This is a report which highlights how corrupt the pension and judicial system in New Zealand are. Mid 2023 I tried to interest a few well-known members of the New Zealand media in this scandalous issue. But they did not even reply to my emails. The same when I asked one journalist I thought I had had a good connection with over the years, if he had been muzzled. No reaction. Being a journalist with decades of experience myself, I am more than astounded, to say the least.

These journalists would have had better resources and connections to dig deeper into the issue. But there was and is absolutely no will to do any research. Make your own conclusions why journalists who blow up minor political issues into scandals, stay mum and ignore the information I have passed on to them.

It was irrelevant if they found the Direct Deduction Policy fair or unfair and if they understood the different kinds of pension systems, as this story was not about the policy but about the impossibility of getting fair hearings with government departments, authorities, agencies, and the Ministry of Social Development (MSD) in particular.

Xenophobic abuse and Pom-bashing

So here is this case of injustice. It is about a pensioner couple who have been living in New Zealand for 50 years and who receive contributory UK pensions. They requested an appeal hearing at the Social Security Appeal Authority (SSAA) because they believed MSD was not entitled to deduct their UK pensions from NZ Super. They are convinced that MSD applies the Direct Deduction Policy (DDP) – Sections 187 to 191 of the Social Security Act 2018 (formerly: Section 70) – instead of the regulations of the Social Security Agreement between New Zealand and the UK.

This couple were originally willing to be named but have changed their mind after a barrage of ignorant and xenophobic abuse and Pom-bashing on Facebook when the NZ Herald published an article on the official outcome of the case in early July 2023. Unfortunately, due to suppression orders, the NZ Herald had no opportunity to get in touch with the couple and could only report on the SSAA’s report but not on the scandalous circumstances that have surrounded the case.

These are the links to the story and the relevant Facebook post:

https://www.nzherald.co.nz/nz/migrant-pensioners-living-close-to-breadline-after-failing-to-win-appeal-against-deductions/YBYI2RTPWRCE3B2VICBDUXBCHU/

https://www.facebook.com/100064235584294/posts/pfbid0FUgKMRpT3TyXumS8ELnN1QQfmHXwJBMruq4sCPNSd1R6GE8yH3LXL6LMj77vnK5vl/?sfnsn=mo&mibextid=6aamW6 

This is the link to the published SSAA decision which is the only source of “truth” for media in New Zealand:

https://www.justice.govt.nz/assets/Documents/Decisions/2023-NZSSAA-8-15-May-2023.pdf

The "decision of the day" made seven months later

The SSAA hearing took place at the High Court in Hamilton on 4 October 2022. Another pensioner named Bob Newcombe supported the retiree couple as a witness. Like the Appellants he and his wife have been suffering the deduction of several UK pensions (Class A, Basic, Graduated and State Earnings Related Pension Scheme = SERPS). According to MSD information, at the time they were heading to losses of NZ$ 90,000 each since 2012.

The Appellants and Bob Newcombe were told that they were not allowed to make their own audio recording of the hearing but that they would be provided with the audio recording and that a decision would be made by the end of the day.

Seven months later, on 15 May 2023, the SSAA dismissed the appeal. The Appellants were given 10 days to appeal at the High Court or the appeal would be dismissed. This was impossible, not just for the massive cost of such an appeal (a lawyer they consulted would charge $800 per hour!), but because the SSAA and MSD had supposedly lost the audio recording of the entire court hearing bar the first 5 minutes due to “a very unexpected technical fault”, and they wouldn’t provide a transcript “due to cost”.

I wonder how much photocopies cost nowadays as, of course, a transcript writer was present at the hearing. Otherwise, how would the SSAA have been able to make a 12-page decision (dated 15 May 2023)? A decision based on what? And how could the SSAA claim that providing a transcript would be too costly? Really! I am sure the pensioners would have covered the cost of photocopies if the SSAA had insisted on sending the transcript by snail mail. (Most correspondence with MSD and the SSAA has been done by email and email attachments.)

No transcript after destroyed audio-recording

In a letter received by the Appellants on Thursday, 06 July 2023, the SSAA Chair named G Pearson told them that “a written transcript would not usually be provided unless the High Court directed that was necessary for an appeal”. He or she also said: “A transcript of the recording is seldom necessary for an appeal, as appeals are restricted to questions of law. Generally, questions of law arise from the reasoning evident in the Authority’s decisions, and no transcript is required for an appeal.”

As a normal-thinking and decent person I would think that it would be normal procedure to provide the written transcript if the recording was destroyed by technical failure. And for the retirees it was essential to have the recording or the written transcript because it contained new evidence and “questions of law” that have not been mentioned in the decision.

The Appellants suspect that the determination came straight from MSD and was based solely on their file of 11 years. So, what about all the new evidence they had provided at the hearing? They say: “This was a bum hearing only to satisfy our request, but they had no intention of changing anything. This means that all our evidence does not exist for whatever reason.”

