Source: Radio New Zealand
Peter Humphreys (left) with his daughter Sian, and Christine Fleming (right) with her son Justin Coote. NZ Herald / Sylvie Whinray
The Supreme Court has ruled two parents who care full-time for their disabled children are, in fact, employees of the government, and should receive the same benefits and protections.
Under the New Zealand Public Health and Disability Act 2000, family members who provided support services could receive payment for their care of their disabled family members.
Christine Fleming, who cares full-time for her disabled son Justin, and Peter Humphreys, who cares full-time for his disabled daughter Sian, had their case heard by the Supreme Court in April.
The decision has been released today, in favour of recognising both Fleming and Humphreys as ministry employees.
Jurisdiction for disability funding has transferred since court proceedings began from the Ministry of Health, to the Ministry of Social Development.
For carers not to be recognised as employees meant they weren’t entitled to things like holiday pay and protection against unfair treatment – and during the April hearing, lawyers said the issue could potentially affect thousands of family carers.
Fleming’s and Humphreys’ individual cases had initially been won in the Employment Court, but were overturned by the Court of Appeal.
The Court of Appeal ruled Fleming wasn’t a homeworker after she turned down the health ministry’s offer of funding through a programme called Funded Family Care, which would only have funded her initially for 15.5 hours, and later, 22 hours, for what was actually round-the-clock care for Justin. She decided she was better off on a benefit.
The court ruled separately that Humphreys was classified as a homeworker during the six years he received Funded Family Care, which meant he was technically an employee of Sian – but when the funding scheme was replaced by a new one, called Individualised Funding, in 2020, his status changed and he was no longer considered an employee.
He argued in court nothing had changed for him, or for Sian, and it was unfair that his status as an employee had disappeared.
Today, the Supreme Court – in reasons laid out by justice Dame Ellen France – has reinstated both Fleming’s and Humpheys’ employee statuses.
It also ordered costs worth $50,000 to be paid by the Attorney-General to Humphreys, but left the working out of costs for Fleming to the Employment Court.
In making its decision, the court had to consider the definition of “work”.
It found: “We consider the appellants are subject to constraints and responsibilities and that what they do is of benefit to the Ministry as their employer. They are working when caring for Justin and Sian, at least for some of that time.”
It also had to consider the concept of “engagement” as an employee.
In Humphreys’ case, it found he could still be considered “engaged” as a “homeworker” even though he had not been formally selected – that is, he was acting as caregiver without being hired to fill that role by the ministry.
In Fleming’s case, the judgment noted that without his mother’s care, the government would have had some obligations for Justin’s care itself, adding weight to her status as a “homeworker”.
While the Supreme Court left the matter of costs for Fleming to the Employment Court, for the purposes of “assist[ing] resolution by the parties” it noted “it is accepted that Justin needs full-time care for the 24-hour period each day of the week.
“In these circumstances it is difficult to see, on application of the factors in Idea Services, how Ms Fleming would not be “working” a 40-hour week.”
The Ministry of Health declined to comment, and Anne Shaw, deputy chief executive of disability support services at the Ministry for Social Development, said they would be carefully considering the court’s decision.
“We would like to reassure the disabled people, their family, whānau and carers that existing care arrangements continue while this consideration takes place.”
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
