6 May 2015

Court backs mother in carer compensation case

10:37 am on 6 May 2015

A court ruling means a full time carer of her disabled adult son could be eligible for hundreds of thousands of dollars in compensation for unpaid work.

The Court of Appeal has dismissed the Ministry of Health's bid to stop Margaret Spencer applying for back pay.

Until last year, Ms Spencer had been providing unpaid care for her 46-year-old Down's syndrome son since his birth.

She applied to be paid as his carer 10 years ago but was turned down by the ministry because she was a family member.

A court ruled in an earlier separate case that the policy was discriminatory, prompting Ms Spencer to seek back pay for her unpaid work over the past decade.

The ministry challenged her through the Human Rights Tribunal, the High Court and then the Court of Appeal.

In every case, the court had ruled in Ms Spencer's favour but she said the process had been exhausting.

"I'm very proud of my son, but he's on the way downhill, and he has been for quite a while, and it makes life very difficult.

"When a parent has to care for a handicapped person, I don't think they need to be taking on the government as well."

Her lawyer, Jim Farmer, said based on the minimum wage, her back pay worked out to a few hundred thousand dollars. He said other family carers should chase compensation now that three courts have proved they were eligible.

"They would have to satisfy the same sort of criteria that Margaret has," said Mr Farmer. "That is, that they would have to show that they also were providing those services during that period, [and] they would have to show that they had made a complaint about that fact to the Human Rights Commission, the Ministry, or both."

Mr Farmer said it was too soon to proclaim victory because the Ministry of Health had 20 days to request an appeal with the Supreme Court.

If the ruling was not challenged again, his client would go back to court with her compensation claim.

Human Rights Commission's disability rights commissioner Paul Gibson agreed the fight for family-carers was not over yet.

He said although the government agreed to pay family-carers some money, it set up a system that was too difficult for most carers to use.

"The government in 2013 budgeted for 1600 people to take up family paid care," he said. "The restrictions are so tight that to date only about 15 percent of that number have taken it up."

The Ministry of Health said it was considering the implications of the ruling.

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