Mum and caregiver to fight ministers in court
Government ministers are today being challenged in court by the mother of a disabled man over the way family carers are treated.
Christine Fleming, who has cared for her son Justin Fleming for nearly 40 years, is taking the case against the Minister of Health Andrew Little and Minister for Disability Issues Carmel Sepuloni before a full bench in the Employment Court.
Fleming, from Auckland, is being represented by Paul Dale QC. It is the latest challenge by parents of disabled children to have their care recognised by the Government and be adequately paid for it.
If she is successful, it could have significant ramifications for carers’ funding — not only in the disability sector but other areas like foster care.
The Government agreed in 2018 to change the way it pays families who care for disabled relatives.
But disability advocate Jane Carrigan, who filed the papers in the Employment Court, said no progress had been made and she wanted to force the Government’s hand.
At the heart of the employment case is whether Christine Fleming is employed by her son, Justin, or the Ministry of Health.
Carrigan, who filed the papers to the court, said they wanted a declaration that Fleming was providing disability support services and that the ministry was her employer. They would then argue that the ministry had failed in its obligations as an employer. “The work Christine does is employment. Everything she does, if she wasn’t there, somebody else would be paid to do it. So I am saying she is being exploited by the Government because they know if they don’t pay these people they’re going to provide the service anyway.”
Justin, 39, has Williams Syndrome, a development disorder, and requires full-time care. Fleming makes all of his meals (he has celiac disease), showers and toilets him, brushes his teeth, and cleans up after him. She has done so since he was born.
Under the existing Family Funded Care system, she must be an employee of Justin to get funding from the Ministry of Health.
Dana Cocks, Justin’s sister, said that was an “outrageous” requirement. “We’re not trying to take anything away from him. But the ministry needs to be real about it. These kids, some of them can’t speak, they have no idea.
“If Mum has an issue with her employer, she would have to have an argument with Justin about it — and he would not have a clue,” she said.
Fleming’s funding was close to the minimum wage and was reassessed every six months — despite no changes in Justin’s permanent condition. “She doesn’t want to be paid for 24/7, that’s not what it’s about,” Cocks said. “But if they gave it to somebody else, or Justin got dropped off somewhere, someone would be being paid to do it — and paid a lot more.”
The hearing is set down for five days, and will include submissions from the Council of Trade Unions and the Human Rights Commission.