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Labour to repeal ban on family caregivers seeking justice

Written By: - Date published: 8:20 am, July 8th, 2019 - 39 comments
Categories: Iain Lees-Galloway, john key, labour, law, law and "order", national, national/act government, same old national - Tags:

Labour and New Zealand First Ministers under the first term of the sixth Labour government sitting in the Cabinet office.

One of the most constitutionally outrageous things the John Key National Government did was in response to a Court of Appeal decision in Health v Atkinson which upheld a finding that to not pay caregivers who were also family members of individuals suffering from a disability discriminated against them because of their family status and was in breach of section 19 of the New Zealand Bill of Rights Act. 

How did Key’s Government respond?  Andrew Geddis has the details in this post where he said he thought the Government had just broken the constitution but essentially National chose to:

  • pass legislation with retrospective effect under urgency
  • without select committee overview
  • which had a regulatory impact statement that had large amounts of it excised
  • containing a clause limiting the ability of a claimant to pursue a claim before the courts that they had been discriminated against 
  • proceeded with the Bill even though the Attorney General concluded the limitation could not be justified.  Key thought it was fine.

Geddis’ conclusion was pretty brutal:

By passing this law, Parliament is telling the judicial branch that it is not allowed to look at a Government policy (not, note, an Act of Parliament) in order to decide whether it is in breach of another piece of legislation enacted by Parliament (the New Zealand Bill of Rights Act 1990). In other words, the judiciary’s primary function – to declare the meaning of law and its application in particular cases – has been nullified.

Keith Ng’s analysis was even more brutal and contained lots of swearing:

… they’re doing something which was against the Human Rights Act before, and is still against the Human Rights Act after, but just made sure the people on the receiving end can’t have their legal rights recognised or enforced.

It’s saying, sure, the Government’s doing something illegal to you, but it’s okay, because we just made a law to say there’s nothing you can do about it. Lolz!

Well, it’s not okay. It’s not okay that human rights promised by law are not honoured because it costs money. It’s not okay that due processes promised by the Bill of Rights doesn’t apply because the Government says it doesn’t apply. It’s not okay that advice about how Parliament is about to piss all over the rule of law (at least I assume that’s what the legal advice says, because we can’t see it) is denied to Parliament. It’s not okay that saying “Budget, Budget, Budget” means that the Government can bypass all the checks and balances of Parliament itself and just put itself above the law overnight.

NOT. FUCKING. OKAY. 

The details of the change were announced yesterday.  From Derek Cheng at the Herald:

Family carers are welcoming a Government announcement to pay partners and spouses who look after ill family members up to $25.50 an hour.

The Government will also extend Funded Family Care to those caring for children under 18 and will repeal part 4A of the Public Health and Disability Act, which bans families from challenging the policy on grounds of discrimination.

It will also change the employment relationship so the person being cared for is not the employer – though exactly how this will be managed is still to be worked out.

Prime Minister Jacinda Ardern announced the changes after hosting disabled family members at Premier House today with Associate Health Minister Julie Anne Genter, who said the 4A clause was “incredibly offensive”.

The changes were flagged in an announcement last September, and will come into effect next year once legislation has gone through a select committee process.

It is good to see that the payments will approximate a living wage.  There is some angst about the assessment process being used but there is increased budget and clearly a desire on the part of the Government to make the policy work.

I am not aware of any response to the announcement by the National Party. 

39 comments on “Labour to repeal ban on family caregivers seeking justice ”

  1. Dukeofurl 1

    Will it shut up those naysayers about Wellbeing Budget ?

    • Chris T 1.1

      Doubt it as it has nothing to do with the budget

      It is just the current govt actually following through with something they promised pre-election, which lets face it, is a rarity

      • Dukeofurl 1.1.1

        Governments cant spend money unless its authorised , almost entirely in budget. pro tip.thats what Budgets do.

        So yes it has to do with budget, but from the story nationals legislation needed to be repealed.

        And of course , its spreading out the announcements , both before and after ,which all governments do

      • woodart 1.1.2

        bollocks christy, its about doing the correct thing. if you got off the computer and had to look after a family member as well as you look after your share portfolio, you would be disgusted by what the key gov did, quite shameful….

