That case was followed by proceedings issued by Margaret Spencer against the Ministry after it continued to apply its policy. Before her case could be heard, without prior notice, Part 4A of the New Zealand Public Health and Disability Act 2000 was enacted by a Bill that was introduced on Budget Night in 2013 and passed that same evening under urgency through all stages without reference to a Select Committee. Labour, Green Party and New Zealand First all opposed the passing of the Bill and subsequently said that, if elected, they would repeal Part 4A. That has not happened to date. Nor has there been any commitment given to do so.
The Amendment purported to render the policy that had been declared unlawful lawful retrospectively save that the plaintiffs in the Atkinson case were able to continue to seek compensation in their proceedings. It also sought to limit the hearing of Mrs Spencer’s claim to her existing pleading which could not have succeeded given the retrospective validation of the unlawful policy. However, she issued a new proceeding seeking a declaration that her pre-existing rights entitled her to join as a plaintiff in the still extant Atkinson proceeding and thus take the benefit of the saving granted to those plaintiffs. That declaration was upheld by Winkelmann J in the High Court and the Ministry’s appeal was later dismissed [Attorney-General v. Spencer  3 NZLR 449 (CA)]. Mrs Spencer did join the Atkinson proceeding and she later obtained compensation in the High Court.
In the meantime, the Ministry had introduced a new family care policy which did give some entitlement to family members (as defined) to be paid for caring for a disabled adult family member. That scheme was however complex and very limited in its scope and application. It was not well understood and the rate of uptake was a small proportion only of the amount that was appropriated when the new policy was established. The Court of Appeal in Chamberlain (below) recorded that in 2016 payments to external professional care givers totalled just under $150 million as contrasted with $8.8M paid for family care funding. Currently, there are 392 people in New Zealand receiving Funded Family Care remuneration against an original prediction of 1600.
Under the new Funded Family Care policy, rates of remuneration were at the minimum wage rate and were also determined by the Ministry’s assessment of the needs of the disabled person (limited to a maximum of 40 hours per week). The mode of assessment was directed at specific tasks that were identified and then time limited with no allowance for general supervision and oversight of the disabled person’s activities and safety, which meant in practice that the assessment seldom got anywhere near the permitted maximum.
The dissatisfaction that this caused led to proceedings being issued by the elderly mother of a disabled man challenging the 17 hour per week assessment to which the Ministry limited payment for the care and services that she performed for her son. The claim failed in the High Court but an appeal was allowed, the Court of Appeal holding that the assessment “failed to recognise fully the range of services which can be performed by family members” [Chamberlain and Moody v. Minister of Health  NZCA 8].
The Court of Appeal was highly critical of the difficulties faced by “impaired persons in understanding the nature and scope of their eligibility” as a result of the layers of statutory provisions and derivative instruments (and also unwritten practices which Palmer J in the High Court described as being “inherently unsatisfactory in terms of the rule of law”) which comprised the policy. Justice Palmer too had described these documents, with what the Court of Appeal said was “a degree of understatement”, as being “complex and difficult to follow”. That led the Court of Appeal to add a postscript to its Judgment which read:
“…. we have referred to our unease, which is shared by Palmer J, about the complexity of the statutory instruments governing funding eligibility for disability support services. They verge on the impenetrable, especially for a lay person …. We hope that the Ministry is able to find an effective means of streamlining the regime, thereby rendering it accessible for the people who need it most and those who care for them.”
An absurd (to understate the position) feature of the Family Care Policy, as it was introduced after the 2013 enactment of Part 4A, was that moneys paid under it were paid, not to the family care giver (e.g. the parent) but to the disabled person. The latter was required to enter into a contract of employment as employer of the family care giver. The Court of Appeal described this (also with masterly understatement) as “an artificial contractual relationship between a person with disabilities [the employer] and his or her carer [the employee]”. The Court further noted (the obvious) that the Crown accepted that “this statement is a mere fiction which is not subject to the Employment Relations Act 2000, and that many persons with disabilities are so impaired that they do not have the necessary capacity in law to employ another person”. Or, one might add, the capacity to negotiate (with his or her parent or other family member) the terms of a contract of employment (which the Ministry required as a condition of payment under the family care policy).
