I am calling it a night now doppel ... but there are two decisons within NZLII archives relating to a pair of fraudsters who may have had WINZ and ACC entitlements during a time of undeclared income. In addition to imprisonment and forfeiture of all their assets ... the issue of overpayments versus income entitlements was raised too ...
Judge Moran, cancelled the reparation orders when imposing the forfeitures saying,
“In general terms it is the public purse that benefits from the forfeiture orders and the reparation orders and it would be inappropriate and unjust for the public purse to receive the double benefit of both forfeiture and reparation.
While the Accident Compensation Corporation and the Department of Social Welfare might wish to receive its share of the proceeds of forfeiture, I can find no authority in the Act for my directing that the proceeds of sale or forfeited property should be applied to satisfaction of reparation orders.”
It looks like this decison which came out the year after the one you referenced is due to these weaknesses in NZ Law with regards to confiscations and debt recovery law etc
[28] Following this decision it was discovered that any amount recovered by the Crown under the Proceeds of Crimes Act could not be transferred to the Ministry of Social Development and offset against benefit debt. A decision was made by an officer of the Department that the full amount of $135,362.41 would need to be recovered directly from the appellants. The Chief Executive was entitled to correct the mistake made as a result of this earlier misunderstanding. His decision in that regard was not an attempt to alter the decision of the Benefits Review Committee, but was in effect a new decision.
[29] The question is whether or not this new decision can be said to have been confirmed or varied by a Benefits Review Committee thereby establishing jurisdiction for this Authority to consider an appeal. In this case it has always been the intention of the Chief Executive to recover the full amount of overpayment; however the sources from which it can be recovered have changed. It will often be the case that there will be changes in the amount sought to be recovered between a Benefits Review Committee decision and a hearing by the Appeal Authority. It would be administratively impractical if all of those decisions were required to be referred back to a Benefits Review Committee before an appeal could proceed. Whether or not as a result of such variations the requirements that the appeal before the Authority is a matter which has been considered by the Benefits Review Committee is satisfied will always be an issue of fact and degree in each case.
The other main thing I spotted in these wee hours is that the burden of proof about remaining entitled to income payments during the specific time of dispute &or overpayments .. was placed on the fraudsters after they were released from prison etc
[34] If the appellants wish to continue to dispute the actual amounts of the overpayment, they will need to satisfy both the Benefits Review Committee and if necessary, this Authority, that the issue has not previously been decided by a Court. Moreover, if the appellants are able to persuade either the Benefits Review Committee or this Authority that the issue of the amount of the overpayment has not already been decided, in the particular circumstances of the case the onus will be on the appellants to demonstrate that they were eligible for benefit at some period or periods during the period of the overpayment.
[35] If this matter returns to the Authority, the Authority will require detailed written submissions and statements of evidence relating to the periods in which the appellants claim they remained entitled to a benefit.
ttfn
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