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Justice for the family carer claimants

Written By: - Date published: 8:43 am, March 8th, 2018 - 28 comments
Categories: david clark, discrimination, national, same old national, you couldn't make this shit up - Tags:

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.

And not only were they going to stop it but they decided to smash the law change through Parliament under urgency.  Without the slightest hint of a select committee process.  Again from Geddis:

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.

28 comments on “Justice for the family carer claimants ”

  1. Antoine 1

    Well you guys are in! Just do it!!

    A.

    • BM 1.1

      Agreed, Christ, it’s like they don’t realise they’re the fucking government.

      • mickysavage 1.1.1

        Years of inept leadership and constitutional outrages and you guys expect Labour to solve all the problems instantly.

        What do you think about the outrageous legislation that took away the rights of family carers to not be discriminated against?

        • Antoine 1.1.1.1

          That is bad legislation!

          A.

        • BM 1.1.1.2

          I haven’t been following it as I’m not or know anyone who’s affected by this legislation.

          But the fact remains you guys are in government, you’ve got the power to change this if you don’t like it or don’t consider it fair.

          David Clark has asked for options for reforming. He should make this a priority.

          To me that reads like Labours can kicking and in no hurry to change the legislation, why do you think that is MS?

          • You_Fool 1.1.1.2.1

            It sounds to me as though the Lab/NZF govt (with Green support) has inherited a shit-can of a system which is going to take a non-negligible amount of time, money and effort to fix and as such some prioritisation needs to take place.

            It sounds to me that MS disagrees with the priority given on this particular issue.

            It also sounds to me as though the particular legislation needs to be repealed before any solutions can be enacted legally, and if it is going to be taken away then it is best to have something to replace it, as before there was the current status there was a void in which no one knew what could be done.

            Maybe if the NAct government didn’t try to screw over ordinary NZers for the sake of a few pennies then we wouldn’t be in this position….

    • adam 1.2

      And when the Tories roll back into to town they will repeal it. That a good way to get things done.

      Just another example of why the right need to take a good long hard look at themselves. When your elected to government your to look after all the people – even those who voted against you.

      Not play king of the castle.

      And people wonder why I say the right has no morals. Simple stupid stuff like this.

      • Antoine 1.2.1

        Id actually be surprised if the next Nat govt rolled this one back. Why bother?

        A.

        • Molly 1.2.1.1

          “Why bother?”
          1. Because they don’t actually care about people who can’t provide them with a profit.
          2. They have the revenge impulse of toddlers.
          3. A large proportion of them have a viscious streak that is not tempered by humanity.

          • Antoine 1.2.1.1.1

            It doesn’t seem to me like the sort of thing you repeal. There’s no votes in repealing it, no ideology I can see and very little money. The idea of a revenge motive is just silly.

            A.

            • You_Fool 1.2.1.1.1.1

              They will repeal it because it will cost money, and that is money not going to them or their mates so it is bad* money…

              *in the mind of a RWNJ

            • mickysavage 1.2.1.1.1.2

              It is an appalling constitutional outrage. Isn’t that a good reason to repeal it?

          • patricia bremner 1.2.1.1.2

            But the previous Labour Government procrastinated and passed bad law as well. Rosemary has put up that information many times. The last National Government made things worse.
            At least this Minister is taking advice from all submitters.
            Of course there needs to be degrees of care, but full time care should be 7 times 16 hours at day rates plus 8 x7 at night rates for a completely reliant person/child through to 8 hours a day for assistance and supervisory care.

            It is not rocket science, and yes that would be greater than a normal wage for some, but those carers need to be able to pay for cleaning gardening and hiring special equipment or vehicles for transport to and from Drs/ Hospitals/Day care for carer respite.

            It is not a normal life. Having worked for 3 years in the field, I can say they are always under stress, and many marriages break up, leaving one doing everything. I so admire them. I so want them paid fairly for what they do.

            Strangers try to be kind, but every change of helper is a trauma on top of difficulties. So family are often best. IMO.

  2. adam 2

    Thanks for the post Mickey.

    I can’t see a solution for this, except maybe ripping out and firing all the bureaucrats in the health system. Then starting again.

    The removal of the obtuse, and nasty in officaldome might just be the break this needs.

    Odious laws aside, a real problem is the ministry of health bureaucrats, who have no or very little medical training, making medical decisions.

    Time to have a clean out.

  3. Rosemary McDonald 3

    Kirsty Johnston has produced a wonderful piece of work…the only reporter Peter and I would trust with our story.

    I am using an incredibly unstable internet connection so I will be brief.

    1. patricia bremner is correct…Labour dicked around this issue since late 2001…Ruth Dyson acknowledging in a speech that with the Gummint’s exemption from having to comply with NZBORA and the HRA expiring in early 2002 they had better be some work done on Government’s discriminatory practices toot sweet…and the family carers issue was the case in point she referred to.

    2002.

    The Longest Fight indeed.

    I see no hint that this government is going to give us justice…or more importantly ensure that the MOH disability support system is fit for purpose, safe, and respectful.

