An update from Phillip Tai MBIE (Ministry of Business, Innovation & Employment)
The Weathertight Homes Resolution Services Amendment Bill 2015 received Royal Assent on 14 Mar 2016. It is now the WHRS Amendment Act 2016 (‘the Act’). The Act clarifies certain aspects of the Weathertight Homes Resolution Services Act 2006. In particular:
- Contribution Criteria for the Financial Assistance Package (FAP) are now placed in the WHRS Act
- The Built Date for WHRS eligibility has been redefined
- Applying for FAP has been simplified.
1. Contribution Criteria for the Financial Assistance Package
When the WHRS Financial Assistance Package (FAP) was introduced in July 2011, the contribution criteria required to be eligible for financial assistance were published in the New Zealand Gazette on 28 July 2011 (see also clause 1 section 125B of the Act). The Gazette is the official newspaper of the Government and is an authoritative journal of constitutional record. The Amendment Act 2016 places these criteria into the WHRS Act to avoid any doubt as to their intended effect. The criteria are the same as when published in the Gazette, and will continue to be applied in the same way.
2. Built date
The 10 year eligibility window for lodging a claim with the WHRS has been redefined.
To be eligible for WHRS, a claim must be made within 10 years of the affected building work being built.
On 10 June 2014, the Supreme Court decided that the 10 year period for lodging a claim should be interpreted similarly to section 393 of the Building Act 2004. This differed to previous interpretation which was based on when the building work was compliant with the building code (often when it passed its final inspection). This decision means that the 10 year eligibility window for WHRS is now from the date the code compliance certificate was issued.
The Act now recognises this new interpretation. For new claims, it means they must be lodged within 10 years of the date of the code compliance certificate. A small number of previous claimants are potentially affected, and the Ministry is contacting them directly to discuss their situation.
3. Applying for FAP has been simplified
The Act redefines how claimants qualify for the Financial Assistance Package (FAP). Beforehand, claimants had to fully satisfy the contribution criteria before they could qualify and then apply for the FAP. The necessary work takes considerable time, and includes obtaining a WHRS assessor’s report, arranging funding, signing a FAP homeowner agreement, commissioning remediation designs, having those designs approved, obtaining building consent, procuring a building contractor, and agreeing a payment plan.
Under section 125D, claimants who qualify and wish to apply for the FAP must issue a Notice to Proceed before 23 July 2016. Given the work described above, this previously meant that some claimants actively working towards applying for the FAP could potentially miss the 23 July deadline. In section 125BA, the Act now states that in order to qualify for the FAP, a claimant must have an eligible claim, and be considered to be taking all reasonable steps towards issuing a Notice to Proceed.
This means that eligible claimants who indicate before 23 July 2016 that they wish to apply for the FAP, and are considered by the Ministry to be actively progressing their FAP activities (doing the work noted above), will be able to continue their progress with the scheme after 23 July 2016.
