Dialogue: No room for the suspicious approach in new-look Winz

The new broom at what was Work and Income must make many changes, including the introduction of a non-judgmental culture, writes CATRIONA MacLENNAN*.

New Social Development Ministry chief executive Peter Hughes has a big job ahead of him when he takes up his position on Monday.

Much work needs to be done to transform the culture in the former Work and Income Department and ensure that staff apply the law in their dealings with beneficiaries.

All too often it appears that Winz staff have a suspicious and hostile approach to people seeking benefits, assuming that they lie to try to obtain money to which they are not entitled.

Some Winz staff appear to have little understanding of the terror and despair provoked when a benefit is suddenly cut off and people are left with no money to pay for food and rent.

It is small comfort that several months later Winz may finally admit the error and cancel the debt.

In such cases, I have never once had Winz apologise for the error or acknowledge the devastating impact on beneficiaries' lives.

The lack of regard for the application of the law displayed by some Winz staff is also profoundly disturbing. I have in some cases repeatedly explained the law to Winz, only to have my explanations ignored.

Investigators and managers in some instances ignore the legal advice provided by their own departmental solicitors.

Two High Court cases this year cast a disturbing light on the way Winz operates and illustrate how much needs to be done to overhaul the department.

In May, Justice John Doogue in the High Court at Nelson dealt with the case of a couple, the Worralls, whose ACC was cancelled and who later received payments from Winz.

When ACC payments were reinstated, Winz pursued the couple for an alleged overpayment.

The judge ruled that Winz must cancel the debt, describing the episode as "one of the most disturbing cases in all the years I've been a judge".

He said the couple had been caught between the policies and procedures of ACC and Winz.

"What worries me about this case is here you are, arguing legalistic points, when both of you are welfare organisations ... two departments arguing on the basis of law and money which they [the Worralls] received in innocence.

"I must say it leaves an awful taste in my mouth."

It took seven years of battling for the Worralls to have the issue resolved, taking a terrible toll in stress and anxiety.

Last month, Justice Doogue dealt with the case of Valarie Scoble, who suffered from osteoarthritis.

Alterations had been made to her Housing New Zealand property because of her disability. That meant she was eligible for a tenure protection allowance, as provided when the Government introduced market rentals for Housing New Zealand properties in 1991.

Ms Scoble applied for an accommodation supplement in 1993, but was not aware of the tenure protection allowance and did not apply for it in writing until 1999.

The Social Security Appeal Authority found in favour of Ms Scoble, but the department appealed.

The question for the High Court was whether, when Ms Scoble applied for the accommodation supplement, the department should also have considered her eligibility for the tenure protection allowance.

The department argued that it could consider an application in writing only for a specific benefit. It could not extend that deliberation to any other unnamed benefit.

Justice Doogue rejected that assertion, describing the Winz approach as legalistic and restrictive.

"I cannot believe that the legislature could ever have intended that because of a misdescription of a monetary benefit, or a failure to refer to all possible monetary benefits which the circumstances support, the chief executive has no power to ensure that the correct benefit or benefits are paid.

"Applicants for benefits come from those most in need in our community. They will often be persons lacking the requisite skills to identify or specify the benefits to which they might be entitled.

"I cannot contemplate that Parliament would have intended that the most disadvantaged members of our community should be further disadvantaged if their applications misnamed or failed to name the precise monetary benefits to which they are entitled under the act.

"Instead of claims for assistance being able to be dealt with on their merits in the relatively simple and informal manner that has existed [to] date, claimants would be forced to seek independent advice to ensure that they were applying for every monetary benefit to which they were entitled before they made application to the chief executive."

Unfortunately, what the judge describes is what happens in practice. I always go through with my clients a list of every possible benefit to which they might be entitled, and advise them to ask specifically for each one. If they do not, they may not receive it, even though the law provides that they are entitled to it.

The culture of Winz needs major changes so staff understand that if the law provides that a person is entitled to a benefit, it is the department's job to ensure that person receives the benefit.

It is not the job of staff to make moral judgments about people's lives or punish them for actions of which staff disapprove. I hope I never again have a staff member tell me that a client should not be having sex when she is on the domestic purposes benefit.

The flawed benefit review committee process should be overhauled and there should be a requirement for all files to be reviewed by a Winz lawyer before a benefit review committee hearing.

Staff training is desperately needed so that staff understand the law and realise they are obliged to apply it.

In particular, significant training is required in the law relating to "relationships in the nature of marriage". People entitled to benefits are in some cases facing charges in the criminal courts when, in fact, they are legally entitled to benefits.

If the agency does not overhaul itself, it can expect an increase in litigation challenging its decisions.

This is a time-consuming, stressful and expensive means of resolving issues. But there appear to be few other options.

* Catriona MacLennan is a South Auckland barrister.