Brian Rudman: Crying poor no defence to discrimination of our needy
Health Minister Tony Ryall. Photo / APN
How many more times does the Ministry of Health have to be told its refusal to pay a care allowance to parents looking after adult disabled children is discriminatory?
Since 2001, when a group of parents complained to the Human Rights Commission, the health bureaucrats have battled before three courts to maintain the status quo and lost each time. In 2008 the Human Rights Review Tribunal declared the practice of refusing to pay parent-carers on the same basis as carers from outside the family was a breach of the Human Rights Act. In December 2010, the ministry lost its appeal to the High Court. Obdurately, the ministry marched off to appeal this decision in the Court of Appeal.
The Court of Appeal has upheld the High Court decision, backing the parents' claims of discrimination. Instead of finally admitting defeat and sitting down with parents to map a new non-discriminatory way forward, the ministry - and it seems the minister, Tony Ryall - appear to be considering the option of dragging the issue off to the Supreme Court.
The parents' case, summarised by the Human Rights Commission, is simple. Their adult disabled children have been assessed by the Ministry of Health as requiring support services. These range from feeding, cleaning and toileting, to help to run their home.
But ministry policy says only caregivers who are not family members can be paid to provide these services. Under the Human Rights Act, it is unlawful to discriminate against someone because they are a family member.
The ministry's response has been to combine scare tactics - that the floodgates will open, and family-carer claims will break the bank - with the argument that there is a duty of "natural support" that requires families to care for their own for free.
Mr Ryall's statement after this week's judgment was released echoes this family duty argument, when he says "family carers make a special contribution to the care of people with disabilities in New Zealand". This is very true. But as the Court of Appeal points out, this is not an excuse for discrimination.
The appeal court judges agreed with their High Court colleagues that such a social contract had its limits. They noted that: "The [High] Court accepted that there was a community perception of a parental duty to look after their children up to a certain age, in the sense of providing them, within their means, food, shelter and clothing ...
"However, the court saw it as a different matter altogether to extrapolate from that to a duty owed by parents to care for disabled children for the duration of the life of those children ... no matter how severe the disability. We agree.
"There is no support for the suggestion there is a social contract to care for adult children who are disabled for the remainder of their lives on a full-time basis, subject to respite care."
The appeal judges archly pointed out that such a "contract" would be "inconsistent with the ministry's policy which effectively enables a parent to decline to care for his or her disabled adult child".
Throughout the years of litigation, the Ministry of Health has argued the fiscal cost of paying parent-carers could be $17 million to $593 million a year, but produced no firm evidence about how many disabled persons and their potential carers might come forward as a result of any policy change.
The Appeal judges said that as a result "it is hardly surprising then that both the tribunal and the high court plumped for the low end of the range".
The Office of Human Rights Proceedings put costs at $32 million to $64 million, saying few family members would be willing or able to provide the high level of care required.
The Government has spent $1.4 million in legal costs trying to uphold this discriminatory practice through the courts. The Office of Human Rights Proceedings has dipped deeply into the public purse to fund the parents' battles. It's hard to imagine an appeal to the Supreme Court on some esoteric debate on a point of law will change anything. It doesn't need yet another panel of senior justices to confirm what is glaringly obvious to any fair-minded person. That a group of our most needy fellow citizens are being discriminated against by the ministry that is supposed to be caring for them.
More than 20 years ago, our politicians and health bureaucrats flung open the doors of the awful institutions in which for 100 years we corralled those with severe mental and physical disabilities. The new philosophy was about caring within the community. But it was done on the cheap, with the expectation of free labour from ageing parents. Thanks to the long battle fought by a group of these parents, the rest of us can no longer pretend we don't know about their plight and the policy's shortcomings.
As for the Government, it plucked $1.75 billion out of nowhere to provide compensation for the foolhardy and the greedy who lost money in the collapse of South Canterbury Finance and other finance companies. Against this background, crying poor is not a defence.
Then we get to the fundamental problem of who should be responsible, state or family. In your view, obviously, the state. So what about parenting? Shouldn't mothers at home be paid the same as foster parents? After all, if they refused to look after the kids, the government would have to pay. Same logic. Maybe they should. It might make more sense than the current situation where everyone except married parents seems to be entitled to support.