Why Do We Send Some of the Poorest Mothers in New Zealand to Jail?

By Catriona MacLennan

Why do we send some of the poorest mothers in New Zealand to jail and, in the process, irrevocably scar their children’s lives?

In our country, some of the wealthiest people pay almost no tax at all. There is little public condemnation of this shirking of their responsibilities, they don’t get sent to jail and, until recently, there have been few efforts to ensure that they actually pay the tax required by law.

That lenient approach is in stark contrast to our vindictive and punitive approach to mothers suspected of receiving benefits to which they are not entitled.

Sole mothers are entitled to benefits when they are not in a “relationship in the nature of marriage.” This is an imprecise concept. There is no watertight legal test, and Work and Income over the years has applied the test for determining relationship status incorrectly.

However, that does not prevent the agency from acting on the basis of anonymous tip-offs to decide that mothers are not entitled to benefits and cancelling their benefits. The department will then establish a debt against the mother and she is required to repay it in full, no matter how scanty her financial resources.

In the most serious cases, Work and Income will lay criminal charges.

Anyone can make an anonymous complaint to the Work and Income tip-off line. My experience is that tip-offs are frequently made by disgruntled ex-partners. Neither the woman nor her lawyer – in the rare cases when she is lucky enough to have one – is entitled to be told who has made the tip-off.

If a mother wants to dispute the cancelling of her benefit and the establishment of a debt against her, she needs to apply for a Benefits Review Committee hearing. No Legal Aid will be granted for this, so she will have to prepare her case and represent herself.

The process is stacked against her from the start, as two out of the three committee members are Work and Income employees. They almost invariably uphold the department’s decision.

The mother can then appeal to the Social Security Appeal Authority – a time-consuming and daunting process.

If the woman is charged with criminal offences, she faces the prospect of a jail sentence if found guilty. Victoria University’s Dr Lisa Marriott, in recent research, has shown the discrepancies between our treatment of beneficiaries and of tax evaders. Over a three year period, tax frauds involving an average of $287,000 carried a 22 per cent chance of jail for the person. By contrast, beneficiaries charged in relation to average amounts of $67,000 had a 60 per cent chance of imprisonment.

Sending mothers to jail separates them from their children and imposes a life sentence on the children. The children start from a position of disadvantage because they come from extremely poor households, one parent is struggling to parent and to support the children financially, and there is frequently violence or abuse.  On top of that, separating the children from their mother destroys attachment and causes life-long problems.

Ironically, the children may end up back in the care of the violent partner from whom the mother fled.

When the mother comes out of jail, she has still not been punished enough. Work and Income will pursue her for the rest of her life for the full amount of the debt, even if she can repay it at only $10 or $20 a week. This takes money out of the family’s already extremely limited budget, and also means that the mother can never improve her financial position. Even if she manages to get work she can combine with her parenting responsibilities, this will not bring more money into the household because Work and Income will simply increase the amount it is taking from her each week in repayment of the debt.

We need to change the law so that we no longer send women convicted of benefit fraud to jail. The main people who are being punished when we do this are the children.

We should also make the welfare of the children the principal consideration when Work and Income determines whether or not a debt should be repaid. We should treat mothers the same way as other offenders and require them to repay only what they can repay within a maximum of five years. The rest of the debt should be written off as there is absolutely no point in a mother being saddled for the rest of her life with a debt of tens of thousands of dollars which she can never in her lifetime repay. 

About the author: Guest blogger, Catriona MacLennan, is one of the authors CPAG's new report: Complexities of 'Relationship' in the Welfare System and the Consequences for Children. Catriona is an expert in family and domestic violence and benefit law. She is a barrister, journalist and social activist.