    • Rosemary McDonald 1.2

      Probably not.

      Open mike 08/07/2019

      Keep up Dukeofurl, it's not just about us.

    • Chris 1.3

      Why should it? This simply neutralises a situation that should never have arisen in the first place. It's also politically inexpensive. Right-wing Labour supporters aren't going to die in a ditch over whether the disabled get shafted.

      • Michael 1.3.1

        Agreed. As always with "Labour", the devil will be in the details, including the repeal of Part 4A. Previous action by "Labour" governments demonstrate that we cannot celebrate anything until we check the fine print. If that rains on "Labour's" parade, so be it.

  2. Ad 2

    With a pretty mild National Party in parliament, this would be a good time to have a run at entrenching the Bill of Rights Act through parliament with a 75% majority so that the kind of anti-BORA outrage perpetrated by National can't happen again.

    That would bind future parliaments on both sides, for good.

    All these near-meaningless BORA impact statements on proposed legislation need actual teeth.

    • Rosemary McDonald 2.1

      You think?

      It would be great, to have a Constitution…and this issue and the single digit salute National and Co gave to the Courts over paying family carers was one of the key drivers of the Palmer and Butler project.

      http://archive.constitutionaotearoa.org.nz/chapter-1/

      So, incredible as it may sound, it would be legally possible for our Parliament to repeal the Constitution Act 1986 or the New Zealand Bill of Rights Act 1990 in a single sitting day of the House under urgency, without any public input.

      This is not scaremongering; actions like it have happened. For example, in 2013 Parliament enacted the New Zealand Public Health and Disability Amendment Act in a single sitting day. Its principal effects were first to prevent anyone ever making a complaint to the Human Rights Commission or bringing a court proceeding against any Government family carer policy no matter how discriminatory, and second, to exclude retrospectively the provision of remedies for past discrimination. It followed a decision of the Court of Appeal that had upheld the human rights of some of the most vulnerable people in our community—the disabled and family members who cared for them. There was no warning that the Bill was to be introduced; there was no public consultation on it; there was no Select Committee consideration of it. By any measure, it was a shocking piece of legislation that ousted well-known constitutional protections and removed New Zealand citizens’ rights to be free from discrimination in certain cases. Yet it passed in a single sitting day despite almost immediate public outcry. Only another Act of Parliament can alter or remove it. That is how fragile our constitutional system currently is.

      • Ad 2.1.1

        Plenty of bills on basic human rights get riders and then sail on through – particularly under the last government.

        It would take spending a monumental amount of political capital in parliament to do it, and would need Labour in a stronger parliamentary position that it's currently in.

        Maybe they could get BORA entrenchment on the agenda for next term.

  3. mosa 3

    " I am not aware of any response to the announcement by the National Party "

    Mickey
    Woodhouse said last night it would clog up the court system.

  4. Rosemary McDonald 4

    There is some angst about the assessment process being used…slightly more than angst Micky Savage as I outlined on Open Mike this morning. I'll just copy and paste what the Appeal Court judges had to say last year.

    Postscript[90]

    We make two additional points. First, we note that this is the third occasion on which a dispute between the Ministry of Health and parents who care for disabled adult children has reached this Court. We hope that in the future parties to disputes over the nature and extent of funding eligibility are able to settle their differences without litigation.

    Second, 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, and have not been revised or updated to take into account the significant change brought about by pt 4A. 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.

    Peter and I have had experience with many NASC assessments and the last, in 2016 produced a whopping 44 A4 pages of guff. There was a doctor, a registered nurse, an occupational therapist and a physiotherapist all a our house putting us on a hot griddle and making us jump through hoops and insisting at peering at Peter's arse in case I had allowed a pressure sore to develop. The 44 A4 pages produced a number of hours care over three days. This was reduced by the NASC by 25% upon 'peer review'. These people don't operate by the normal rules. Malice or ignorance?

    …but there is increased budget and clearly a desire on the part of the Government to make the policy work.

    8 million dollars per year to pay an extra 640 carers as well as increasing the hourly pay of the existing 400 Funded Family Carers is going to go absolutely nowhere.

