Lawyers
in anti-trust cases are fond of using hypothetical counterfactuals to cloud the
issue: If the monopoly supplier were not in fact dominant in the market would
the commercial behaviour in dispute still be questionable? The Court of Appeal dismissed use of
counterfactual arguments to support a claim for a social welfare housing
benefit.
At issue was a temporary accommodation
assistance benefit available to Christchurch residents displaced by earthquake
damage. The Morgan family were forced to
move while their damaged home was repaired.
They moved into a house owned by their family trust. It was previously tenanted. The Morgans signed a tenancy agreement to
cover their occupation of the family trust-owned home. Initially their earthquake insurer met the
rental costs. They applied for an accommodation benefit when these payments stopped. Social Welfare refused, saying they were
occupying their “own” property. The High
Court decided they were entitled to a benefit, a decision reversed by the Court
of Appeal.
The Court of Appeal was critical of the
High Court’s acceptance of a counterfactual argument: If the Morgans had rented
a property from a stranger, then would a benefit be payable? Hypothetical scenarios should not be used to
determine eligibility for benefits, it said.
Ministry
of Social Development v. Morgan – Court of Appeal (22.09.15)
15.107