A mother is angry her son, who has Down syndrome, isn't able to access his KiwiSaver retirement savings before his likely premature death to fund the dream of a lifetime and visit his brother in Italy.

Tim Fairhall is 39 and by law cannot access his $8000 in KiwiSaver until he turns 65.

The problem is, he is unlikely to live until then. The average age of death for people with his condition in New Zealand is 57.

Tim's mother Joan says his big aim in life is to visit his brother and niece in Italy and travel to Britain where he was born.


"Having to tell your son he's going to die earlier than most people, and he's going to get old earlier, is heartbreaking," Joan says.

Tim, who lives in a trust house in Auckland, has worked two half-days a week at Countdown for 15 years. Joan enrolled him in KiwiSaver 10 years ago, thinking she was helping him save for his retirement, which is going to come sooner than most people as he ages prematurely.

"This is Tim's money, he earned it, he saved it. He saved it with a particular goal in mind. It's important that he has a goal to look forward to. Tim is very hung up on that,' Joan told the Weekend Herald.

"I can also see, as a mother, that by the time he gets to his mid-40s and is needing to retire, that there may very well be things that he will need and things he might want to do.

"It's important that he's got this money that he saved to make his life better, that he should be able to access it to do just that."

KiwiSaver has a number of opt-out clauses but Tim doesn't meet any of them. He is not in financial hardship, he's not buying a house and he isn't going to die imminently.

Joan, Retirement Commissioner Diane Maxwell and his KiwiSaver provider AMP have been over and over the criteria but Tim falls between the cracks.

"The people who dreamed up KiwiSaver ... they didn't think about people who age prematurely and won't reach the age of 65, let alone work beyond their mid-40s," Joan says.

Tim Fairhall, who is 39, will need to retire in his mid-40s but can't access his savings, says his mother, Joan. Photo / Doug Sherring
Tim Fairhall, who is 39, will need to retire in his mid-40s but can't access his savings, says his mother, Joan. Photo / Doug Sherring

She finds it incredibly difficult to talk about her son's mortality but the 73-year-old is determined to fight until he has access to his KiwiSaver money.

She has written to Commerce Minister Kris Faafoi about Tim's plight, and she also plans on taking Tim to make a submission to a select committee considering a bill making changes to tax laws.

Maxwell says she has spoken to Faafoi about Tim's case.

"The question is, what can we do?" Maxwell says.

"As I've gone round all the providers there are varying degrees of appetite to do anything about it. Some say 'this isn't what KiwiSaver is for'. I'm sorry, what is KiwiSaver for then.

"What Tim's asking to do is what anyone else is asking to do and that's have a working lifetime then have time in retirement when you can draw down on your savings and do some things. It's just his timeline is different because he has Down Syndrome."

"This is exactly what KiwiSaver is for."

Maxwell says the solution is principles-based legislation that allows the provider to make decisions on a case-by-case basis so that Tim's can be considered.

Blair Vernon, managing director of AMP, believes KiwiSaver's design never contemplated circumstances like Tim's and the company's hands are tied under current law.

"There is nothing within the framework of KiwiSaver that allows us to grant access to funds. That's strictly controlled by the trustee, not by us," he says.

"I think there needs to be some mechanism for recourse with certain situations that would have to be considered on a case by case basis."

"It's a really difficult situation and we are empathetic to it, as we are with the many, many cases we come across where there are diverse circumstances where individual circumstances don't meet the criteria."

Faafoi was not available for interview but said in a statement that he would be responding to Joan directly , not through the media.

"On the whole, KiwiSaver is, I believe, working well and doing what it was designed to do - that is to help New Zealanders live their best retirement by ensuring they have the financial provisions to do so. This is not to say there aren't changes or improvements that can be made and we continually consider that and receive suggestions," he said.

"The Retirement Commissioner's input is also welcome, and next year the commissioner will have the opportunity to provide that through the three-yearly review of retirement income policies," Faafoi said.