No word of the essential new evidence in the decision

And yes, there is no word of the essential new evidence in the 12-page decision. This new evidence was that the Deputy Chair, Rachel Palu, obviously looked up legislation on her laptop and agreed with the complainants that MSD should only deduct non-contributory Class C pensions from the UK but not contributory (tier 1) Class A pensions like the ones the complainants receive. She then asked MSD lawyer Trishna Kanji to respond – but all there was, was silence.

Bob Newcombe describes this part of the hearing as follows:

“Ms Palu was then challenged that whilst it is the Agreement's Article 15 in which the word 'benefit' determines which pension is to be deducted from NZ Superannuation, note: it does not refer to benefits, plural; in law all UK State pensions are referred to as benefits.

It was challenged that the word 'benefit' refers to the Class C benefit, a state-funded benefit for old age, exactly the same as NZ Superannuation which is wrongly lauded as unaffected by assets or income.

She then referred to her laptop and confirmed from the legislation she examined: 'Yes, Class C.'

Ms Palu then asked the MSD lawyer Trishna Kanji to respond to my challenges, result: silence, neither she nor the MSD appeal officer defended the deduction of Classes A&B pensions nor the use of the Social Security Act.

As the evidence I gave was not challenged it was effectively proven correct.”

Explosive nature of "Class C" admission

The DWP, the UK government department responsible for pensions, has turned a blind eye to these indiscriminate deductions for decades. This means it might be complicit in New Zealand/MSD applying the wrong deduction scheme (Direct Deduction Policy instead of the Social Security Agreement) and accepts that contributory pensions are deducted from NZ Super and not only social welfare benefits, non-contributory and residence-based pensions. In this context NZ Super is a social welfare benefit (“to alleviate poverty at old age”) that is paid to millionaires but not to poor people who receive an overseas pension and nothing else.

I can only suspect – my speculation – that the SSAA got aware of the explosive nature of Ms Palu’s "Class C" admission and needed to make it disappear, as – according to the official MSD statistics from March 2023 - 59,574 UK pensions were deducted from NZ Super and the major part of the amount of NZ$ 275,474,778 transferred straight from the UK government into MSD‘s bank account in New Zealand. (And these numbers don’t include pensions and pensioners who do not receive any NZ Super because their UK pensions are higher than NZ Super.)

During these seven months after the hearing in the Hamilton High Court the Appellants and Bob Newcombe tried incessantly to have the audio recording or the transcript released. They even wrote to Chris Hipkins [then Prime Minister) and Kiri Allen (then Minister of Justice] because there was no reaction, all to no avail. 

Twelve requests for the evidence but it nothing has ever arrived

Later (email from 29 May 2023) the Tribunals Unit of the SSAA claimed they had informed the couple and sent them the five rescued minutes of the destroyed audio evidence on even two occasions. Nothing has ever arrived despite the complainants requesting the evidence TWELVE times. It could not even be found in the spam folder.

The email from 29 May 2023 said:

“Response from Deputy Chair as follows. 

As explained in our email of 15 October 2022, due to a very unexpected technical fault with the recording of the hearing on 4 October 2022, only the first 5 minutes of the recording was saved.  An audio file containing what was saved has been sent via emails to you on 15 October 2022 and 3 February 2023.  Can you let us know if you have not received the recording attached to those emails.  

The Chair of the Authority has determined that a written transcript of the recording will not be prepared due to cost. The usual procedure is that the High Court will order a transcript if it considers that is necessary or appropriate.”

As said, nothing has ever arrived. The pensioners are convinced that the SSAA is clearly holding back respectively suppressing evidence.

I would have thought that in a civilised country such a hearing where the authorities refuse to release written transcripts and other evidence would be considered a mis-hearing and the whole case heard once more. But not so in New Zealand, or at least not when MSD is involved. How on earth should someone prepare an appeal if they haven’t been provided with the evidence of the first hearing? This way MSD only had to wait 10 days and the appeal was dismissed. The SSAA/MSD call it “functus officio”. Or: of no further official authority or legal effect.

But the story doesn’t end here.

The High Court has no record of the hearing

The pensioners have tried to convince the High Court that their SSAA hearing was a mis-hearing and urged the Law Society to have the hearing deemed a mis-hearing. But the High Court in Hamilton has told them that they have no record of an SSAA appeal hearing ever having taken place there. Further, that they were not in any position to make a judgment regarding a mis-hearing or acting to deliver an appeal date. However, if the pensioners were prepared to pay $740 to the High Court, they would investigate what could or could not be done.

Sure enough, the pensioners said they wouldn’t pay the $740, as the High Court in Hamilton had already stated that they had no record of the meeting. How would they suddenly find records if $740 were paid? They say: “This is all too clandestine from every government department to cover up the fraudulent manner in which they are all operating from and to piss us all off, so we stop the challenges.”

