The Supreme Court has ruled two parents who care full-time for their disabled children are, in fact, employees of the government, and should receive the same benefits and protections.

Under the New Zealand Public Health and Disability Act 2000, family members who provided support services could receive payment for their care of their disabled family members.

Christine Fleming, who cares full-time for her disabled son Justin, and Peter Humphreys, who cares full-time for his disabled daughter Sian, had their case heard by the Supreme Court in April.

The decision was released on Tuesday, in favour of recognising both Fleming and Humphreys as ministry employees.

Jurisdiction for disability funding has transferred since court proceedings began from the Ministry of Health, to the Ministry of Social Development.

For carers not to be recognised as employees meant they weren't entitled to things like holiday pay and protection against unfair treatment - and during the April hearing, lawyers said the issue could potentially affect thousands of family carers.

Fleming's and Humphreys' individual cases had initially been won in the Employment Court, but were overturned by the Court of Appeal.

The Court of Appeal ruled Fleming wasn't a homeworker after she turned down the health ministry's offer of funding through a programme called Funded Family Care, which would only have funded her initially for 15.5 hours, and later, 22 hours, for what was actually round-the-clock care for Justin. She decided she was better off on a benefit.

The court ruled separately that Humphreys was classified as a homeworker during the six years he received Funded Family Care, which meant he was technically an employee of Sian - but when the funding scheme was replaced by a new one, called Individualised Funding, in 2020, his status changed and he was no longer considered an employee.

He argued in court nothing had changed for him, or for Sian, and it was unfair that his status as an employee had disappeared.

On Tuesday, the Supreme Court - in reasons laid out by justice Dame Ellen France - has reinstated both Fleming's and Humpheys' employee statuses.

It also ordered costs worth $50,000 to be paid by the Attorney-General to Humphreys, but left the working out of costs for Fleming to the Employment Court.

In making its decision, the court had to consider the definition of "work".

It found: "We consider the appellants are subject to constraints and responsibilities and that what they do is of benefit to the Ministry as their employer. They are working when caring for Justin and Sian, at least for some of that time."

It also had to consider the concept of "engagement" as an employee.

In Humphreys' case, it found he could still be considered "engaged" as a "homeworker" even though he had not been formally selected - that is, he was acting as caregiver without being hired to fill that role by the ministry.

In Fleming's case, the judgment noted that without his mother's care, the government would have had some obligations for Justin's care itself, adding weight to her status as a "homeworker".

While the Supreme Court left the matter of costs for Fleming to the Employment Court, for the purposes of "assist[ing] resolution by the parties" it noted, "it is accepted that Justin needs full-time care for the 24-hour period each day of the week.

"In these circumstances it is difficult to see, on application of the factors in Idea Services, how Ms Fleming would not be working a 40-hour week".

'Over the moon'

Humphreys, who watched the reading of the judgment on Tuesday afternoon via video link, told RNZ he was "over the moon" with the decision.

"It's been a long six years," he said.

"I don't really know where we go from here, other than we've got the same rights as other workers, and that's what we've been trying to do all the way through, really."

"[Family members] do the work the same as other [care] workers," he said.

For him, the fight began when he asked for government support to renovate their bathroom, to make it more accessible for Sian.

"They said there was just minimal support and you will have to be means-tested. My question was, I'm the employee, why should I have to provide a bathroom for my employer?"

The mixed messages continued when they lost the appeal, so to have a definitive answer from the Supreme Court had been a long time coming for the families.

"It feels like closure," Humphreys said.

"Today's decision means a great deal to me and my whānau. The care I provide for my daughter is not only an act of love, but it is also skilled, demanding work that deserves to be recognised and fairly rewarded. This work goes beyond love alone. It involves dedication, knowledge and responsibility that meets the same standards expected in professional care settings," he said in a statement.

The judgment made it clear that when the government relied on family carers it must also respect their rights as workers "with fair pay, proper protections, and dignity", he said.

