In early 2022, Ava applied for an early withdrawal from her KiwiSaver account, on the grounds of serious illness, to pay for bariatric surgery.
The supervisor of Ava’s KiwiSaver scheme declined the application. The supervisor concluded that Ava was not eligible for an early withdrawal under serious illness grounds. Ava’s doctor had certified that he believed Ava’s medical conditions posed a serious and imminent risk of death, but there was no evidence to suggest that Ava’s prognosis was shortened to 12 months life expectancy to align with industry guidelines.
The supervisor asked for confirmation that Ava would be at risk of dying within 12 months if she had the recommended surgery. Alternatively, Ava could apply for an early withdrawal on the grounds of significant financial hardship.
Ava did not submit any further medical evidence so the supervisor’s decision to decline the application stood. Ava complained to FSCL about the supervisor’s decision.
Dispute
Ava believed she was eligible for an early withdrawal because there was risk to her life expectancy because of her medical conditions. She believed the definition of serious illness the supervisor used was flawed. The KiwiSaver Act 2006 (the Act) does not say anything about life expectancy being reduced to 12 months or less.
Ava also said other KiwiSaver members had been allowed serious illness withdrawals to pay for bariatric surgery.
Ava had not applied under financial hardship grounds because she believed she would not meet the withdrawal criteria.
The supervisor remained of the view that Ava was not eligible for a serious illness withdrawal. The supervisor takes into account medical procedures that are reasonably available to the member. In Ava’s case, the supervisor understood the bariatric surgery was expected to improve Ava’s medical conditions and restore normal life expectancy.
Review
We found that the supervisor had reasonable grounds to conclude that Ava did not meet the threshold for a serious illness withdrawal.
This threshold is deliberately high. In Ava’s case, her medical conditions had to pose a serious and imminentrisk of death. The Act does not define what a serious and imminent risk of death means, and this has not been determined by the courts.
We concluded that ‘imminent’ suggests that death must be about to happen, or at least very likely to happen soon, in the next 6–12 months. The evidence the supervisor had from Ava and her doctor did not support that death was imminent.
Even if there had been evidence that Ava’s medical conditions posed an imminent risk of death, the bariatric surgery was expected to improve her health. Having the surgery made it even less likely that Ava would face a serious and imminent risk of death.
Ava obtained evidence from her medical practitioners during our investigation. This evidence supported that there would still be risk to her life expectancy if she had the surgery, but this was not sufficient to meet the threshold for a serious illness withdrawal. There must be a grave and critical risk of death.
Outcome
We decided that Ava should discontinue her complaint.
Towards the end of our investigation, separate to her complaint, Ava decided to apply for a financial hardship withdrawal. She hoped the supervisor would approve her application so she could pay for the surgery.
Insights for consumers
We could not uphold Ava’s complaint on the basis supervisors had previously allowed serious illness withdrawals to pay for bariatric surgery. We had to consider Ava’s case based on the circumstances of her withdrawal application.
The general approach taken by KiwiSaver supervisors is that an early withdrawal to pay for non-palliative medical treatment is best considered under financial hardship grounds. KiwiSaver members seeking an early withdrawal from their account to pay for medical costs can contact their KiwiSaver provider to discuss their circumstances before they submit a withdrawal application. The provider should be able to help the member establish what type of early withdrawal, serious illness or financial hardship, they should apply under.
FSCL reviewed the case before industry guidelines about serious illness withdrawals were revised in July 2023. The revised guidelines say imminent risk of death should be understood to mean that death is impending or generally expected to occur within the next 18 months.