What has the Ministry done in response to the Court of Appeal’s admonitions?
Two months ago, the Ministry put on line an “Easy Read 2018” information booklet, complete with cartoon sketches. That can be found on https://www.health.govt.nz/system/files/documents/topic_sheets/funded-family-care-booklet-easy-read-jun2018.pdf . Do read it so that you get the full flavour and experience a sense of incredulity.
The Easy Read document is no doubt called that because the readers who it is directed to are the disabled (many, if not most, of whom are intellectually disabled or, to use the Court of Appeal’s term impaired) who are to become the employers. As the information booklet says: “When you get Funded Family Care you become an employer of the person or people you have chosen to care for you.” This is then explained in an easy read way: “The law says you must make and sign an employment agreement with your family or whanau carers. An employment agreement has the rules of the job you are employing your carer for”.
Hmm… What are those rules of the job? No problem, the booklet says. Just go to the “Employment Agreement Builder” on the following website: https://eab.business.govt.nz/employmentagreementbuilder/startscreen/ This document is headed “Employment agreements made easy”. No need then for a lawyer. It explains:
“This tool helps you create tailored employment agreements for your staff [for which read your mother or father or other family member]. Employment agreements are a legal requirement – and a great foundation for an employment relationship [in the fantasy world of fiction]. It covers what you must do by law, and also sets out common mistakes made by employers and how to avoid them. It takes about 30 minutes to complete.”
Then follows over 50 or 60 pages employment terms that require to be addressed under headings of mandatory, recommended and optional. They include hours and days of work including shifts and rosters, trial periods (during which the employer can dismiss the employee), rest periods and meal breaks, overtime, compulsory contributions by the employer to the employee’s KiwiSaver scheme, bonuses “for meeting particular targets or completing certain tasks” (but no identification of KPIs), provision of a parking space or compensation in lieu, skill payments, training and study leave, annual holiday and public holiday entitlements, sick leave, Health and Safety Act responsibilities, restrictions on internet and social media use (not to be offensive, illegal or must follow the employer’s policies) and – particularly relevant here – leave that must be given “when an employee becomes a parent or a care giver” and not below “the legal minimum” (not explained). And one essential and mandatory term, provision for resolving employee grievances including mediation and other external assistance (trade union, lawyer or Employment Relations Authority).
So have the concerns expressed by both the High Court and the Court of Appeal in Chamberlain as to the impenetrable nature of the Funded Care Policy to its clientele – those who need care and those who provide it with love and commitment – been addressed by the Easy Read documentation now produced by the Ministry of Health? Easy to read? Yes, certainly - for a lawyer. Comprehensible? Certainly not for a disabled person. And not for a lawyer either. As was conceded by the Crown itself in the Court of Appeal, a contract of employment between the disabled person as employer and the family care giver (usually a parent) as employee is a fiction. How does any person, disabled or not, one might ask, negotiate the terms of a fiction and against the backdrop of a Government policy that has its own severe limitations on what can permissibly be negotiated in any event?
We have gone from what was merely unlawful and a breach of human rights (in Atkinson) to what was found to be an impermissible attempt by retrospective legislation to block the enforcement of human rights (Spencer) to obstructing access to what is already a grossly imperfect funded family care scheme by creating a fictional and impossible legal relationship between the carer and the disabled person in need of care and pretending that, as now presented in “easy read” documents, it is (in the Court of Appeal’s words) compliance by the Ministry of Health with the Court’s direction to “streamline” the regime in order to render the policy “accessible for the people who need it most and those who care for them” (post-Chamberlain).
Fact is indeed stranger than fiction.
Jim Farmer QC
8 August 2018