The can gets another kick....
AG for the MOH v Margaret Spencer....Appeal Dismissed!
and the MoH gets another spanking for not understanding how the law applies to them. Just as well their lawyers aren't paid on success.
Actually, one of the lawyers on the 'good' side used to be a lawyer for the MOH.
Oh, the irony.
Again, the judiciary did their job....and applied the Law.
This will go to the Supreme Court, methinks.
more delaying. imagine if they had to pay the costs of that from their own pockets.
Well, well, well.....
Our Friends on the Bench have delivered a full frontal criticism of the Part4A ammendment of the PHDAct.
"It contained a number of features that are traditionally regarded as being contrary to sound constitutional law and convention –"
"The draconian measures introduced in s 70B(2)(c) to remove rights of challenge for breaches of family care policies said nothing about the Atkinson policy and we cannot be expected to strain the statutory text to remove all retrospective rights of claim arising from that policy."
"While both counsel accept that the courts must respect and apply pt 4A, like any other legislation, we agree with them that if
the words have not achieved the result which its promoters intended the courts should not seek to fill the gaps as a means of dealing with inadequate drafting."
"Winkelmann J held that if Parliament had intended to take the unusual step of retrospectively reversing a finding of inconsistency by the Tribunal, it could be expected to do so deliberately and to have used express and unambiguous language."
Sorry for the long post....but this IS Disability History.
and here's a piece which shows how nasty some government departments can be in these cases, by way of e-mail read in court
The likelihood is that Spencer lost the right to a benefit because she became eligible for 29.5 hours at minimum wage weekly under funded family care. There's a certain determination to keep us poor and in our place.
and here’s a piece which shows how nasty some government departments can be in these cases, by way of e-mail read in court
The last sentence in that link is really chilling. There was a Down syndrome girl in my sister’s class at St. Joseph’s Primary, Levin, in the early 1960s. She was one of a number of children of a local businessman and his wife. Perhaps the proximity of what later became the Kimberley Centre affected their decision to raise her in as ‘normal’ a manner as possible.
While I imagine that they received no Government help beyond the then universal child allowance they seem to have been free to do so. Any suggestion of the kind of bureaucratic persecution that Margaret Spencer and her son appear to have endured would have been seen as outrageous back in those supposedly unenlightened times. Yet another ghastly reminder that progress is never automatic. Given the opportunity, the abusive attitudes that might have been assumed to be safely relegated to the past will reassert themselves.
There is a little confusion with the terminology used during this entire process....ramped up more during the Spencer case. I am not sure the source of the confusion...but ...when they talk about 'benefit' they are actually meaning the payment for providing the assessed level of care.
The wage paid to the carer from the funding allocated to the client from MOH:DSS.
Not a benefit from WINZ.
Or the case would have been Spencer v Ministry of Social Development.
Margaret Spencer did have engagements with WINZ...as we all have had ...and some of those engagements were, no doubt, hmm, unhelpful.
This is a very important distinction.
The Powers That Be would have the narrative say this issue is about benefits...it is not, and never has been.
This issue has always been about a client of MOH:DSS not having the right to choose a resident family member as the deliverer of the disability support they have been assessed by the NASC as needing.
and...the person who is proviiding the disability supports that the MOH:DSS client has been assessed as needing should be eligible for payment, regardless of their family status.
Sorry to be pedantic...but these are important times...and it is up to us to keep the narrative real.
P.S. The original Atkinson clients were subject to similar 'abuse' from people in authority during their long and protracted process.
Those of us who have stood firm firm against the Ministry and their contracted providers have also been subject to a level of bullying and criticism.
The price one pays for holding to the original principles.
Thanks Rosemary, it certainly wasn't clear from the article that "benefit" meant support payments from MOH, whose disability support system is predicated on the belief that no-one has entitlement to support.
The implication then becomes that MOH withdrew whatever support was in place to pay other caregivers (not mum) when Spencer was in receipt of Funded Family Care. As if the son's care needs or arrangements had changed when in fact nothing had except that she started to be paid minimum wage for a small proportion of the many hours of skilled care she provides. So the price of a slightly higher family income is even more pressure on Margaret Spencer because it's less likely that she can take time out from unrelenting responsibility.
This sort of thing is the reason it's so difficult to swallow the rhetoric, the nice words in disability and carers plans. If the MOH really had the needs of the disabled person foremost these behaviours would be unthinkable.
This is the other stuff piece that came out last night....a little less mangled...and has Paul Gibson (hero) making the comment...
"said the Court of Appeal's decision was important. "Family carers are still fighting to be paid adequately."
He asked the Government to reconsider its whole approach to paying for care."