    Much more detail is needed, especially the source of the 640 figure.

    • Ad 4.1

      Rosemary it would be great to see you do a post just on what you think would stop this litigation madness, address the really clear concerns of the Appeal Court, and make the engagement with the deliberately obscure bureaucratic mechanisms more helpful and practical to your life.

      You appear to have very strong lived experience of this.

      • Michael 4.1.1

        Put a stop to the bullshit contracts regime – they are opaque and unable to be contested by people when "needs assessments" conducted under these arrangements result in a grossly unfair outcome. I strongly suspect this will be the one element of the current system that will never change.

  5. tc 5

    Hey where’s the usual apologists…..particularly legal eagle Wayne.

  6. Enough is Enough 6

    "Labour to repeal ban on family caregivers seeking justice"

    Sorry to sound a little bit like Winston, but this is a government initiative, not simpley Labour. The Greens have been front and centre of this (particularly JAG).

    • Sacha 6.1

      And it even goes back further, as Genter acknowledged: https://twitter.com/JulieAnneGenter/status/1147706195538432001

    • Rosemary McDonald 6.2

      The Greens have been front and centre of this…particularly JAG, yes, but we must not forget the absolutely sterling work done by Catherine Delahunty.

      And looking back to the National/Maori/Act party days…I recall no one from Labour being shameless enough to actually support paying family carers. They did a Pontius Pilate in 2007 and sent it to the HRRT and the Courts to decide. Even though they had had NACEW prepare a report on the issue…and guess what?

      There is scope within a framework like this to employ and pay family carers as part of the formal package of care. This occurs already in ACC and is common in countries where budget or direct payment approaches give consumers a greater choice over the specifics of care they receive. Providing an option to employ family carers to perform substantive caring tasks is fairer and more efficient than having a separate stream of support for family carers.

      Under what circumstances should the government provide financial support to such carers – e.g. short-time versus long-term caring situations; where a person has had to reduce or give up their paid employment to assume their caring responsibilities; or whether or not a paid, formal carer is available to support the family? The payment would be made for explicit roles required within customised client care plans. Family carers could have other paid employment. The only requirement for a family member to receive payment for care work would be that they provide the designated services. The arrangement is most likely to occur when the care need is long-term and predictable, as in the case of a person with tetraplegia, or short-term and intensive, such as the care of someone who is terminally ill.

      https://women.govt.nz/sites/public_files/NACEW-Financial-support-for-family-carers-2008.pdf

      • Sacha 6.2.1

        This occurs already in ACC

        A really important part of this whole issue – somehow one state funder of disability support services has been able to manage this for years while the other has put enormous effort into resisting it. Now where's the accountability for that use of scarce resources?

        • Rosemary McDonald 6.2.1.1

          Indeedy. In the 2008 HRRT hearing the Misery of Health made much ado about the risks of having family as paid carers.(They had no concerns however of risk from unpaid family carers.)

          To hand, the Office of Human Rights Proceedings had a witness who could speak with some authority on how ACC found having family provided funded care to its clients. http://www.nzlii.org/nz/cases/NZHRRT/2010/1.html

          ….there is legislative provision which allows the ACC to employ relatives including parents and spouses to undertake their care at home, on a non contractual basis. We were advised that more than half of the ACC’s home support services were provided in this way. However, although both the defendant and the plaintiffs made repeated reference to this distinction, only one witness was called (by the plaintiffs) specifically to refer to the care of some persons with disability resulting from injury; no expert witness was called by the defence on this matter.

          [96] The experience of involving family members in the care at home of those disabled through an accident has recently been reviewed by the corporation, as revealed by several internal documents. Some focus groups they set up and reporting in 2007, sought feed back from some ACC staff, comparing the outcomes in the use of contracted and non-contracted (family members and informal carers) in home care. It was reported that “Participants unanimously agreed that there is no discernable difference in quality and rehabilitation outcomes between these two approaches to purchasing home support services.

          Some years ago I stumbled across a draft report from Treasury on 'Meeting the future cost of care…' or similar.

          If my memory serves it did suggest that an ACC type system could be achieved for non ACC foobarred for a simple and IMHO moderate levy or tax increase specifically ringfenced for funding care. Buggered if I can find the document again.

