Written By: - Date published: 6:27 am, February 8th, 2018 - 66 comments
Categories: capitalism, class war, disability, discrimination, health, poverty, wages, welfare, workers' rights - Tags: Chamberlain v Minister of Health, court of appeal, Diane Moody, ministry of health, neoliberalism, Shane Chamberlain
Disability support is something almost 100% of us will use at one time or another. I wish more currently able-bodied people realised that.
MoH Disability Support service specifications 2015 (PDF) quoted in a recent Court of Appeal ruling,
2. Disability Support Services
[The aim of disability support services] is to build on the vision contained in the New Zealand Disability Strategy of a fully inclusive society. New Zealand will be inclusive when people with impairments can say they live in ‘A society that highly values our lives and continually enhances our full participation.’
With this vision in mind, [disability support services] aims to enhance disabled people’s quality of life and enable their community participation and maximum independence. This is achieved by creating linkages that allow people’s needs to be addressed holistically, in an environment most appropriate to them. The vision of [disability support services] is to ensure “Disabled people and their families are supported to live the lives they choose”.
[Disability support services] seeks to ensure that people with impairments experience autonomy on an equal basis to others. Support options are required to be flexible, responsive and needs based. They must focus on the person and, where relevant, their family, whānau and aiga, and enable people to make informed decisions about their lives.
And yet, Stuff reports on the latest round of court action that disabled people and their carers have had to go through to get adequate support,
The Court of Appeal has ruled in favour of Diane Moody, who is a full-time caregiver for her severely disabled adult son.
A mother caring for her intellectually disabled son is “absolutely ecstatic” after winning an appeal against a government decision to only pay her part-time for her work.
Auckland woman Diane Moody is a full-time caregiver for her 51-year-old son, Shane Chamberlain.
He has a severe intellectual disability, is unable to read or write and can only count to 20 with assistance.
Moody, 76, took the Ministry of Health to court in 2017 over its decision to pay her for 17 hours of work a week, at minimum wage.
Moody, who lives in Beach Haven on the North Shore, argued she worked nearly 10 times that per week.
I’m hoping that those that know more about this case and the background than I do will comment below.
Let me say though that this is a terrible indictment of the country we have become. That the civil service sees it as appropriate to effectively force an elderly woman to take them all the way to the Court of Appeal so that she has enough to live on while caring for her severely disabled son is the result of decades of reforms that have monkey-wrenched the welfare safety net, and have left support systems in such a mess.
It’s almost beyond belief that people within the Ministry of Health could consider such action proper given the situation of the actual humans involved, and it’s hard not to see this as a consequence of the social engineering from the neoliberal revolution that makes otherwise good people do really shitty things and then consider them normal. This is what happens to dependent people when for over 30 years you squeeze the funding out of the services they are dependent upon, and you enculturate the people who are tasked with doling out that funding with values that rationalise the consequences. Thank-you business model replacing social security.
Let’s lay this at the feet of successive governments, and people who stood by and preferred not to watch. Reforms to Health have been going on since the early 90s and here we are: Government vs the People, instead of government for the people.
I’m going to pull some bits out of the ruling, my bold, because here are words that are basically saying we have to start treating people as human again. The government has a responsibility to act fairly.
The appeal requires our determination of the meaning of phrases used in layers of statutory provisions and derivative instruments to identify the relevant disability support services eligible for funding. Palmer J described these documents, with a degree of understatement, as “complex and difficult to follow”. The resultant challenge for impaired persons in understanding the nature and scope of their eligibility is obvious.
The fact that the service cannot be quantified discretely or routinely by use of the Ministry’s unit-based measurement model does not justify its exclusion. A formulaic approach to assessment is inconsistent with the spirit and purpose of the Policy. What is required is a fair estimate of the essential care which Mrs Moody provides and which the Policy is intended to support.
We are satisfied that the NASC providers’ assessment of Shane’s funding eligibility failed to recognise fully the range of services which can be performed by family members. That failure must stem from a misinterpretation of the Policy by the Minister and his agents. Therefore the Minister has erred in law. He has incorrectly interpreted the relevant policy documents and made a decision contrary to the instruments which bind him. For the reasons we have set out the error is serious and warrants judicial review.
 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.
Thank-you to those judges. The challenge is now there for Labour to transform Health back into a sector that is based around the needs of people. And for us to hold them accountable until they do that adequately. Like others I’m not going to be holding my breath on this. The gulf between reality and the government’s own service specifications quoted at the top of this post is huge. But I remain open to being surprised.
A point for left wing people and progressives who have been arguing that the topup issue in a potential NZ UBI could be solved by taking extra income off disabled people and replacing it with services offered by the Ministry of Health. Please make time to take a long hard look at this case. The Ministry of Health has its own deeply entrenched culture and set of massively negatively impactful behaviours. While the particulars vary, they’re not more trustworthy than WINZ, and fixing this is no easier. These are complex systems and even under the best of governments it would take care and time to shift not just the policies but the culture that was developed alongside.
Ultimately, no matter what state of competency or disrepair the system is in, disabled people and their caregivers are entitled to a living wage.
Press release from the Court of Appeal is on scoop.co.nz
Full judgement is here (PDF).
Please also read this post by Rosemary McDonald that looks at the background to disability support services and court action in NZ, including how Labour are also culpable.