He described the six-year court process to reach this point as "exhausting, stressful, and often disheartening" with many carers feeling "invisible and undervalued".

"No family should have to endure such a lengthy legal battle just to have their work recognised and respected."

Independent disability advocate Jane Carrigan, on behalf of Fleming, agreed.

"It's seven years, seven months since I filed for Christine in the Employment Court," she told RNZ on Tuesday.

"These issues have really been before the courts for the last two-plus decades. But this is the first time we've ended up in the Supreme Court, so we've finally got a decision the government aren't going to be able to ignore."

She said the decision could affect thousands of families - not just those of family members with disabilities, but aged care, health and mental health carers as well.

She confirmed Fleming would be seeking costs, but couldn't give details yet.

She said considering the Employment Court acknowledged that employment rights were human rights, she was hopeful for a good outcome there.

Ministry declines to comment

The Ministry of Health declined to comment, and Anne Shaw, deputy chief executive of disability support services at the Ministry for Social Development, said they would be carefully considering the court's decision.
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"We would like to reassure the disabled people, their family, whānau and carers that existing care arrangements continue while this consideration takes place."
 
Ref: RNZ
https://www.rnz.co.nz/news/national/581306/full-time-carers-appeal-for-employee-status-upheld-by-supreme-court

​Getting through a natural disaster with a disability
Author:  Kate Green
 ​

For people with disabilities, even daily life can require some workarounds - let alone a natural disaster.

With this in mind, the Wellington Region Emergency Management Office (WREMO) has launched a new emergency preparedness guide developed by, and for, disabled people.

Renee Patete, who's been blind since birth, said most things were easier at home, in the house she'd known for the past 24 years.

"In an emergency, it's important to know where you are, and what you have around you, and who you have around you," she said.

She told RNZ she knew where all the exits were and where to drop during an earthquake to avoid falling objects, and the house was well-stocked with food.

But that was not always the reality - a natural disaster could strike at any time.

"I suppose the best thing to do is to be able to clearly communicate your needs to anyone else," she said. "Having in mind how you're going to quickly and efficiently communicate what you need to strangers is really important."

This, and other advice designed with the input of people with all kinds of disabilities, was included in WREMO's new guide.

Patete, who was an intern in the National Emergency Management Agency's communications team through the Whaikaha/Ministry for Disabled People's summer intern programme, had been a part of the creative process.

She said the result was a practical resource for planning ahead and preparing well for a disaster, "no matter the individual's ability".

"We talk a lot about what everyone should do, or what we should all do," Patete said. "But that doesn't necessarily always apply to everyone."

She explained advice like drop-cover-hold was not very useful for someone in a wheelchair - instead, they might prefer to lock, cover, hold - locking their wheels and curling over.

It was the first step in a wider project responding to long-standing evidence that disabled people face disproportionate impacts in disasters, based on a framework designed at the University of Sydney which emphasised the input of people with disabilities themselves.

It recognised the expertise disabled people already used to manage daily life.

"Centering it on the person is a really big step forward," Patete said. "We talk a lot about the people that help, the other people that can support you and what we need from other people, but actually this guide is about what can you do, what are your strengths, what can you do to solve these problems?"

WREMO's project lead Renee Santos has an invisible disability.

"Controlled well by medication now, but when I started working on this guide, I was really struggling with mobility, so I came in and I was like, 'What can I do to improve outcomes for my community?'"

WREMO's adaptation of the Sydney guide was shaped by groups of disabled people at national, regional and local levels, who were paid for their time like any other contractor.

The work was backed by Whaikaha - Ministry of Disabled People, and the National Emergency Management Agency. They were now developing a national version, including in alternate formats like braille or audio.

Santos said the plan was to create peer-led workshops to go with the guide, and then, she hoped, forums to bring emergency services, emergency management, and disabled people together.
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"I think that's where the real change will come in the system."
 
Ref: RNZ