Ministry of Health loses appeal after refusing to pay carer

Margaret Spencer with her son Paul, as they arrive at the High Court. Photo / Brett Phibbs

The Ministry of Health has been unsuccessful in its appeal against a ruling that found it acted unlawfully in refusing to consider paying a mother for caring for her Down Syndrome son.

Margaret Spencer, has looked after her son Paul, 46, for the past 25 years. Paul has suffered from Down Syndrome since birth, and is unable to care for himself.

Ms Spencer began fighting for caregiver payments more than a decade ago.

In 2012 the Court of Appeal upheld a Human Rights Review Tribunal finding that excluding payments to carers of disabled family members was discriminatory and in breach of human rights.

The claim was brought forward by a group of parents, known as the Atkinson plaintiffs, who had cared for their disabled children without financial assistance for many years.

After the court's ruling, Ms Spencer applied to the Ministry of Health for caregiver funding, however, the ministry refused to consider her application because it had earlier sought an order suspending the tribunal's finding.

It also opposed her application to be joined as a plaintiff in the Atkinson plaintiffs' proceedings before the tribunal.

Ms Spencer sought a judicial review of that decision in June 2013.

In a written judgment released in October 2013, chief High Court judge Justice Helen Winkelmann found in Ms Spencer's favour, and said the ministry acted unlawfully and in breach of Ms Spencer's rights by refusing to consider her application for funding.

The ministry has since appealed against this High Court decision, challenging Justice Winkelmann's findings, and remedies granted by the High Court.

In a written judgment released by Court of Appeal judge Justice Rhys Harrison yesterday, the ministry's appeal was dismissed.

"It follows that, in common with Winkelmann J, we are satisfied that the ministry acted unlawfully in July 2012 when declining Mrs Spencer's renewed application for a disability support benefit.

"The appeal is dismissed."

Justice Harrison ordered that the Ministry of Health pay costs separately to both Ms Spencer and the Human Rights Review Tribunal, with usual and reasonable disbursements.

One of Ms Spencer's lawyers, Suzanne Robertson said when she spoke to Ms Spencer yesterday, her client was thrilled with the result.

"She said she thought it was a fantastic result," Ms Robertson said. " She called it a triumph of law over politics."

Ms Robertson said Ms Spencer told her it was "wonderful" the court upheld her and Paul's human rights.

"She believes the government sign up to international treaties saying they will support human rights but have been denying hers," Ms Robertson said.