Paragraph 70 and German Pension

Guenter Langenbucher made this Official Information request to Ministry of Social Development

The request was refused by Ministry of Social Development.

From: Guenter Langenbucher

Dear Ministry of Social Development,
under the OIA I would like MSD to release the following information: (This is related to German Pensions only)
a) Who did the research which was used to decide that the German Pension can be deducted $ for $ from the NZS:
b) Qualification/position of this (these) person(s)?
c) Exactly what articles were researched, were these articles in English or have they been translated into English? Copy of these articles or reference please.
d) Have the reports from 2004 and 2005 from MSD CEO taken into consideration when these decisions have been made? These reports state very clearly that the German Pension has little or nothing to do with the NZS.
e) Is MSD aware that the German Pension is not universal and not a benefit, contrary to NZS?
f) Is MSD aware, that the German Pension is not paid or administered on behalf of the German government? Proof of this is provided to MSD in two letters from German authorities confirming this fact.
Is this a breach of NZ Law, to deduct a Pension $ for $ under para 70, which states clearly, that the Pension must be paid by or administered on behalf of the Government of the country in which the the pension is issued?
g) Does MSD know that the German Pension paid by The Deutsche Rentenversicherung (DRV) is not a benefit administered or paid on behalf by the German Government?
h) Does MSD know, that the German Government is not paying any benefits to people who reside permanently outside of Germany?
i) Does MSD know that not everybody in Germany receives a pension from the DRV?
This is because the DRV only pays to people who contributed during their working life to the insurance? People who did not contribute to the Rentenversicherung will get a benefit from the German Government - Social Welfare Department, which might be similar to NZS, however these benefit is not universal and will not be paid or administered to persons living overseas.
j) Does MSD know that the Pension paid by DRV is considered personal property by Law in Germany and will be treated as such? To deduct this under para 70 is means testing and seizing property?
I am looking forward to truthful answers of the above questions.

Yours faithfully,
Guenter Langenbucher

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From: OIA_Requests (MSD)
Ministry of Social Development

Tēnā koe Guenter Langenbucher,

Thank you for your email received 9 January 2018, under the Official Information Act 1982. Your request has been forwarded to the appropriate officials at National office to respond. You may expect a response to be sent to you as soon as possible.

Please note that the period commencing 25 December 2017 and ending 15 January 2018 does not count as 'working days' as defined in section 2 of the Official Information Act 1982. Due to this holiday, a decision about your response would be due on 13 February 2018.

Nā mātou noa, nā

Official and Parliamentary Information team   |  Ministerial and Executive Services
Ministry of Social Development

Our Purpose:
We help New Zealanders to help themselves to be safe, strong and independent
Ko ta mātou he whakamana tangata kia tū haumaru, kia tū kaha, kia tū motuhake

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Jan McKeogh left an annotation ()

Requests by the above author need to be answered by MSD.
As a couple who has lost their full entitlement to NZS for over 4 years, we have the right to have answers by MSD to those issues outlined.
MSD are refusing many requests for clarification surrounding the anomalies of Section 70 which as public servants is not right.

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Luke left an annotation ()

Jan, a decision is not due until 13 Feb 2018, so give them a chance.

If Guenter Langenbucher actually wants general information about how MSD processes pensions or administers German pensions then he is on the right track with his OIA request.

If Mr Langenbucher wants a statement of reasons as to why MSD made a decision about his pension, he could make a section 23 request - http://www.ombudsman.parliament.nz/syste...

If Mr Langenbucher wants to seek a review of a decision of his case, he should write to the MSD and ask for an independent review of his case with the view of MSD reconsidering their position. Do not submit an OIA request. More information is at: http://communitylaw.org.nz/community-law...

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From: OIA_Requests (MSD)
Ministry of Social Development


Attachment 20180202 Signed response LANGENBUCHER.pdf
273K Download View as HTML


Tēnā koe Mr Langenbucher,

 

Please find attached the response to your Official Information Act request
regarding the deduction of German pensions under section 70 of the Social
Security Act.