          • KJT 6.2.1.1.1

            About time the original, and effective, ACC model was applied to sickness, disability and unemployment.

            A good use for the unnecessary reserves National stole, from levies and claimants, ' to fatten it up for sale.

  7. Rosemary, thanks for your anger, advocacy and explanations about all this over the years. This announcement is a victory but not the solution. What we really need is an alignment of the Ministry of Health, ACC and the Ministry of Social Development into one fair, inclusive and rights-based system of disability and income support. It's what Woodhouse anticipated back in the 1960s but has never been fully implemented. Sir Geoffrey Palmer has a plan how it could work.

    • Rosemary McDonald 7.1

      Thank you Hilary, and of all the people in this community you'd understand best how a fair and rights based system of disability supports should be constructed. To be perfectly honest I'm not entirely convinced there is even a victory to celebrate, yet. Again, the numbers simply don't stack up. If they repeal the Part 4 amendment in full it will amount to a reset to 15th May 2013. If the ugly and vindictive piece of work that is the Funded Family Care Policy is consigned to a footnote in your next paper on NZ Disability History all the better.

      I remember you once writing (I think it was in a thread about ORS funding and learning support?) that we should claim entitlement. To learning supports for all children. ( To funding for personal cares. To access to equipment.)

      What most people won't understand is that for non ACC disabled there is no entitlement. Go into a classroom of children needing a high level of support and play 'spot the ACC funded kid'. Go to a wheelchair sporting event and play 'spot the non-ACC player.' Go to the Warehouse or Pak n Save and watch while the ACC funded guy gets out of his nice swank tank while the non ACC folk inch their way out of a mobility taxi… if they're lucky to be able to afford one on the measly SLP. And while some ACC funded spinal impaired have been known to dig into their well stocked cupboards of ACC funded supplies and flick their poorer cousins the odd handful of disposable gloves…it is more than a bit humiliating and shouldn't be necessary in a fair and equitable society.

      And I really think that is the problem. Non ACC disabled do not have the sense of entitlement necessary to make our voices strident enough. We ask. Maybe we should demand.

      • Hilary Stace 7.1.1

        I can't remember writing that but I think it is important that we talk about entitlements and not eligibility. For all types of support, not just disability.

  8. Ken 8

    Righting another wrong.

  9. I can't remember writing that but I think it is important that we talk about entitlements and not eligibility. For all types of support, not just disability.

  10. greywarshark 10

    This sounds sort of nice.

    To practice five things under all circumstances constitutes perfect virtue;
    these five are gravity, generosity of soul, sincerity, earnestness, and kindness. Confucius
    Read more at: https://www.brainyquote.com/quotes/confucius_118794

  11. Jackel 11

    This is an enlightened decision by the Labour led coalition and is to be commended. It is a defining difference between them and the way the gnats handled the issue. The kind of sickness in the way the gnats dealt with this is exactly the kind of thing this country needs to move away from.

    I note the gnats are being very careful in how they swallow this so-called dead rat.

  12. The Chairman 12

    There is some angst about the assessment process being used…

    Yes, there is. And from my understanding addressing the assessment process is key to carers being well paid. Therefore, the question quickly becomes what are Labour/the Government going to do about this vital point (improving the assessment process)?

  13. george.com 13

    can someone shed some light or an enlightened opinion on the following.

    In my simple mind I thought the solution to parents caring for adult disabled children would be to introduce a targeted welfare payment to the parents to acknowledge the extra costs and stresses involved in their caring. Exactly how much is reasonable and warranted I wouldn't be sure but off the top of my head thought of $200 per week. Seems simpler than going to a payment, minimum wage, employment system.

    • Rosemary McDonald 13.1

      Ho hum. I'll give it a go.

      Nah, can't be bothered. Read this… http://www.nzlii.org/nz/cases/NZHRRT/2010/1.html

      Seriously, still the best description of the situation contained in the one, easy-read document.

    • The Chairman 13.2

      A targeted welfare payment would be far easier to administer and far easier on the recipients. However, $200 a week would be nowhere near enough. A thousand a week would be more in the right ball park.

