples who may nevertheless share premises and living expenses.  A relationship will not be a relationship in the nature of marriage for the purposes of s 63(b), therefore, unless it exhibits this mutual commitment and assumption of responsibility."

The Court also placed emphasis on the purpose of the benefit system:

"The statutory context is of great importance in determining what is a "relationship in the nature of marriage." Other statutes use the same expression but for different legislative purposes. What is or is not such a relationship may be viewed differently for different purposes. For example, absence of financial support will be of much less significance when a relationship is considered under the Domestic Violence Act 1995. It is also to be noted that Parliament appears in that Act to have recognised the limitations of the expression and has extended the protection beyond a "partner" (including someone in a relationship in the nature of marriage) to a family member, a person who ordinarily shares a household and someone in a close personal relationship with another."

"In the 1964 [Social Security] Act also there is an emphasis on loss of financial support. This is especially to be seen in s.27B which defines an applicant for a domestic purposes benefit as a woman who has "lost the support of, or is being inadequately maintained by, her husband." Whilst the Act does not say that benefits are to be generally available on the basis of need (as the Ontario statute did in Re Proc and Minister of Community and Social Services (1974) 53 DLR (3d) 512), it is apparent that absence or inadequacy of financial support of an applicant with a dependent child is a central concern (cf. Lambe v Director-General of Social Services (1981) 38 ALR 405)."