 

Nā mātou noa, nā

 

Official and Parliamentary Information team | Ministerial and Executive
Services

Ministry of Social Development

 

Our Purpose:
We help New Zealanders to help themselves to be safe, strong and
independent
Ko ta mātou he whakamana tangata kia tū haumaru, kia tū kaha, kia tū
motuhake

 

------------------------------- This email and any attachments may contain
information that is confidential and subject to legal privilege. If you
are not the intended recipient, any use, dissemination, distribution or
duplication of this email and attachments is prohibited. If you have
received this email in error please notify the author immediately and
erase all copies of the email and attachments. The Ministry of Social
Development accepts no responsibility for changes made to this message or
attachments after transmission from the Ministry.
-------------------------------

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Luke left an annotation ()

Looks the Ministry has responded robustly to your OIA request.

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From: Guenter Langenbucher

Dear OIA_Requests (MSD),
Ref. to MSD answer to [email address]

Dear Mrs Sefo

I thank you very much for your response to my FYI request.

Firstly, I noted that your answers related to 2 requests I made separately on 19 Dec 2017 and
9 Jan 2018.
Please answer the 19 Dec 2017 separate and give me a statement of reasons under section 23 for this request.

Secondly, to my request dated 19 Jan 2018 you wrote that I should note that legal advice is subject to legal privilege and, if requested, is likely to be withheld……
I would like a statement of reasons under section 23, which articles were researched and on which information you based your decision to deduct my German pension under section 70.

Furthermore I would like a working link where I can find the relevant reports of the SSAA.
The link you provided did not work.

You also wrote “The Ministry is unable to identify the reports to which….. “
I was referring to the 2005 review dd. 24 Nov 2005, Report from MSD CEO Peter Hughes addressed to Minister of Finance (Cullen) and Minister of MSD (Benson Pope)
In my opinion in this report under proposal Option 5, the executives and ministers admit that they know very well, that there is a huge difference between NZS and those overseas pensions which are financed by non government contributions. (employee and employer). They also state that other than administered by the state*, they have little resemblance with the NZS!
*Please note that the German pension is not administered by or on behalf the state!

Next point is, that you did not answer my question - Is the Ministry aware that the German Pension is not paid or administered on behalf of the German government? (Ref also to my OIA dated 19 Dec 2017)

In your next statement you are saying that BMAS (Federal Ministry of Labour and social affairs)
are providing general supervision of the german pension scheme and that BVA (German federal insurance institute) supervises the administrative functions of the DRV (German Pension insurance). Both these statements are not correct!
The rolls of both agencies are limited to legal supervision of the DRV. Please refer to the BMAS organisation chart you can download in english from www.bmas.de/EN/Services/Publications/a73.... Under Directorate IV a / Group / Co-ordination unit has the legal supervision of the DRV. Legal supervision makes sure that the DRV is operating within the law. Nothing else! Legal supervision is to exercise supervision by reviewing legality.
The DRV is an independent body corporation with it’s own governing management team!
They make their own decision without any government interference.
Annual payments from the German government to the DRV are for paying benefits, not for pensions. Please note the german pension is not a benefit, it is financed by employee and employer contributions! Therefor it has nothing in common with NZS, which is a pure benefit, administered by the NZ government!
This brings me to the next point where you said that German pensions may be paid to individuals outside of Germany - which is absolutely correct, because this is a pension which is not funded by the German government (employee & employer funded), what I am saying is, the German government is not paying benefits (like the NZS) to individuals overseas!
The German pension, on request, can also be paid out in a lump sum at maturity, which is impossible with NZS, because it is a pure NZ benefit payment!
This shows again that the German pension is completely different to NZS and therefor cannot be subject for deduction under section 70.
I am looking forward to your reply.

Yours sincerely,

Guenter Langenbucher

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From: Guenter Langenbucher

Dear OIA_Requests (MSD),
Ref. to MSD answer to [email address]

Dear Mrs Sefo

I thank you very much for your response to my FYI request.

Firstly, I noted that your answers related to 2 requests I made separately on 19 Dec 2017 and
9 Jan 2018.
Please answer the 19 Dec 2017 separate and give me a statement of reasons under section 23 for this request.

Secondly, to my request dated 19 Jan 2018 you wrote that I should note that legal advice is subject to legal privilege and, if requested, is likely to be withheld……
I would like a statement of reasons under section 23, which articles were researched and on which information you based your decision to deduct my German pension under section 70.

