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Social Security (Winter Energy Payment) Amendment Bill (Consistent) (Section 19(1)) [2019] NZBORARp 2 (25 February 2019)
Last Updated: 6 March 2019
![2019_200.jpg](2019_200.jpg)
25 February 2019
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Social Security
(Winter Energy Payment) Amendment Bill
Purpose
![2019_201.jpg](2019_201.jpg)
- We
have considered whether the Social Security (Winter Energy Payment) Amendment
Bill (‘the Bill’) is consistent with
the rights and freedoms
affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights
Act’).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 21859/1.8). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 19(1) - freedom from
discrimination. Our analysis is set out
below.
The Bill
![2019_202.jpg](2019_202.jpg)
- The
Bill amends the Social Security Act 1964 in respect of winter energy payments
(WEP) for the 2018 calendar year and the Social
Security Act 2018 in respect of
WEPs in and after the 2019 calendar year. The WEP regime provides an additional
government subsidy
to recipients over the “winter period,” as set
out in the Acts, to help with the higher costs of heating incurred over
this
period.
- The
Bill ensures that social security legislation authorises a WEP or purported WEP,
to a person who is receiving long-term residential
care in a hospital or rest
home, or residential care services, unless the person is a specified recipient
of higher levels of assistance.
- The
Bill also ensures that social security legislation authorises a WEP, or
purported WEP, to a person for up to a maximum of 28 days
of any 1 or more
absences of that person from New Zealand during the winter period
if:
- the
payment would be payable to that person were it not for those days of absence;
and
- those
days of absences do not affect that person’s eligibility, under the
general eligibility requirements, for the payment.
- The
Bill makes these entitlements retroactive to account for the fact that these
entitlements were within the original policy intent
of the principal Acts and
have consequently been paid for the 2018 calendar
year.
Consistency of the Bill with the Bill of Rights Act
![2019_203.jpg](2019_203.jpg)
Section 19(1) – Freedom from discrimination
- Section
19(1) of the New Zealand Bill of Rights Act 1990 affirms that everyone has the
right to freedom from discrimination on the
prohibited grounds set out in s 21
of the Human Rights Act 1993. The grounds of discrimination under the Human
Rights Act include
employment status, which includes being unemployed or in
receipt of a benefit.
- A
legislative provision will limit the right to freedom from discrimination
if:
- the
legislation draws a distinction based on one of the prohibited grounds of
discrimination, and
- the
distinction involves material disadvantage to one or more classes of
individuals.1
- The
payment of a WEP to classes of persons on the basis of their receipt of other
government benefits prima facie limits the right to freedom from
discrimination on the grounds of employment status. Those on government benefits
are receiving a
financial advantage over those not in receipt of government
benefits through the provision of the WEP. This Bill continues the practice
of
the principal Acts in providing for the WEP to be paid to some groups, and not
to others.
Social security legislation and discrimination
- Social
security legislation necessarily targets limited government assistance to those
most in need of it. Assistance, and obligations
on those receiving it, is then
tailored to suit individual circumstances. Eligibility for benefits, and
obligations on beneficiaries,
are inherently discriminatory as they are based on
drawing distinctions on many prohibited grounds.
- However,
limitations on rights and freedoms may still be consistent with the Bill of
Rights Act if they can be considered a reasonable
limit that is justifiable in
terms of s 5 of that Act. The s 5 inquiry may be approached as
follows:
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the
objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
- Instituting
a WEP serves the important objective of alleviating the harm to low income
earners and the elderly caused by cold, damp
homes during winter. This
acknowledges these groups’ particular vulnerability to winter cold, based
on their typically greater
health
1 See, for example Atkinson v Ministry
of Health and others [2010] NZHRRT 1; McAlister vs Air New
Zealand.
[2009] NZSC 78; and Child Poverty Action Group v Attorney General
[2008] NZHRRT 31.
needs and lower standards of housing. The form of assistance provided is
rationally connected to the objective, proportionate, and
does not go further
than reasonably necessary.
- The
proposed amendments contained within the Bill do not create further
discrimination. In fact, their effect is to withdraw the discrimination
against
certain classes of persons that was present within the principal Acts.
- The
principal Acts did not entitle those living in residential care or rest homes to
the WEP. This was due to heating costs being
included within the greater costs
of residential care, and the eligibility of those in residential care to
government subsidies to
cover all or part of the costs of their care.
- However,
this resulted in a material disadvantage towards those who were ineligible for
full government subsidies for their residential
care, which are means tested.
This was not the policy intent. The Bill mitigates some of the discrimination
contained within the
principal Acts by extending eligibility for the WEP to
persons living in residential care or rest homes who are ineligible for full
government subsidies.
- For
these reasons, we conclude that any limits to the right to be free from
discrimination imposed by the Bill are justified under
s 5 of the Bill of Rights
Act.
Conclusion
![2019_204.jpg](2019_204.jpg)
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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