7 Mar 2018

Caregivers going to court for disabled care pay

10:00 am on 7 March 2018

Another group of caregivers is going to court to be paid to care for their disabled adult children or spouse.

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Photo: 123RF

The King case dates back to 2008 and involves 13 plaintiffs from seven families who cared for their disabled child or spouse without being paid between 2002 -2012.

It comes a month after the Court of Appeal indicated it did not want to hear any more disputes involving adequately paying family members to care for their disabled adult children.

Prior to 2012 the Ministry of Health had a long-standing policy or practice of preventing resident family members of people with disabilities from being paid for their care work.

That changed in two cases called Atkinson and Spencer where the court ruled the law was discriminatory and relatives should be paid to care for disabled family members.

The lawyer representing the group, Simon Judd, said his clients were seeking compensation for lost wages before the Ministry of Health agreed to pay family members to care for their disabled adult children.

His clients were told to wait for the outcome of the Atkinson and Spencer cases, he said.

"They were advised at the time that the Atkinson case was going through and then the Spencer case was going through, don't pursue your cases because these Atkinson and Spencer cases are like test cases, let's just wait for the outcome of these cases and the Ministry (of Health) will abide by and just apply the outcome of these cases to you people."

"That's what they thought and that's what they were told," he said.

"Then those cases went through and they asked to be treated in the same way and the Ministry said 'no, we're not going to treat you in the same way'."

Mr Judd said faced with that, his clients have opted to continue with litigation.

He stressed it wasn't just about the money, but also respect and recognition.

"For years they were treated as if they were unemployed beneficiaries, when in fact they were working really, really hard as the caregiver - and yes, they wanted to be paid a fair living wage for the work that they did - but almost more importantly they want the respect and the recognition that all of us hope for and deserve if we are working really, really hard," he said.

One of the claimants, Angela Hart is a full-time carer to her 37-year-old daughter Gilly who has muscular dystrophy.

She said she was "gobsmacked" by the refusal to treat them the same as the Atkinson claimants.

"I watched Atkinson go through the courts and I was confident that the results would apply to anyone in a similar situation to Atkinson. I was absolutely gob-smacked when the government passed the legislation which meant it isn't applied to everybody."

After Atkinson

Following the cases of Atkinson and Spencer, the government introduced a policy to pay family carers through the New Zealand Public Health and Disability Amendment Act 2013. It was passed under urgency without public consultation or select committee scrutiny.

The Act introduced what is known as Part 4A, which created the statutory underpinning for a new policy called Funded Family Care which allowed family members to be paid for up to 40 hours a week at the minimum wage for caring for their children. It was introduced in October 2013.

But Angela Hart said the law now was very different from what people had expected as a result of the Atkinson decision.

"Funded Family Care excludes spouses and partners of disabled people from being paid, and it excludes carers of people under 18 from being paid, and it excludes people whose disability is not classified by the Ministry of Health as high and complex from being paid, even if they have quite significant needs," she said.

"If they don't fall into that high and complex band, then their family caregiver can't be paid. So there's a whole load of exclusions," she said.

The point of Atkinson was to address the discrimination towards family carers, but that also had not happened, she said.

"Family caregivers can only be paid minimum wage, whereas there's been this pay equity settlement and now caregivers who have traditionally been seriously underpaid are now expected to be paid more fairly, and the minimum starting rate now is $19.00 an hour.

"Family caregivers can only get $15.75 no matter how experienced they are, or whether they've got nursing qualifications or any of that, they're only paid minimum wage."

The King case has been set down for a three-month hearing in the High Court, which the Otago Legal Issues Centre estimated would cost taxpayers at least half a million dollars.

Because of the length of the hearing, it is not expected to take place until next year.