Furthermore I would like a working link where I can find the relevant reports of the SSAA.
The link you provided did not work.

You also wrote “The Ministry is unable to identify the reports to which….. “
I was referring to the 2005 review dd. 24 Nov 2005, Report from MSD CEO Peter Hughes addressed to Minister of Finance (Cullen) and Minister of MSD (Benson Pope)
In my opinion in this report under proposal Option 5, the executives and ministers admit that they know very well, that there is a huge difference between NZS and those overseas pensions which are financed by non government contributions. (employee and employer). They also state that other than administered by the state*, they have little resemblance with the NZS!
*Please note that the German pension is not administered by or on behalf the state!

Next point is, that you did not answer my question - Is the Ministry aware that the German Pension is not paid or administered on behalf of the German government? (Ref also to my OIA dated 19 Dec 2017)

In your next statement you are saying that BMAS (Federal Ministry of Labour and social affairs)
are providing general supervision of the german pension scheme and that BVA (German federal insurance institute) supervises the administrative functions of the DRV (German Pension insurance). Both these statements are not correct!
The rolls of both agencies are limited to legal supervision of the DRV. Please refer to the BMAS organisation chart you can download in english from www.bmas.de/EN/Services/Publications/a73.... Under Directorate IV a / Group / Co-ordination unit has the legal supervision of the DRV. Legal supervision makes sure that the DRV is operating within the law. Nothing else! Legal supervision is to exercise supervision by reviewing legality.
The DRV is an independent body corporation with it’s own governing management team!
They make their own decision without any government interference.
Annual payments from the German government to the DRV are for paying benefits, not for pensions. Please note the german pension is not a benefit, it is financed by employee and employer contributions! Therefor it has nothing in common with NZS, which is a pure benefit, administered by the NZ government!
This brings me to the next point where you said that German pensions may be paid to individuals outside of Germany - which is absolutely correct, because this is a pension which is not funded by the German government (employee & employer funded), what I am saying is, the German government is not paying benefits (like the NZS) to individuals overseas!
The German pension, on request, can also be paid out in a lump sum at maturity, which is impossible with NZS, because it is a pure NZ benefit payment!
This shows again that the German pension is completely different to NZS and therefor cannot be subject for deduction under section 70.
I am looking forward to your reply.

Yours sincerely,

Guenter Langenbucher

Link to this

From: OIA_Requests (MSD)
Ministry of Social Development

Tēnā koe Guenter Langenbucher,

Thank you for your email received 7 February 2018, under the Official Information Act 1982. Your request has been forwarded to the appropriate officials at National Office to respond. You may expect a decision regarding your request to be sent to you as soon as possible.
 
Nā mātou noa, nā

Official and Parliamentary Information team   |  Ministerial and Executive Services
Ministry of Social Development

Our Purpose:
We help New Zealanders to help themselves to be safe, strong and independent
Ko ta mātou he whakamana tangata kia tū haumaru, kia tū kaha, kia tū motuhake

show quoted sections

Link to this

From: OIA_Requests (MSD)
Ministry of Social Development

Tēnā koe Mr Langenbucher,

 

As per your response dated 2 February 2018, the determination that German
pensions meet the criteria for the application of section 70 of the Social
Security Act was based on information available on the German Government's
website. If you were specifically seeking academic articles which were
researched for the purpose of making this determination, I apologise for
the misunderstanding. The determination that German pensions are subject
to section 70 of the Social Security Act did not require the research of
academic articles. As such, this  part of your request is refused under
section 18(e) of the Official Information Act as this information does not
exist.

 

With regards to your request for a statement of reasons under section 23
of the Official Information Act, the Ministry considers that this was
provided by the response dated 2 February 2018, in which you were advised
that as the German Pension scheme, including pensions paid by the Deutsche
Rentenversicherung (DRV), are paid under social security laws enacted by
the German Government to provide financial support where required, and is
therefore considered under New Zealand law to be paid on behalf of the
German government and, as such, is subject to section 70 of the Social
Security Act.