The Part 4 ammendment to the PHDAct and the Funded Family Care scheme was the Government's punishment to disabled people and their chosen family carers for having the audacity to demand that a system that was open to ambiguous interpretaion and variable application was sorted out once and for all.
From a Human Rights perspective.
I'm still confused. Apart from getting legal advice, there's no clear way forward. Legal advice for people on low incomes is not simple.
In a nutshell, the Appeal Court is telling the Government that they can't pass legislation to make legal what had been found to be illegal and take away the right of affected parties to complain.
If that was the governments intention...they should have spent more time on formulating the ammendment.
In my words....its a shitty piece of legislation, constructed and passed under Urgency under false pretenses, and it is an insult to those charged with interpreting it.
Its an insult to all of us.
The Appeal Court is telling the Government...in my opinion....you guys got this wrong. Sort this shit out....now.
What is needed here is closer scrutiny of the FACTS...rather than the myths and exaggerated costings the Miserly tendered to the Tribunal back in 2008.
I'm not sure if I have the energy to write another post about this...there is a lot of data to wade through and a shitload of folk who could contribute evidence...but won't...for fear of retribution from the Misery Of Health.
The Disability and Family Carer communities have been well played.
Andrew Geddis strikes again....
"And we're telling you that if you want to stop courts retrospectively upholding the rights of citizens, you must be absolutely crystal clear that this is what you are about.
Oh ... and nyah, nyah, nyah to you for even trying to keep us out (although that last bit may be a bit of editorial intervention on my part)."
Interesting that his previous post on this, back in 2013,
was in AG's own words..." probably the most-read thing I've ever written ..."
Thank you , Mr. Geddis.
Government has decided on fast track process to clear historic abuse claims. There is a big risk here. People want to be taken seriously, be heard and receive a sincere apology from the State. This risks a tick box approach, cash payoff, and a third rate apology and there appears to be no process to deal with distress and triggering.
You beat me to it Hilary.
When I heard that 'happy' news, my immediate thought was..."What nasty tricks are these miserable sods up to this time?"
Then, I told myself...."Don't be silly Rosemary, you're just a cynical, suspicious, untrusting so and so!"
I do hope these people have GOOD advocacy.
Advocates wearing steel toe cap boots, not high heels or business suits.
Rosemary, the police have laid a manslaughter charge for Nathan Booker's death.
Thank you Angela. This young man was known to our family and the circumstances of his death greatly affected us.
And now, an individual held personally accountable.
Here's hoping there is a fair trial, and all the facts and circumstances are thoroughly discussed.
People in our community WILL be valued.
I do hope these people have GOOD advocacy
Lawyer acting on behalf of some told RNZ this plan allocates only about half of what's needed. Typical.
I just rolled my eyeballs out of my head.
Miserable, miserly, contemptuous bastards.
And this, from February....decent 30 minute slot.
The Government does not seem to get it about historic abuse. It has to be a restorative process. The State needs to apologise to the person (who was usually a child or young person) who suffered the abuse when they were in the care of the State. The Minister has just been on Morning Report explaining the new fast track process. They will get some undefined amount of money (likely to be a few thousand dollars) and a letter of apology from the head of the Ministry for Social Development. So not from the State.
And she was vague about whether there will be any access to social services or support for those who are usually experiencing PTSD in some form. Meanwhile the careful and caring process under Judge Henwood which has been underway for the last few years (the Confidential Listening and Assistance Service) is about to close.
So no word about the numerous people who were abused in State care but in special schools or other arms of the State not Social Welfare. Will they get a letter of apology from anyone - or put in the too hard basket?
This is a topic I really care about having talked to so many hurting people. Frustrated that the State won't take responsibility. As one person told me 'The State broke me when I was a teenager and the State has a responsibility to fix me, whatever it takes'.
'The State broke me when I was a teenager and the State has a responsibility to fix me, whatever it takes'.
Funny to see it described like that.
Last night, when re listening to the February Natrad piece, I couldn't help thinking that there could be grounds for these people to make a claim through ACC.
The current ACC Lump Sum payment for permanent impairment....and there is definately grounds to describe the effects as that ...is aound $116,000.
And ongoing support.
And...ACC has an embarrassment of riches at the moment.
there could be grounds for these people to make a claim through ACC
only if they can argue it was an accident
Now this could be a very interesting discussion....this comes to mind...
quite bizarre, but shows the extent of ACC's power to find someone, anyone, responsible.
These people were in the care of employees of the State, and they were undoubtably harmed.
ACC could accept their claims....and ACC could chase up the employer.
I thought ACC's interpretation of their law was that they can only accept claims for mental harm accompanying physical injury?