After more exchanges the High Court let the Appellant know that the $740 would be $500 for an appeal for extending the 10-day time limit and $240 for the application.

The husband writes:

“I did expect them [the High Court] to have a record that the meeting actually took place on the day, date, time etc and who was involved. They didn’t. Then the SSAA informed me to contact the High Court to commence the appeal process because only the High Court would have a record of those facts and that I only had 10 days from receipt of the dismissal.  After being informed by the High Court they had no record of that information I once again returned to the SSAA to provide me with the audio and transcript … which they refused to provide me with again. How could I start the appeal process when the High Court had no record of any meeting taking place and that SSAA would not provide me with audio and transcript of this fictitious meeting?”

It looks as if they were playing ping-pong with him.

Not the first case of destroyed audio recording

As quite a few pensioners affected by the Direct Deduction Policy have appealed BRC (Benefit Review Committee) and SSAA decisions, there is a regular exchange of information. The Appellant spoke to a retired person from Singapore I also know, as in his case MSD even deducts regular payments from a Singaporean savings scheme and treats it as a pension – which it isn’t. It’s like treating monthly payments from a life insurance as a pension.

So, this man told him – and I think he has told me in the past, too, I just don’t remember everything by heart, as an incredible lot of people contact me via the NZ Pension Protest website – that when he applied for the audio recording and transcript of his High Court Hearing, they couldn’t furnish him with the audio … as there was a technical problem with the equipment! At least he received a copy of the transcript – but it was so heavily redacted (60%) that it was impossible for him to gain any benefit from the remaining 40%.

That’s even more astounding: to redact 60% of a hearing where this person was present! Looks like a secret court to me. Or banana republic.

The strange dealings of MSD do not end there.

When the pensioner couple applied for NZ Super, they refused to accept the Special Banking Option (SBO).
[SBO means that the UK pension authority transfers a UK pension straight into MSD’s bank account and MSD then pays full NZ Super to the pensioner. This is convenient for MSD, but it is also the way you completely lose control, and I would only recommend it to people whose UK pensions are very small. Some of them even find it generous that MSD “tops up” their overseas pensions to the level of NZ Super. What they don’t understand is that MSD first reduces the amount of NZ Super by the amount of the UK pension and then pays it back to them under the new name “full NZ Super”, making them pay twice for the same thing.]

How did MSD gain information without signature?

So… the couple’s UK pensions (NIF) do not go straight to MSD but into a personal account – which is everyone’s right who does not sign up for the SBO. When first confronted with the Direct Deduction Policy and in shock about it, they refused to provide MSD with the paperwork from the UK which would have shown the amount paid to them. You are obliged by law to give this information when applying for NZ Super and receiving an overseas pension. But never mind, instead of threatening them with suspending their NZ Super, which is what MSD normally does when someone doesn’t comply with their demands, MSD obviously gained the information fraudulently.

The husband writes:

“I did not sign anything which gave them [MSD] the right to go to the UK NIF to find out how much we were being paid each month. But MSD went without my permission to the NIF who gave them the amount of our pensions.  I demanded the page from the booklet we had to sign to give MSD permission to get that information.  When they sent me the authorisation page which had to be ‘Signed by me’, the signature wasn’t mine!!!!   It could only have been someone at MSD who signed and sent the authorisation page to the UK NIF to get the information released.”

So far, so bad.

The impossibility to get a fair hearing 

Many people with overseas pensions don’t even apply for NZ Super because they don’t want to deal with MSD bullies and ignoramuses. But if their overseas pension is significantly lower than NZ Super, they have no other choice. 

Every now and then pensioners request reviews of the deduction policy by the Benefits Review Committee (BRC) and, as the second step, the Social Security Appeal Authority (SSAA). Both usually are hopeless undertakings as both authorities are stacked against the pensioners. Still, a few brave souls go to the High Court – which tells them that they can’t consider the fairness and not even the Human Rights aspect of the law but only examine if the law has been applied correctly. This usually is the case because the law as it stands – Sections 187 – 191 of the Social Security Act 2018 (formerly: Section 70) – has been passed by Parliament, as unfair and discriminatory as it is, with public servants able to keep their domestic and overseas pensions on top of NZ Super!

As the CEO of MSD has the discretion to determine which overseas pensions can be deducted and which can’t, the policy has become an all-encompassing money-grab. It abuses compulsory contributory overseas pension schemes and the affected individuals to keep the cost of NZ Super down – and then praising themselves for the affordability of NZ Super, making it needless to raise the age of superannuation.

To see the impossibility of going through the judicial system in New Zealand, I recommend reading these pages:

https://sites.google.com/nzpensionprotest.com/nzpensionprotest/hopeless-appeal-systems

https://sites.google.com/nzpensionprotest.com/nzpensionprotest/the-fight/hrrt-hearing-2018

https://sites.google.com/nzpensionprotest.com/nzpensionprotest/the-fight/outlandish-decision-by-the-hrrt