 

I am sorry to hear that the link included did not work. The please try the
following links to the search function of the New Zealand Legal
Information Institute, which includes reports of the Social Security
Appeals Authority (SSAA), and to the report of the SSAA in decisions
[2011] NZSSAA 62:

[1]www.nzlii.org/form/search1.html?mask=nz/cases/NZSSAA

[2]www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZSSAA/2011/62.html?query=deutsche

 

I apologise that the Ministry was not able to identify this report. On
further review, the Ministry has identified the document 'Review of New
Zealand Superannuation - Treatment of Overseas Pensions and Payment
Overseas', dated 24 November 2005, which appears to be the report to which
you refer. This document sets out a number of options for the direct
deduction of overseas pensions. Option five, 'Direct deduction of only
universal flat rate state pensions that are similar to New Zealand
Superannuation' is one of nine options considered. This option is
considered to be administratively difficult, and inequitable in effect, as
this option would specifically advantage recipients of pensions that are
structured differently to New Zealand Superannuation. As per the response
dated 2 February 2018, the German Pension scheme is considered by New
Zealand law to be administered on behalf of the German government.

 

The Ministry considers that your query regarding whether the Ministry is
aware that German pensions are not paid or administered on behalf of the
German Government has been answered. The German Pension scheme is
considered by New Zealand law to be administered on behalf of the German
Government.

 

The status of German pensions as a benefit or otherwise is not relevant to
the application of section 70 of the Social Security Act. As per the
response dated 2 February 2018, section 70 of the Social Security Act
requires that the pension being deducted form part of a programme
providing benefits, pension, or periodic allowances for any of the
contingencies for which benefits, pensions, or periodic allowances are
paid under New Zealand income support legislation. The German Pension
scheme is a statutory pension insurance system which provides, through a
system of compulsory savings, a pension for the event of old age, which is
the contingency provided for by New Zealand Superannuation.

 

Although German pensions operate under different principles to New Zealand
Superannuation, under section 70 of the Social Security Act they are
sufficiently similar in purpose that the Ministry is required to deduct
German pensions from payments of New Zealand Superannuation.

 

The Ministry considers that your Official Information Act request has been
answered and is now closed. If you are not satisfied with this response,
you have the right to seek an investigation and review by the Ombudsman.
Information about how to make a complaint is available at
[3]www.ombudsman.parliament.nz  or 0800 802 602.

 

If you disagree with a decision the Ministry has made regarding your
Superannuation entitlement, you may apply for a formal review of decision
with the Benefits Review Committee. If you disagree with the decision of
the Benefits Review Committee, you may appeal to the Social Security
Appeal Authority. More information regarding the review process is
available on the Work and Income website here:
[4]https://www.workandincome.govt.nz/about-....

 

Nā mātou noa, nā

 

 

Official and Parliamentary Information team   |  Ministerial and
Executive Services

Ministry of Social Development

 

Our Purpose:
We help New Zealanders to help themselves to be safe, strong and
independent
Ko ta mātou he whakamana tangata kia tū haumaru, kia tū kaha, kia tū
motuhake

 

------------------------------- This email and any attachments may contain
information that is confidential and subject to legal privilege. If you
are not the intended recipient, any use, dissemination, distribution or
duplication of this email and attachments is prohibited. If you have
received this email in error please notify the author immediately and
erase all copies of the email and attachments. The Ministry of Social
Development accepts no responsibility for changes made to this message or
attachments after transmission from the Ministry.
-------------------------------

References

Visible links
1. http://www.nzlii.org/form/search1.html?m...
2. http://www.nzlii.org/cgi-bin/sinodisp/nz...
3. http://www.ombudsman.parliament.nz/
4. https://www.workandincome.govt.nz/about-...

Link to this

From: OIA_Requests (MSD)
Ministry of Social Development

Tēnā koe Mr Langenbucher,

 

As per your response dated 2 February 2018, the determination that German
pensions meet the criteria for the application of section 70 of the Social
Security Act was based on information available on the German Government's
website. If you were specifically seeking academic articles which were
researched for the purpose of making this determination, I apologise for
the misunderstanding. The determination that German pensions are subject
to section 70 of the Social Security Act did not require the research of
academic articles. As such, this  part of your request is refused under
section 18(e) of the Official Information Act as this information does not
exist.

