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Base Camp. Day 1

OK. Let’s be clear on what has been achieved so far in ensuring this book gets written. If I’m going to work out how to get up the mountain I need to work out what got me to base-camp and what resources I can call on to get me there. Perhaps I need to change the boring analogy. People usually describe some hard task as a mountain to be climbed. Snore. Well. Analogies can be changed and played with. This is not a post about an analogy. Onwards.

Right what do I have so far. Well, I was lucky enough to get the support of the New Zealand Law Foundation to carry out research for the book. Accordingly I had two really talented research assistants help me out over 2013 to get this research done. Much of the research focused on the following matters:

  • creating case briefs for several dozen higher court decisions involving social security law
  • identifying the specific legislative changes that have occured in the wake of the recent tranches of welfare reforms
  • briefing many hundreds of paper-based and electronically available decisions of the Social Security Appeal Authority from as early as 1987. These briefs have now been collated into a simple database for useful searching.
  • identifying rates of success of appeals before the SSAA, and instances where the SSAA interpretation or approaches have been disapproved of in the higher courts. 
  • identifying use of ex-gratia payments by the Ministry of Social Development
  • identifying the primary legislative areas where appeals have been directed.

[A note for any eager beaver US readers: in the NZ context ‘Social Security’ refers not to insurance, but to the welfare regime, governed by our primary legislation the Social Security Act 1938. The terms ‘Welfare’ and ‘Social Security’ are interchangable] That sounds all well and good, but how does this material get used in the book? I wanted this research to be done for a number of reasons. Firstly, the Social Security Apeal Authority is perhaps unfairly, considered something of a poor cousin to other administrative judicial bodies, such as the ACC division of the District court, even though both sets of appellants often overlap. The precedent value of SSAA decisions is not very high in the eyes of the higher courts of New Zealand. Therefore little attention is paid to these decisions. I think this should change to some degree, so thistext must give the body and its decisions some profile. Actually, on reflection that lack of profile might also be claimed for most social security law decisions. Very few lawyers take social security cases on behalf of claimants outside of the community law/benefit advocacy context. Graduates of New Zealand lawschools are very unlikely to have encountered social security cases in their journeys though lawschool. Only Victoria teaches welfare law (social security law) at undergraduate level now. Only very few graduates will ever encounter a social security case.  this research therefore to some degree is aimed at undergirding a text that will introduce students and practitioners to the practice of social security law, while providing them with case analyses and descriptions that will hopefull make the dull legislative provisions live a little for the reader. Social security law is full of ordinary people in sometimes quite desperate or painful circumstances in a fight with bureaucracy. These cases should serve to illustrate those issues.

As I write this, I think each chapter dealing with specific benefit types should include handy case briefs from higher courts and the SSAA where those briefs will serve to illustrate probems of legal interpretation, and also perhaps where the facts of the case make it stand out for a reader.

In addition to this ‘primary research’ I am engaging in secondary research to undergird my examination of the relevant law for each chapter. Some of this has been done, other such research I’ll carry out on the hop, as it were.

So I have a pile of textbooks staring at me, and a bunch of papers. What next?  At this stage I need to be honest about the kind of writer that I am. I have never been a writer that is extremely organised. I guess I would describe myself as ‘organic’. I have an idea, I do msome research, I revisit my idea, to see if it holds water, and if it does, I craft an argument out of the original idea. A textbook, however, is not, as far as I can see, based on this kid of writing, and perhaps this is what is causing me angst. The idea of a textbook is that it is somehow programmatic. It identifies the law, how to interpret the law, what the implications of that law may be.  Of course the expertise and preferences of the writer are reflected in how the text is written what is emphasises, what is explained in more depth, what interpretatiosn are explored (or ignored). The notion that a textbook can be definitive is a little scary to me. Well. Something tells me I had better suck it up.

Ok. Sucking it up then. I have an outline that I’m following. It looks something like this (it has shifted over the last few months):

Chapter 1: historical overview: 19th century antecedents of the NZ welfare state,1935 Savage government, a system supporting people suffering from identified social contingencies, ongoing and pervasive exclusion of Māori, early administration,morality and means testing. Early legal tests set, some of which still remain.

Chapter 2: 1970s bipartisan agreement though the Royal Commission on Social security; understandings of poverty, ideological hardenings over suceeding decades; the rhetoric of welfare.

Chapter 3: Key ponts of social security law that are most often subject to review and appeal, and what those key things teach us:

  • administration (use of administrative discretion)
  • backdating and commencement of benefit
  • conjugal status/relationships in the nature of marriage
  • allowable costs (eg in Disability Allowance, Special Benefit etc)
  • entitlement to Jobseeker Allowance
  • rebt recover/overpayment
  • superannuation (residence requirement)
  • review of benefit

Chapter 4: Family benefits: entitlement (Sole Parent Support, Unsupported Child’s Benefit) Orphans Benefit, Supported Living on ground of Patient requiring care; Childcare support 

Chapter 5: Young people: Youth payment

Chapter 6: Superannuation, are for elderly: entitlement, residential requirements

Chapter 7: Incapacity, Disability, supported living on grounds of sickness, disability, injury, or total blindness

Chapter 8: offending, social security sentencing

Chapter 9: The right to social security

There are some low hanging fruit here. I have written some articles which address some of the matters in the outline. Obviously I can’t just plagiarise myself by importing that material wholesale into the final text, but at least that material can serve as a stating point, and then the material upgraded, updates in intergrated into the relevant chapters.  Rightyho. My next post will report back on the process of gathering the exisiting written material for each chapter (including the writing I have already done which can be slotted in). Sounds like a plan. or a start, at least. 

 

 

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