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The Family Carers case – here we go again!

by Rosemary McDonald

Oh, yes indeedy, I would much rather be "out on the harbour" than sitting here in my bus with Peter snoring away behind me, writing yet again about this sorry issue.

Forever the multi- tasker, I have managed to combine this exercise with transfusing our failing deep-cycle batteries with mains power for a night, which also enables me to use this batteryless old laptop to keep anyone interested informed on the latest development in this ongoing saga.

First there was Hill v. IHC and HFA (way back in the mists of 2001), in which the then Complaints Review Tribunal found that the policy of not paying family carers was discriminatory.

IHC was told to go forth and discriminate no more.

Ruth Dyson announced that work was underway to address the issue of paying family carers and develop recommendations that were (she hoped) “fair and consistent across the board.”

It didn’t pan out that way and in 2008 the Atkinson case went to the Human Rights Review Tribunal.  The decision of the Tribunal was released on January 8 2010, finding:

“… practice and/or policy of excluding specified family members from payment for the provision of funded disability support services is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 in that it limits the right to freedom from discrimination, both directly and indirectly, on the grounds of family status, and is not, under s 5 of that Act, a justified limitation. “

The Misery of Health, of course, disagreed with the Decision of the Tribunal and took the issue to both the High Court and the Court of Appeal – losing resoundingly in both venues.

However, we need to back this bus up a wee bit in order to set the scene for the Spencer Case.

When the HRRT released its decision in January 2010 the Misery of Health successfully applied for a Suspension Order under s 92O (2) (d) of the Human Rights Act. Said section of the HRA states:

(d) to provide that any remedy granted has effect only prospectively or only from a date specified by the Tribunal:

In plain language, the order effectively enabled the policy (of not paying family carers) that had been found to be illegal to be legal for 12 months after the expiry of the appeal period or the final determination of an appeal, whichever event occurred sooner.

Conveniently (and of course completely coincidentally), the Appeal Court decision for Atkinson was released on May 14 2012 and the Ministry opted not to take the issue to the Supreme Court.  With a year up their sleeve under the Suspension Order, they had plenty of time to prepare for the May 2013 Budget reveal of the Part4 amendment to the Public Health and Disability Act – and we all remember that steaming little legislative pile.

However, Margaret Spencer (who was not an Atkinson plaintiff but had also made a complaint about the offending policy) took her own case to the High Court. Justice Winkelmann said of the Suspension Order...

In the event that I am wrong, and the Tribunal did have jurisdiction to make the suspension order with the effect that the Ministry’s policy was deemed lawful, I have nevertheless found that the order is so affected by procedural defects that it is a nullity. First, the Tribunal failed to consider all of the factors, listed in s 92P, that it was required to take into account in making an order under s 92O. In particular, it failed to consider the impact of the order on interested third parties. Secondly, given the unusual nature of the order sought, expressed as it was to retrospectively “suspend” the application of a declaration as to human rights, the Tribunal ought to have held a hearing before making the order. This would have enabled examination of the implications of the application for a suspension order, and allowed for the hearing of third party interests. Finally, I have found that the Tribunal was obliged to give reasons for its decision under s 116 of the Human Rights Act or, alternatively, by the principles of natural justice.

The Court of Appeal for Spencer was inclined to agree.

Margaret Spencer won her case, and on the back of that decision (as far as I can work out, because this is all getting very confusing!) other affected persons – ”third parties” – now have leave to take our case to the Court.

Yes, Peter and I are on the list of plaintiffs for this case. We made our first approach to the HRC in 2008 and were assured that the outcome of Atkinson would apply to us.  We have had to sit back and wait as patiently as possible to see if a window would open a crack to allow us and a handful of others to have a shot at justice.

For the record, had the Miserly played fair and accepted the HRRT decision in January 2010 and allowed Peter to use his allocation of Individualised Funding to pay me as his chosen carer we would not be claiming "back pay".  The slight (bearing in mind that as a couple,  my income would have affected Peter’s eligibility for the Supported Living Payment) but welcome increase in our household income would have at least helped us to be in a better position to cope with the debt we found ourselves in at the end of 2010.

We are being represented by the Office of Human Rights Proceedings, who successfully argued on behalf of the Atkinson plaintiffs.

Have no doubt; the Misery of Health and Crown Law are not going to make this easy.  They have already thrown down the gauntlet, and so far they are running true to form.

As we commented the other day to the other plaintiffs, Peter and I sat in on some of the Atkinson and Spencer hearings and participated in the "consultation" workshops run by the Miserly in late 2012, so we have had exposure to the contemptuous attitude of them and Crown Law for disabled New Zealanders and their chosen family carers and we thought we had been inoculated somewhat.  We are going to have to harden up, as having the toxicity aimed at us personally is more than a tad affective.

Having the opportunity to meet some of the other plaintiffs has been a privilege.

We are a diverse group, as diverse as the disability community itself, and yet our stories are almost boringly similar.

Some time ago I threatened to subject the PA community with a post entitled 'NASC: Not working for us, but abandoned the idea as it was just simply too damn depressing.

A new post, 'NASC ... is it working for anybody???' just might be in the pipeline. 

To leak just a dribble of Crown Law’s line of defence in our case: they are very keen to avoid any discussion of the issues all of us have had over the years with our respective NASCs.

Very, very keen.

They criticise the HRRT in Atkinson for stepping outside its scope by suggesting changes to the NASC system of which even Ruth Dyson said way back in 2001 ...

... for many, NASC is the main obstacle to people receiving good services rather than the entry point.

It was in that speech to the Southland IHC Parents Conference in October 2001 that Ruth Dyson noted that the Government’s exemption under s 151 of the Human Rights Act was expiring at the end of that year.  She set up the working group mentioned earlier to look into the issue of paying family carers and she also acknowledged that the Complaints Review Tribunal for Hill had ...

...acknowledged the rights of family members, including parents, to apply to be paid caregivers for one or more of their family.

FFS, that was 16 bloody years ago!

They all knew this was coming...and the best they could come up with was a shitty piece of legislation that the Court of Appeal for Spencer so eloquently described thus:

It contained a number of features that are traditionally regarded as being contrary to sound constitutional law and convention – on the Ministry’s interpretation it has retrospective effect, authorises discriminatory policies, withdraws rights of judicial review and access to the Tribunal and did not go through the normal Parliamentary Select Committee and other processes.

We are the fourth wave of plaintiffs taking this issue to the Tribunal or a Court. I’m thinking of the case as the Final Conflict.

We are not many.

There are six families.

There will be no fiscal apocalypse if we receive the justice we have waited nearly a decade for.

We are also not holding our collective breath.

We know our enemy all too well.

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