 

With regards to your request for a statement of reasons under section 23
of the Official Information Act, the Ministry considers that this was
provided by the response dated 2 February 2018, in which you were advised
that as the German Pension scheme, including pensions paid by the Deutsche
Rentenversicherung (DRV), are paid under social security laws enacted by
the German Government to provide financial support where required, and is
therefore considered under New Zealand law to be paid on behalf of the
German government and, as such, is subject to section 70 of the Social
Security Act.

 

I am sorry to hear that the link included did not work. The please try the
following links to the search function of the New Zealand Legal
Information Institute, which includes reports of the Social Security
Appeals Authority (SSAA), and to the report of the SSAA in decisions
[2011] NZSSAA 62:

[1]www.nzlii.org/form/search1.html?mask=nz/cases/NZSSAA

[2]www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZSSAA/2011/62.html?query=deutsche

 

I apologise that the Ministry was not able to identify this report. On
further review, the Ministry has identified the document 'Review of New
Zealand Superannuation - Treatment of Overseas Pensions and Payment
Overseas', dated 24 November 2005, which appears to be the report to which
you refer. This document sets out a number of options for the direct
deduction of overseas pensions. Option five, 'Direct deduction of only
universal flat rate state pensions that are similar to New Zealand
Superannuation' is one of nine options considered. This option is
considered to be administratively difficult, and inequitable in effect, as
this option would specifically advantage recipients of pensions that are
structured differently to New Zealand Superannuation. As per the response
dated 2 February 2018, the German Pension scheme is considered by New
Zealand law to be administered on behalf of the German government.

 

The Ministry considers that your query regarding whether the Ministry is
aware that German pensions are not paid or administered on behalf of the
German Government has been answered. The German Pension scheme is
considered by New Zealand law to be administered on behalf of the German
Government.

 

The status of German pensions as a benefit or otherwise is not relevant to
the application of section 70 of the Social Security Act. As per the
response dated 2 February 2018, section 70 of the Social Security Act
requires that the pension being deducted form part of a programme
providing benefits, pension, or periodic allowances for any of the
contingencies for which benefits, pensions, or periodic allowances are
paid under New Zealand income support legislation. The German Pension
scheme is a statutory pension insurance system which provides, through a
system of compulsory savings, a pension for the event of old age, which is
the contingency provided for by New Zealand Superannuation.

 

Although German pensions operate under different principles to New Zealand
Superannuation, under section 70 of the Social Security Act they are
sufficiently similar in purpose that the Ministry is required to deduct
German pensions from payments of New Zealand Superannuation.

 

The Ministry considers that your Official Information Act request has been
answered and is now closed. If you are not satisfied with this response,
you have the right to seek an investigation and review by the Ombudsman.
Information about how to make a complaint is available at
[3]www.ombudsman.parliament.nz  or 0800 802 602.

 

If you disagree with a decision the Ministry has made regarding your
Superannuation entitlement, you may apply for a formal review of decision
with the Benefits Review Committee. If you disagree with the decision of
the Benefits Review Committee, you may appeal to the Social Security
Appeal Authority. More information regarding the review process is
available on the Work and Income website here:
[4]https://www.workandincome.govt.nz/about-....

 

Nā mātou noa, nā

 

 

Official and Parliamentary Information team   |  Ministerial and
Executive Services

Ministry of Social Development

 

Our Purpose:
We help New Zealanders to help themselves to be safe, strong and
independent
Ko ta mātou he whakamana tangata kia tū haumaru, kia tū kaha, kia tū
motuhake

 

------------------------------- This email and any attachments may contain
information that is confidential and subject to legal privilege. If you
are not the intended recipient, any use, dissemination, distribution or
duplication of this email and attachments is prohibited. If you have
received this email in error please notify the author immediately and
erase all copies of the email and attachments. The Ministry of Social
Development accepts no responsibility for changes made to this message or
attachments after transmission from the Ministry.
-------------------------------

References

Visible links
1. http://www.nzlii.org/form/search1.html?m...
2. http://www.nzlii.org/cgi-bin/sinodisp/nz...
3. http://www.ombudsman.parliament.nz/
4. https://www.workandincome.govt.nz/about-...

