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Determination of ineligibility for publicly funded healthcare was wrong

Ombudsmen Act 1975
Related legislation:
New Zealand Public Health and Disability Act 2000
Minister of Health
Peter Boshier
Case number(s):
Issue date:


Complaint about a determination by the Ministry of Health that a person was ineligible for publicly funded healthcare as they did not meet the time criteria prescribed in the Health and Disability Services Direction 2011 – the Ministry took a generic approach to calculating the ‘two-year’ time criteria and omitted to include the last day of the person’s work visa in its calculation – Ombudsman found that the way the Ministry calculated the time criteria was wrong, that the person had met the time criteria using a numeric day count and was therefore eligible for publicly funded healthcare.

Ombudsman recommended that the Ministry apologise to the complainant, facilitate a refund and take steps to prevent a recurrence. In addition, Ombudsman recommended the Ministry publish a statement on its website inviting any similarly affected parties to come forward.


The complainant arrived in New Zealand on 1 March 2016 on a student visa. They were then granted a ‘job search’ visa and subsequently held a work visa valid until the end of February 2018. In late 2017, the complainant received medical treatment at a hospital and was charged (around $23,000) by the District Health Board (DHB).[1]

Eligibility for publicly funded healthcare is determined by the Health and Disability Services Direction 2011 (the Direction), which is made under section 32 of the New Zealand Public Health and Disability Act 2000.

The complainant applied to the Ministry of Health for a determination as to whether they were eligible for publicly funded healthcare. The Ministry considered the application under clause B5(b)(ii) of the Direction which states that a person is eligible to receive services funded under the Act if the person is the holder of a work visa and is entitled to work in New Zealand for a specified period of time that, together with the period of time the person has already been lawfully in New Zealand immediately before obtaining the work visa, ‘equals or exceeds two years’.

The Ministry determined that the complainant was not eligible as they did not meet the time criteria of ‘equal to or exceeding two years’. The Ministry calculated the complainant’s time in New Zealand for the purposes of their eligibility under the Direction to be to one year and 364 days.

The Ministry’s position was that the complainant was not entitled to work for the full two-year period as defined in the Direction. It stated that because the complainant’s visa started on 1 March 2016, the two-year requirement would require them to have a right to be working in New Zealand until 1 March 2018 – the date two years later.

It also excluded the final date of the complainant’s work visa from its calculation because they would have had to leave New Zealand on that day because that is when the work visa expired.


The Ombudsman formed the opinion that the Ministry’s determination that the complainant was not eligible for publicly funded healthcare was wrong, because of the way it calculated the time criteria required by clause B5(b)(ii) of the Direction. The Ombudsman recommended that the Ministry:

  1. apologise to the complainant for its incorrect determination of their eligibility and the impact of this decision on them;
  2. work with the DHB to:
    1. facilitate a lump sum refund of the money already paid in respect of the relevant treatment. [2]
      This was on the basis that, if the Ministry had correctly calculated the time criteria at the time of their application, the complainant would have been eligible for publicly funded healthcare and would not have incurred the debt; and
    2. ensure any remaining debt owed in respect of the relevant treatment was cancelled.
  3. adopt a numeric interpretation of what constitutes a ‘year’, and include the final day of an applicant’s work visa in all future eligibility cases considered under the Direction;
  4. update its website guidance, and its guidance to DHBs and practitioners who are required to apply the Direction;
  5. publish a statement on its website inviting similarly affected parties to have their eligibility determination reconsidered, where relevant.

The Ministry accepted the Ombudsman’s opinion and recommendations. The Ministry implemented the recommendations, in conjunction with Health NZ.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.


[1] District Health Boards were replaced by Te Whatu Ora – Health New Zealand on 1 July 2022. Return to text

[2] Approximately $15,000. Return to text

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