This is a subject which needs way more space and words than I can offer. But I thought I should make a few comments about a campaign for justice that has been going on for too long and which needs to be resolved.
I hope the Government acts quickly to finalise is the long standing case involving families wanting to be paid for the extended care they provide for their disabled children.
The legal principle is quite simple but very compelling. Why should the state pay strangers to look after kids with disabilities but not family members who are doing the same work? Isn’t that discrimination on the grounds of family status? Isn’t that discriminating against parents who are completely dedicated to the needs of their children?
Litigation concerning the claim has taken a long time to resolve. It originated in the Human Rights Commission, then went to the High Court and the Court of Appeal. A disgraceful attempt by National to stymie the claim failed and the matter has continued to be litigated. It is now at the crazy stage where health ministry Bureaucrats are making strange assumptions about how long it should take to wipe your kid’s bum.
Andrew Geddis, who deserves a knighthood (unless he is a republican) for his contribution to public discussion of New Zealand jurisprudence, has followed the various cases for many years.
And in his own gentle way he has castigated the last Government for its mean fisted constitutionally offensive attempts to deal with the issue.
Spare me as I am going to have to rely heavily on his elegant summary of the situation.
It started here:
So in 2010, some family caregivers went off to the Human Rights Tribunal and challenged the MoH’s policies on the grounds that these discriminated against them on the basis of their family status; which in turn breaches their rights under the New Zealand Bill of Rights Act, 1990. They won, but the Government appealed the matter to first the High Court, and then the Court of Appeal … where the family members won again. And so, finally, the Government caved and recognised it was going to have to come up with some policy that would deal with the problem.
So far so good. Clearly paying strangers but not family members for providing care for their kids with disabilities discriminated against family members on the basis of their status. You would think that National, supposedly a family supportive party, would agree.
But no. Instead of working out a deal with the families National decided to severely limit the ability of family members from receiving what they could otherwise legitimately expect.
As announced in the budget, that policy takes two forms. First, the Government passed legislation that gives a statutory underpinning to the “family care policy” setting out who will (and who won’t) be paid. This statutory underpinning is in section 70C, and will say:
[When the law kicks in], neither the Crown nor a DHB may pay a person for any support services that are, whether before, on, or after that commencement, provided to a family member of the person unless the payment is permitted by an applicable family care policy …
With this statutory provision in place, the Government will work out with DHBs over time just who will be eligible to be paid (and how much) under the family care policy. At the moment, it looks like only those relatives caring for persons aged 18 or more will be … and spouses looking after each other won’t be. Furthermore, the payment rate looks to be at the level of the minimum wage, which is less than externally contracted carers would get.
So, it’s a policy with a lot of gaps in it (caring for your kids or your spouse still is unpaid labour), and even those family members whom it covers don’t get the same pay rate as strangers coming in to care for their loved ones.
Attorney General Chris Finlayson thought it breached the Bill of Rights. He released a rather rambling opinion which talked about the need for the Government to manage its finances and implying that discrimination was acceptable if the Government was going to meet financial imperatives. Finlayson eventually concluded that the provision was discriminatory which it clearly was. In fact it institutionalized the discrimination. I wonder why it took Finlayson so long to conclude this.
Geddis’s conclusion that he thought National had just broken the constitution seems very appropriate. Thankfully it did not stop the families who are still fighting for justice.
This background article by Kirsty Johnston in the Herald is a must read. After reading it if you still think there is nothing wrong with what is happening there is something wrong with you.
From the article:
Families fighting a 20-year battle to be paid for caring for their disabled loved ones are calling for the government to repeal the law protecting a “discriminatory” care policy.
Legislation enabling the policy, which excludes spouses and parents with younger children from payment, and limits family carers to the minimum wage, was rushed through under urgency by former Health Minister Tony Ryall in 2013.
Outrage ensued not only at the policy, but at the part of the legislation that barred legal challenges by saying families could not take discrimination claims against it to court.
In its pre-election manifesto, Labour said it would repeal the legislation – Part 4A of the NZ Public Health and Disability Act 2000 – and that it would ensure all family caregivers could “provide and be paid for assessed care for their disabled adult family member”.
However, those subject to the policy are fearful that promise may have been forgotten.
Seven families, known as the King plaintiffs, are taking a High Court compensation case against the Government and say even if they are paid for past wrongs, that won’t fix present-day problems.
“It’s not about the money any more,” said tetraplegic Peter Ray, whose wife Rosemary McDonald cares for him unpaid because of a ban on paying spouses. “The system is broken, and that needs to be brought out in the open.”
Geddis has again written about the subject and this gave him a chance to review what had happened in Parliament in 2013. From his article:
Surely now the government would create a new policy that paid family carers on the same basis as non-family carers. Anything else would be discriminatory, and thus unlawful.
But that is not what happened. Instead, in 2013 the government did something the Court of Appeal subsequently described as “traditionally regarded as being contrary to sound constitutional law and convention”. That statement represents a triumph of judicial understatement.
For, in but a single day, the government introduced into Parliament and had enacted into law Part 4A of the Public Health and Disabilities Act. This law effectively permitted it to pay family carers something, but then stopped them from going back before the courts to complain if the government did so in a discriminatory fashion.
Note this legislation did not expressly say that the government could pay family carers in a discriminatory way. Had it done so, the government would have faced immediate political criticism for its decision to treat these ordinary Kiwis in that way.
Instead, the government was able to portray the law as generously giving payments to family carers. It was only later, when the actual details of those payments became apparent, that it became clear how discriminatory they were.
Only certain family members could get paid for their caring work. And they would be paid the bare minimum wage, a far lower rate than non-family carers.
But as the legislation now stopped family carers from returning to the courts to challenge the new policy, the government effectively was able to ignore the law prohibiting it from acting in a discriminatory way. A legal right not to be discriminated against is worth very little if you have no way to enforce it.
And if your feelings of disgust have not already peaked then this recent Radio New Zealand article about the treatment of one of the claimants will surely achieve this. From Catherine Hutton at Radio New Zealand:
Diane Moody, who’s 76, has cared for her severely disabled son Shane Chamberlain for most of his 51 years.
Mrs Moody rejected an offer to pay her for 17 hours a week at the minimum wage and took the Ministry of Health to court, seeking the maximum of 40 hours a week.
Last month, the Court of Appeal ordered health officials reassess her application.
In the revised offer, her paid hours would be 37 a week.
But Mrs Moody said the needs assessment on which the offer is based is flawed, and she will continue to fight for 40 paid hours a week because she cares for her son full-time.
Please MOH. Stop haggling. Just agree to the 40 hours. And backdate it.
There are other problems. As a cost saving measure the person suffering from the disability has to be the employer of their caregiver. Good luck with the HR and tax implications of that. And National not only put in place a discriminatory policy but the roll out did not reach even National’s modest goals. Again from Hutton’s article:
When it was introduced in October 2013, the government estimated the scheme would cost $172 million a year, with 1600 people eligible to receive it. No new money was allocated to run it. Yet in November 2015, just 225 people were receiving Funded Family Care. Only 63 of the 215 were receiving the full 40 hours a week of funding.
It is time for National’s odious law to be repealed and a just and fair resolution reached with the family caregivers. Nothing else would be right. David Clark has asked for options for reforming. He should make this a priority.