    2. Labour promised in their 2017 manifesto they would repealed the Part 4A amendment to the PHDAct. They need to get a move on.

    Also…they really, really need, in order to gain a little bit of credibility and integrity , to order the Ministry of Health to reveal the redacted sections of the Regulatory Impact Statement…this shiny little turd…http://www.treasury.govt.nz/publications/informationreleases/ris/pdfs/ris-moh-fcc-may13.pdf….right now. Please.

    We did ask the Minister for Open Government…Claire Curran…and she seems to think she can’t tell the Ministry of Health to do anything…tail wags dog.

    Ho hum.

    SSDD.

  4. Rosemary McDonald 4

    Also…the Ministry of Health is the most dysfunctional of government agencies and their Disability Support Services sets new standards on how not to provide supports for the nation’s most vulnerable.

    The very LAST thing that Clark…or any other elected official should do over this issue is consult with the Ministry of Health.

    Ryall ended up looking like a total tool after consulting with the MOH over this….

    • mickysavage 4.1

      When I read health had counteroffered 37 hours instead of offering 40 to that poor woman I did not know whether to laugh or cry.

      • greywarshark 4.1.1

        Cripes take the money and run i would say. Why dither over 3 hours. Who can win against tight-arse bureaucracts with management degrees etc. They have to go by the book, which says ‘Never give a sucker an even break’.

        • mickysavage 4.1.1.1

          The offer was so petty. And the marginal cost of the negotiation is really excessive.

          • greywarshark 4.1.1.1.1

            True, but then in reverse an onlooker might say if they dismiss 37 hours because they want 40, they apparently don’t need the money at all, and are just trying to gouge out every penny they can. So neither side comes out of this situation with a good look.

            • Rosemary McDonald 4.1.1.1.1.1

              One of the parties in this particular bun fight greywarshark had to make a stand on principle.

              The Ministry of Health Disability Support Services have no principles…so Ms. Moody had to step up.

              • greywarshark

                I’m talking about being practical where there is less and less for all except the better off in this country and even the world. Why fret about a few percentages. Fairness is relative. Give yourselves a break and enjoy it when you get a decent offer I suggest, unless you are all becoming masochistic in which case you can only be happy while you are unhappy. Which sounds a sorry state to be in.

                Just to recap in 2016 in NZ –
                40% of the people had 3% of the wealth in the country.
                50% of the people had 47% of the wealth.
                10% of the people had 50% of the wealth.

                https://www.radionz.co.nz/news/national/307458/10-percent-richest-kiwis-own-60-percent-of-nz%27s-wealth

                https://www.stats.govt.nz/news/new-zealands-net-wealth-passes-1-5-trillion

                Google –
                New Zealand’s household wealth on the rise, but inequality high | Stuff .
                https://www.stuff.co.nz/…/new-zealands-household-wealth-on-the-rise-but-inequality-hi…
                Nov 28, 2017 – The annual report analysing global wealth shows New Zealand adult wealth grew by 11.4 per cent in the year to March 2017, and total household wealth by … But New Zealand’s wealth inequality is almost four times that of Australia; 18 per cent of New Zealanders have a net worth below US$10,000, …

                • Rosemary McDonald

                  “Give yourselves a break and enjoy it when you get a decent offer I suggest, unless you are all becoming masochistic in which case you can only be happy when you are unhappy.”

                  My initial reaction to this statement greywarshark was “WTF???”

                  Upon reflection, and after some thought, my question to you regarding that statement is what exactly do you mean???

                  Assuming you are relatively ignorant and uninformed about disability issues in general and the protracted argument about the payment of family carers in particular, might I suggest that you invest some time in researching the topic. Especially before accusing those of us making a much needed stand against the malignant Ministry of Health Disability Support Services of being masochistic.

                  I suggest you begin by seeing where families who experience long term disability sit in the deprivation indexes…if putting issues into an economic context is where you are comfortable.

                  • greywarshark

                    I suggest that when disabled get something owed to them and get treated fairly then get on and enjoy it. This originally started when I said why not accept payment for 37 hours and not hold out for 40?

  5. The Fairy Godmother 5

    There seems to be a long standing universally accepted value that the only work that counts is work that is paid. Marilyn Waring had some really good work on this. This means caring work we do for others outside our families is valued. What we do for our own family is not. This happens with the care of children as well where the state pays big money to childcare companies to care for their children where it could be better utilisled in some cases by families caring for children at home

  6. Delia 6

    This whole business has been so hurtful to my family who have a disabled member, I cannot even discuss it. I am so disgusted and Andrew Little should sort it out properly. Both Labour and National ensured families were not paid for caring for family members. The process is so demeaning and complicated most of us avoid it. I hope the miserable Labour party reads this, because they were no better under Clark.

  7. Venezia 7

    I agree with Adam & Rosemary. A total clean out of bureaucrats in the Ministry of Health would be a good start. And consulting with the expertise of Andrew Geddis, other Constitutional law experts, The Child Poverty Action Group, as well as the family carers of disabled people is the least they can do.

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