(File photo.) Photo: 123RF
The Court of Appeal has ruled that hundreds of parents who get government funding to care for their disabled adult children are not employed by the Ministry of Health.
The ruling overturned a previous decision by the Employment Court in December 2021 that Christine Fleming and Peter Humphreys - who have each been funded to care for their severely disabled children since 2013 - were employees of the Ministry, not their children.
Under the current Individualised Funding model, the disabled person - or their appointed agent - employs their own carers.
The Employment Court found that for some "employers" with severe intellectual disabilities, this was clearly not practicable, and carers were being paid to do the work for which the Government would have been responsible.
That ruling would have made the government (the Ministry for Disabled People Whaikaha) liable for all the responsibilities of an employer, including paying family carers' wages, ACC and tax, and potentially compensating them for being constantly on call.
Whaikaha estimated that up to 2500 people receiving support may not have capacity to manage an employment relationship.
In a written decision, the Court of Appeal Justices French, Brown and Courtney found Fleming was not "a homeworker" as defined by the Employment Relations Act when she cared for her son, Justin Coote, who has Williams Syndrome and required 24-hour supervision and care.
That was because there was no point which she could said to have been "engaged" or signed a contract.
Fleming had opted not to accept Funded Family Care, as she was only offered 22 hours of work at minimum wage for her son's care, which was less than her current benefit.
The Court of Appeal judges also found the Employment Court was wrong to find Fleming had a personal grievance but upheld its finding that she was not entitled to backpay and compensation because of the family care policy in the Public Health and Disability Act.
In the case of Humphreys, the Court found he was employed by the Ministry when he cared for his daughter, Sian Humphreys, under the previous Funded Family Care regime - but not under the new Individualised Funding, which came into effect in September 2020.
Sian Humphreys has the genetic disorder Angelman syndrome - which causes severe intellectual and physical disabilities - and needs round-the-clock care.
In the case of both Humphreys and Fleming, the Court of Appeal disagreed with the Employment Court that the "well-established test for what constitutes work" in the earlier Idea Services case applied to them.
That judgment found workers required to do sleepovers in care homes were entitled to minimum wage for those hours.
However, the Court of Appeal said it did not necessarily follow that family carers should be remunerated for overnight hours in their own homes.
"In the position of Ms Fleming and Mr Humphreys are not subject to any active control or oversight and not constrained by the Crown's terms and conditions as regards what they did outside normal working hours. Further, many steps taken by a family carer might equally be viewed as being taken in their capacity as guardian or homeowner."
