Court of Appeal: family carers aren’t homeworkers
Last year, the Court of Appeal ruled two parents, Christine Fleming and Peter Humphreys, who each care for their severely disabled adult children, were not homeworkers. Therefore, they weren’t entitled to the same protections of an employment relationship as other workers in care homes.
Because of this, the court found there was no need to determine the backpay or compensation they were claiming.
It’s that decision that’s now being challenged in the Supreme Court.
In their written submissions, Fleming’s lawyers say the heart of the case is whether the Ministry of Health can avoid employment obligations to family carers while relying on them to fulfil the ministry’s legal obligations to care for disabled people.
In April last year, the appeal court ruled Fleming was not a homeworker despite caring for her very high-needs son Justin, who has physical and intellectual disabilities, because she didn’t engage or sign a contract with the ministry.
In 2018, Fleming turned down the ministry’s offer of Funded Family Care (FFC), which allowed a disabled person to employ an eligible family member, arguing she was financially better off receiving a benefit.
This morning, Fleming’s lawyer Paul Dale, KC, told the court the ministry’s Disability Support Services (DSS) vision was to ensure disabled people and their families are supported to live the life they choose.
As a fulltime family carer, Fleming’s work caring for Justin meant she was providing disability support services and therefore met the policy. Her son couldn’t be left alone, yet the ministry refused to pay her for 40 hours of care a week.
Instead, it initially offered to pay her for 15 hours a week, equivalent to just over two hours a day, later increasing that to 22 hours. And that was non-negotiable.
“No one has ever sought to explain how two and a quarter hours a day is workable,” Dale said, describing the Crown’s offer as unlawful and unworkable.
Also, he said there was no doubt Fleming had been caring for her son for years, something the ministry was aware of because it regularly checked on and assessed her work to ensure she was adequately caring for her son.
He said Fleming was more than a volunteer. It was clear someone had to care for Justin and the ministry’s documents reflected that.
During this period, the ministry even paid for respite, but not the care she provided.
“This was an employment relationship, she is doing the work – she was engaged since before 2018 and the Crown has failed in its obligations,” he said.
In most centres around the country, residential care, or even respite care, wasn’t available.
In Fleming’s case, the only respite care was an hour’s drive from her home, which meant two hours of travelling time for three to five hours of respite care.
Humphreys cares for his daughter Sian, who has physical and intellectual disabilities and has been assessed as having very high needs. His case will be heard tomorrow.
No realistic choice but to look after their kids: parents
Lawyer Luke Meys, who is Justin’s and Sian’s court-appointed litigation guardian, told the court their parents felt they had no realistic choice but to look after their disabled adult child all day without cover for breaks or public holidays. There was no sick leave.
Justice Stephen Kós asked if the Crown had an obligation to provide care for these families, why it simply couldn’t pay them directly, rather than imposing an employment relationship on them.
Meys said that without that employment relationship, families would be left to resolve their grievances through judicial review – an expensive and time-consuming process.
Also, a judicial review meant the courts didn’t direct an outcome, it simply referred the case back to the decision maker.
The Crown responds
Sally McKechnie, representing the Attorney-General, told the court it had to consider the question of whether Fleming was engaged as a homeworker if she wasn’t receiving FFC.
She said the court had to consider what was supervision and what was work. While the Crown accepted it had an obligation to pay for disabled people in the community, that wasn’t unfettered, and it didn’t translate to payment for all the hours Fleming spent in her home.
McKechnie said Dale’s submissions had focused on the work that Fleming did, when the funding was based on Justin’s needs, as they were assessed.
She also suggested supervision, which is outside the FFC funding regime, wasn’t a matter for consideration. That drew a response from several judges, who felt that it should be.
McKechnie also rejected a suggestion that FFC was set up to manage fiscal risks. While acknowledging fiscal risks were a consideration, one of the reasons an employment relationship was set up was because some disabled people wanted to be employers and have the dignity of work, rather than being beneficiaries, she said.
Family Carers - two decades of litigation
This case is the latest in a series of challenges by family carers, which began in 2002, who say the system is unfair.
Despite their successes in earlier cases before the Human Rights Review Tribunal, the Employment Court, the High Court and the Court of Appeal many family carers say there’s been little change in the ministry’s policies.
They say after each successful case, the ministry makes small changes but fails to address the substantive issue of low or no pay and poor conditions, which affect all family carers with children who have high or very high needs.
The rub, families say, is that if they ceased to care for their disabled adult children at home, the Government would be forced to step in and pay for residential care, at an estimated cost of $328,000 a year per person.
In contrast, a family carer typically receives the minimum wage of $23.50 an hour, while expected to work more than 40 hours a week.
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.
