Dialogue: DPB cases deserve to be reviewed - all 15,000

Beneficiaries are entitled to the fullest possible redress for Work and Income's failure to apply the right rules for marriage-type relationships, writes CATRIONA MacLENNAN*.

Do beneficiaries have the same right to the protection of the law as other New Zealanders?

The Government's response to the Joychild report will provide the answer to that question.

Auckland barrister Frances Joychild was commissioned to review the way in which the Department of Work and Income (now the Ministry of Social Development) had implemented a Court of Appeal decision concerning the meaning of "a relationship in the nature of marriage".

The definition is important because a person found to be in a de facto relationship - or "relationship in the nature of marriage" - will under section 63 (b) of the Social Security Act not be entitled to receive the domestic purposes benefit.

The report is an excellent document, which makes sobering reading. It confirms what beneficiaries, lawyers and advocates groups have said for years: the department has failed to apply the law correctly.

As a result, Frances Joychild recommended that all decisions made by the department establishing overpayments under section 63 (b) between November 1996 and December 2000 be reviewed.

That would involve examining 15,000 cases in which beneficiaries had benefits cut or reduced.

The report excluded cases dealt with in the criminal court because it said the correct test was applied in cases in which beneficiaries were prosecuted.

Unfortunately, we cannot be certain of this. It seems inevitable that some beneficiaries have, in fact, been convicted of a criminal offence when they should not have been.

The correct legal test may well have been applied when a defended hearing was held and the issue was argued in detail. However, in most cases that would not have occurred.

The matter would have been dealt with at a far earlier stage of the criminal process, and the beneficiary may have had little legal advice before pleading guilty.

If the amount of the alleged overpayment was not large enough for beneficiaries to be facing jail, they would not be assigned their own lawyer.

If assisted by a duty solicitor to plead not guilty initially, they would then have had to act for themselves or pay a lawyer at the status hearing.

If the department with all its resources could not understand and apply the law properly, how could some of the most disadvantaged people in the country do so?

The ministry has been considering the report since last June and is working on implementing most of the recommendations.

It is heartening to hear that.

However, it is disappointing that the report's recommendation that "cold calling" be abolished has not been accepted.

"Cold calling" involves ministry investigators turning up on a beneficiary's doorstep without warning and interviewing him or her.

It is a dangerous practice that should be stopped. A client of mine specifically told the investigator that she wished to speak to her lawyer first. The investigator told her that she should speak to the investigator, and could then see the lawyer later.

If beneficiaries say they wish to seek advice, the investigator should not persist.

In the case of my client, English was her second language and she agreed when the investigator asked if she was living with someone.

In fact, she meant she "stayed" sometimes with her partner. That meant she was in law still entitled to a benefit.

However, an alleged debt of $45,000 was established against her and the matter was not correctly resolved until it was heard by the Social Security Appeal Authority.

The report noted that, in many cases, no allowance was made in debt calculation for the fact the beneficiary might have been entitled to another benefit. As a result, the amounts being repaid are far higher than if that had been taken into account.

The ministry has agreed to place this issue on its work programme and speedy steps should be taken to deal with it.

The report recommended that ministry staff receive training in relation to domestic violence. This is vital. The report recorded that this had not previously occurred because staff believed they encountered domestic violence only rarely.

This is staggering. For thousands of women on benefits, domestic violence is such an integral part of life that it is barely mentioned. But there are indicators and staff need to be able to recognise them.

The ministry is to report by the end of the month on whether it will review all 15,000 cases. This would obviously be difficult and time-consuming, but that is not a good enough reason not to do it.

Clients I have acted for have as a result of Work and Income's incorrect application of the law suffered the following detriments: fear over a prolonged period of going to jail; extreme financial hardship as a result of benefits being suddenly cut off or greatly reduced; stress resulting in tranquillisers being prescribed; and depression arising from a huge debt burden.

Other New Zealanders would expect not only that the situation would be put right, but that they would receive compensation for their ordeal.

There is no reason for beneficiaries to be treated any differently.

* Catriona MacLennan is a South Auckland barrister.