Cash assistance to solo parents: the exercise and control of statutory power

Abstract

This thesis examines the use of discretion in the New Zealand welfare system. Cash assistance to solo parents by way of emergency maintenance allowance, domestic purposes benefit and accommodation benefit is used as a case study in the examination. The broad theme is that a shift has occurred from what the law in theory in this area is - statute - to what the law in reality is: the departmental instructions. The particular theme is that there are defects in the system of cash assistance to solo parents in the light of ideal qualities that a New Zealand welfare system would possess. These ideal qualities include flexibility; simplicity; openness; participation in the system by claimants; certainty; consistency; flexible methods of investigation; ease of administration; and effective review and appeal. The themes are pursued in three ways. The first is to describe certain governmental powers and their exercise in terms of the political and legal forces which shape them. Political and public attitudes towards welfare (Chapter Two) have been reflected in the qualities which the welfare system should possess (Chapter Three) and, in particular, in the development of the domestic purposes benefit for solo parents (Chapter Four). The second and third methods are more specific: analyses of the development of institutions and procedures to exercise and control the powers; and analyses of the substantive legislation and departmental instructions which grant the powers. Part II examines a full range of bodies available in the social welfare context, how attitudes to welfare have directed their development and procedures, the extent of their authority over matters which solo parents bring to their attention and the extent to which they possess qualities desirable in the administration of a welfare system. Part III examines the substance. Eligibility rules are studied in the light of attitudes towards welfare, and they are seen in operation so that reflections of the attitudes - seen as qualities of the welfare system from viewpoints of both civil servant and beneficiary - are exposed. The conclusions to the thesis, in accordance with its themes, are both broad and particular: there is in the administration of cash assistance to solo parents an emphasis upon the use of departmental instructions; and the operation of the cash assistance lacks certain desirable qualities. Part IV documents the absence of certain qualities in a single case and proposes reforms to remedy the situation. It proposes as a framework for the reforms a review to determine whether the Department is using its resources in the most efficient and economical way. That review would have several terms of reference related to assistance to solo parents in the light of this thesis: (i) the compilation of a package of materials to assist departmental officers in the performance of their tasks; (ii) the writing of instructions which are comprehensive but comprehensible to officers and applicants; (iii) establishing a process of regular review and updating of instructions; (iv) establishing a format which facilitates modification of the instructions; and (v) instituting a procedure by which the instructions can be made known to the general public and to the individuals affected by them. Where law ends, discretion begins, and exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness .... [T]he central inquiry is, what can be done that is not now done to minimise injustice from exercise of discretionary power. The answer is in broad terms, that we should eliminate much unnecessary discretionary power and that we should do much more than we have been doing to confine, to structure, and to check necessary discretionary power. The goal is not the maximum degree of confining, structuring, and checking; the goal is to find the optimum degree for each power in each set of circumstances. Kenneth Culp Davis, Discretionary Justice. A Preliminary Inquiry (1968), 3-4.