Mum caring for disabled son not a ‘homeworker’
Families upset after Court of Appeal overturns rulings on family carers
Amother who cares for her severely disabled adult son is “bitterly disappointed but not surprised” by a court’s refusal to acknowledge what she does.
The Court of Appeal has released its much-anticipated decision relating to family carers, overturning earlier rulings that a mother who cares for her severely disabled adult child is deemed to be a “homeworker”. It is the fourth time the Court of Appeal has considered the issue of funding of family carers for disabled people.
The decision means Christine Fleming, who cares for her highneeds son, Justin, who has physical and intellectual disabilities, is not entitled to the benefits of an employment relationship as other workers in care homes. Because of this, the court found there was no need to determine backpay or compensation the Auckland woman felt entitled to.
Before 2013 it was the Crown’s policy not to fund the care of disabled adults by family members. In 2013, Funded Family Care (FFC) was introduced, requiring the disabled person to employ a family carer — even if they lacked the mental capacity to be an employer. In 2020, FFC was replaced by Individualised Funding (IF), a fortnightly allowance that allowed a disabled person or their appointed agent to employ their own carers.
Fleming and another parent, Peter Humphreys, argued their children lacked the capacity to enter such an employment agreement and they were instead homeworkers — a person who is by law “engaged, employed or contracted” by another person to do work for them in a dwelling. They argued as homeworkers they were therefore employees of the Ministry of Health.
The Employment Court agreed that Fleming and Humphreys were both homeworkers and therefore employees of the ministry and made declarations to that effect.
In addition, Fleming advanced a personal grievance claim at the Employment Court, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement. The Crown appealed both decisions. Fleming cross-appealed and the findings from that hearing have now been released by the Court of Appeal.
Fleming has cared for her disabled son since birth. She wasn’t aware of the FFC scheme until 2018, but opted to survive on a Work and Income benefit because she argued she
I’m a mum caring for her disabled son to the best of my ability. Christine Fleming, mother and caregiver
would have been financially worse off if she had accepted the Ministry of Health funding.
More recently she’s moved to IF funding. She claimed she hasn’t been funded appropriately since at least October 2013 and was entitled to back pay, compensation and interest.
The Court of Appeal has now found the ministry did not “engage” or form a relationship with her before she lodged her claim with the Employment Court, meaning she can’t be recognised as a homeworker. It found the Employment Court erred in finding she had a personal grievance.
Fleming says the court’s decision, which has taken more than a year to hand down, is a lost opportunity to acknowledge and clarify the muddled mess that paid family care has become. She says it leaves people like her living in the “twilight zone”.
“The current situation is an Emperor’s New Clothes scenario. The person with the disability has the choice and control in their daily life. That’s great for those who have the capacity to do so.
“But for a small section who have high and significant needs, significant intellectual impairments and/or medical complications that are typically cared for by the family, this system is a sham.”
While the court found the ministry didn’t engage with Fleming, it found it did engage with Humphreys under the now-defunct FFC scheme.
In 2014, his daughter, Sian, began receiving FFC. By accepting Sian’s application, the court found her father had become a homeworker of the Ministry. But it said that pathway no longer existed because when FFC was replaced by IF, family carers could be employed by third party providers.
It says because IF was “explicitly a ‘bulk-funding’ scheme”, how the disabled person (or their nominated agent) chose to spend the funding was a matter for them.
Humphreys says the decision has left him scratching his head wondering if he’s now his own boss.
“If I’m suddenly the employer, who do I even talk to about health and safety stuff? And what about grievances? Where do I go for that? It’s like I’m stuck in this limbo without all the rights and protections I had as an employee,” he said.
Fleming asks if I’m not a homeworker, what am I?
“The Employment Court decided my son wasn’t capable of being my employer and I was a homeworker. The Appeal Court has ruled he can be my employer with an agent’s help and I’m not a homeworker. The Ministry of Health says I’m an employee. IRD says I’m a Schedular Contractor. ACC says I’m a home support worker. I say, I’m a mum caring for her disabled son to the best of my ability.”
Fleming’s lawyer, Paul Dale, KC, says they plan to seek leave to appeal to the Supreme Court.