      • Drowsy M. Kram 13.2.1

        $1000/wk isn't raising hopes and expectations nearly enough – $2500/wk at least!

        • Rosemary McDonald 13.2.1.1

          $1000/wk isn't raising hopes and expectations nearly enough – $2500/wk at least!

          I wouldn't panic just yet DMK, it would appear that the Gummint has cocked up the maths. The $8 mill per year allocated might be enough to pay the extra 640 family carers for about 10hours per week…max. About $200 before tax

          Still roflmaonui.

          SSDD.

      • Rosemary McDonald 13.2.2

        A targeted welfare payment would be far easier to administer and far easier on the recipients.

        Easier for the bureaucrats most definitely, but it would not address the issue.

        NACEW nailed it back in 2008.

        There is scope within a framework like this to employ and pay family carers as part of the formal package of care. This occurs already in ACC and is common in countries where budget or direct payment approaches give consumers a greater choice over the specifics of care they receive. Providing an option to employ family carers to perform substantive caring tasks is fairer and more efficient than having a separate stream of support for family carers.

        Under what circumstances should the government provide financial support to such carers – e.g. short-time versus long-term caring situations; where a person has had to reduce or give up their paid employment to assume their caring responsibilities; or whether or not a paid, formal carer is available to support the family? The payment would be made for explicit roles required within customised client care plans. Family carers could have other paid employment. The only requirement for a family member to receive payment for care work would be that they provide the designated services.

        Quite simple really. And fair. And equitable. AND provides the dignity of paid work.

        Ironically, one of the members of NACEW who researched and wrote that report in 2008 was also one of the Crown Lawyers who fought tooth and nail (and rather dirtily to boot) against the exact same rights for family carers.

  14. The Chairman 14

    The payment would be made for explicit roles required within customised client care plans.

    My understanding, Rosemary is the issue not being addressed (see link below) is the complex assessment process identifying those explicit roles within the customised client care plans. A set targeted welfare payment would overcome this issue.

    https://www.rnz.co.nz/national/programmes/morningreport/audio/2018703096/disability-care-funding-changes-give-false-hope-family-carers

    • Rosemary McDonald 14.1

      Already there is a welfare payment for carers and it is a pittance. However is it most certainly possible that a family carer can be paid this benefit while other outside paid carers come to the home and provide some or all of those 'explicit roles'. The family carer receives the benefit as recognition that there are other support responsibilities on top of the tasks that attract the funding.

      In the case of family carers being paid under Funded Family Care (the National midwifed scheme so hated from it's conception in 2013 by just about everyone other than the sociopaths at the Misery of Health who birthed it) it is also possible that the FF Carer can be paid for some of the explicit roles and outside paid staff paid for other explicit roles. I would imagine that there could be a benefit top up if the income from the FFC hours was below the level benefit.

      The National/Maori/Act party wankers allocated $24 million per year to fund 1600 paid family carers under FFC.

      Owing to the punitive and inflexible assessment process based on the 'we'll teach you greedy bastard family carers for taking us to Court' attitude from the Misery of Health and its agencies the NASCs many family carers, even though providing a high level of hands on care and 24/7 oversight were allocated hours so low that would not make it worth their while going off the benefit.

      Funded Family Care was a scheme tailored to fail. $24 million per year to pay up to 1600 parent carers for up to 40 hours per week at the minimum wage…plus, those being paid for 40 hours per week at the minimum wage are expressly forbidden to do any further paid work. They are locked into a minimum wage existence…despite families supporting someone with a disability feature large in the deprivation indexes.

      Funded Family Care allowed for 1600 paid parent carers…only 400 have taken up the payments….and not all of those are being paid for 40 hours per week. What happened to the unused $18 million per year allocated to this abortion of a scheme is any one's guess.

      Yes the needs assessment process is invasive and dehumanising but it is a necessary evil. Intelligent people should be able to devise an assessment process that does not leave the subjects feeling like they have just done a week in the trenches under constant sniper fire.

      Intelligent people should know that allocating 3 minutes per day for assisting someone to use the toilet is the kind of shit arseholes dream up.

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