In 2008 the Human Rights Review Tribunal declared that the Ministry of Health’s refusal to pay family who support their disabled relatives was a breach of the Human Rights Act.
In December 2010, the ministry lost its appeal to the High Court.
The ministry then took the case to the Court of Appeal, which upheld the High Court decision, backing the families claims of discrimination.
Now, unbelievably, the minister Tony Ryall appears to be considering the option of taking the issue to the Supreme Court.
The case, which has been taken by a group of parents caring for their adult children who are disabled, is pretty simple. The disabled individuals have been assessed by the MOH as requiring support with daily living. But the ministry also says that only support workers who are not family members can be paid to fill that role. Under the Human Rights Act, it’s illegal to discriminate against someone in employment on the grounds of family status.
The ministry’s defence of its decision has mainly been based around financial reasons. It claims that it simply cannot afford to pay all family members who support their disabled relatives, and that parents have a duty of “natural support” – that they should care for their own children for free.
The High Court and Court of Appeal have agreed with the Human Rights Tribunal that the so-called duty of natural support has its limits. The Court of Appeal noted: “The [High] Court accepted that there was a community perception of a parental duty to look after their children up to a certain age, in the sense of providing them, within their means, food, shelter and clothing …However, the court saw it as a different matter altogether to extrapolate from that to a duty owed by parents to care for disabled children for the duration of the life of those children … no matter how severe the disability. We agree.
“There is no support for the suggestion there is a social contract to care for adult children who are disabled for the remainder of their lives on a full-time basis, subject to respite care.”
As the appeal judges pointed out, if a “social contract” such as this existed, it would be inconsistent with the MOH policy that enables parents or other family members to effectively decline to care for their disabled relatives and instead receive paid support.
The MOH argues that the cost of paying family support workers could range anywhere from $17 to $593 million dollars a year, but has provided no data or documentation to back up how many people might come forward as a result of the policy change. In reality, families who choose to support their disabled relatives are only taking money that the ministry has already allocated for paid support for the individual anyway.
The government has now spent $1.4 million in legal costs trying to uphold the policy. Does it really need to use more public funds to bring this before another court of judges only to confirm, for the fourth time, that some of the most vulnerable members of society are being discriminated against by the ministry that is supposed to taking care of them?
Arguing that there is not enough money is no defence for discrimination, particularly when there is little evidence to back such financial arguments.
How many more times does the MOH need to be told that its refusal to pay family supporting disabled relatives is a breach of human rights? Let’s hope that three was enough, and that these families can now start receiving the compensation that they deserve.
[Update] Health Minister Tony Ryall announced yesterday afternoon that the Government will not be appealing the court ruling, allowing family of disabled individuals to be paid for the support that they provide.
“The next step in the legal process is for the Human Rights Review Tribunal to consider and determine what remedies the families who made a claim to the Human Rights Tribunal will receive,” says Mr Ryall.