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From: Guenter Langenbucher

Dear OIA_Requests (MSD),
Ref. to MSD answer dd.Feb 8, 2018
 
Dear anonymous,
 
I am very surprised about your response! If your internal legal team made the decision based on information, taken from a German government website, this is very concerning to me.
I am sure, that a professional approach would also include contacting the source of this information (German government ministry), in order to confirm, that the ‘findings and conclusions’ are correct and in line with the legislation!
In my opinion, the MSD’s and SSAA’s legal team’s findings and decisions are seriously flawed (I have given you numerous reasons and provided you with facts in my earlier requests*)!
I would recommend your legal team to study facts, they can find in the following links: https://www.deutsche-rentenversicherung.... and
 https://www.deutsche-rentenversicherung....
These are unfortunately in German but I am sure that you have sources to get them accurately translated.

These articles proof that the German pension is not administered by or on behalf of the German government!

The DRV has to operate within the law like any other company in Germany and companies or entities in New Zealand.
To give you an example: At some point of time the NZ government decided that companies have to pay income tax, that on the other side does not mean, that companies following this law in NZ, are administered by the NZ government! - The same applies to the DRV in Germany!

Since MSD does not understand the difference between “pension”, “benefit” and “social welfare benefit” based on social law, and is calling everything a government pension, I would like to explain the following:
A government pension in Germany which is financed by tax like the NZS, is paid only to civil servants in Germany.
A pension which is based on employee and employer’s contribution will only be paid to individuals who worked and paid these contributions.
Compulsory and contributory pension in Germany is an insurance scheme that covers only those who have made contributions, including invalid’s, disability and widow/widower’s benefit. DRV is the insurer.

This page of the Ministry of Work and Social Affairs explains the social welfare system (Sozialhilfe) in Germany, so you might want to have a look at this:
 
http://www.bmas.de/DE/Themen/Soziale-Sic...
 
„Ein Antrag auf Prüfung ist bei der für die Grundsicherung im Alter und bei Erwerbsminderung zuständigen kommunalen Behörde zu stellen - in der Regel bei dem örtlichen Träger der Sozialhilfe.“
 
This clearly states that social welfare benefits are not paid by the German Pension Insurance but by local authorities.
 
Social welfare (Sozialhilfe) is means-tested while the pension (Rente) isn’t – the latter only depends on the amount of contributions made.
 
https://www.anwalt24.de/gesetze/ag_sgb_x...

As you can see here, the federal states, regional administrations and so called “free cities” are funding social welfare – NOT the German government and NOT the DRV. 
 
By mixing up benefits and pensions, and meddling with the terms, you demonstrate that you either don’t understand the difference or that you do it on purpose in order to justify you breaching the third requirement for deducting an overseas pension from NZ Super.
 
I don’t care if SSAA decisions have found that German pensions can be deducted from NZ Super. They are as wrong as your flawed explanations.

I will contact the ombudsman in due time, requesting an official investigation into this matter.
I also would like to mention, that I think it is an audacity from MSD, to call a letter from DRV “incorrect” and ignoring the letter from BMAS! Both letters confirming that the German pension is not administered by or on behalf of the German government.

In the last paragraph of your response you wrote… If you disagree with the decision the Ministry has made regarding….
If you would be informed about my case, you would know that I had already a hearing with the BRC and that I have appealed with the SSAA!
This is very poor.
 
Looking forward to your reply.
 
Yours sincerely,

Guenter Langenbucher

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Jan McKeogh left an annotation ()

It is apparent that MSD will not wander from mixing up benefits and pensions, and meddling with the terms. It does it on purpose in order to justify breaching the a requirement for deducting an overseas pension from NZ Super. And of course imbedded in this conviction is also the requirement to make spousal deductions.
Until MSD is challenged on the law which its policy makers have set that sees most overseas pensions analogous to NZS, this will not change.
It is a disgraceful state of affairs.

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Alain Bassin left an annotation ()

The 'Sant Raj Rai High Court [2004]' (CIV 2003-485-002615) is a case where Judge Doogue challenged the CEO of MSD and decided in favour of Mr Rai. There are also 2 cases of a serbian render (Rente), (F/M v MSD, Reports of BRC, 16 February 2010) mentioned in the 'Boljevic' case (CIV-2010-485-000206), where the BRC challenged an MSD decision and decided in favour of the appellants. In those 3 cases the BRC and the High Court Judge argued that the render was from a contributory insurance scheme and not from a govt-funded scheme. The criteria of s.70[1](a) were not met.

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