Ministry’s fiction likely to be matter of money
THE reason for this Employment Court case sounds like one of those farcical situations, satirising the institutions of the day, concocted by W.S. Gilbert for the Savoy operas. It’s not satire, though, and it’s no joke.
Diane Moody, aged 76, is taking her 51yearold son Shane, said to have a mental age of 2, to court, asking that he be declared incapable of employing her.
This bizarre situation arises from the rules set by the Ministry of
Health for the payment of individuals caring for family members unable to care for themselves.
Mrs Moody has cared fulltime for her son Shane, who has Williams syndrome, with profound mental disability, is autistic, and has difficulty dressing, walking and controlling bowels and urine, all his life.
For most of that time she wasn’t eligible for any payment by the state for that care, though any nonfamily carer would have been paid, but in 2013, following court action by several carers under the Human Rights Act, the then government introduced Funded Family Care. This allowed payment to family carers (not spouses) for up to 40 hours a week at the minimum wage for household management and personal care, but not for supervision.
Assessment of some of those needs for Shane have been ridiculously inadequate, such as half an hour a week for meal preparation and 10 minutes a day for his bowel and urine care, day and night (most able people need more, and Shane often doesn’t get to the lavatory on time).
In February, the Court of Appeal upheld an appeal against a High Court ruling that the ministry was entitled to decide that Mrs Moody be paid for only 17 hours a week.
She’s now paid for 21 hours a week, and has been offered more, but is still arguing with the ministry about the amount — she believes she should get the whole 40 hours a week allowed by the rules, given that she looks after Shane 168 hours a week.
The ministry continues to adhere to what it admitted, during that case, is ‘‘a mere fiction’’, that Shane employs Mrs Moody, even though the Inland Revenue service, rightly, refuses to accept that he’s capable of completing the necessary documentation or organise PAYE and ACC payments.
Clearly, whatever the ministry says, it’s the real employer, and would be even if Shane wasn’t incapable.
It sets the rules, organises the needs assessment, and provides the money.
Courts usually decide such matters (as with whether a worker is a contractor or employee) according to what is really happening, not on how relationships are labelled.
Why is the ministry insisting on this lie? The answer seems likely to be money.
In court, before the 2013 legislation, the Nationalled government argued that paying family carers could cost up to
$593 million a year.
But it didn’t budget anything for it after the law change. Did it rely on the ministry to make it so hard to get funding that the cost would be minimal?
Five years later, only 354 out of roughly 9500 eligible family carers are receiving payment for their work (a full 40 hours’ pay per week for those 354 would cost only
$12.1 million).
The ministry’s pretence that it doesn’t employ them is probably also intended to exclude it from the usual obligations of employers, such as sick leave, holiday pay and KiwiSaver contributions.
‘‘All we want is a fair deal’’, says Mrs Moody.
The refusal of the ministry to give her that is inexcusable.
Health Minister David Clark should order his ministry to do its job honestly, rather than clinging to a morally indefensible fiction.
Driving along Cumberland St recently, Civis saw the established roadside trees beside the old Cadbury building being felled to make room for the new cycleway.
Will the Dunedin City Council or NZTA replace them, perhaps on the opposite side of the road?
If not, why not?