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New Zealand: Court of Appeal Finds Non-Payment of Family Caregivers to Be Discriminatory

(May 15, 2012) On May 14, 2012, New Zealand's Court of Appeal ruled that a Ministry of Health policy affecting the payment of caregivers of disabled family members is discriminatory. (Ministry of Health v. Atkinson [2012] NZCA 184.) Under the policy, government funding is available to pay for support services for disabled people where those services cannot be performed by family members. Family members that do provide care to disabled adult children are not eligible for the payments. (Press Release, Court of Appeal of New Zealand, Ministry of Health v. Atkinson: Case Summary (May 14, 2012).)

The complainants in the case were seven parents of adult disabled children and two adult disabled children. The parents claimed that the lack of payment for their performance of four specified services covered by the funding policy comprised unlawful discrimination on the basis of their family status. Both the Human Rights Review Tribunal and the High Court had previously upheld the complaints and declared that the Ministry's policy was inconsistent with the New Zealand Bill of Rights Act 1990. (Ministry of Health v. Atkinson, supra, ¶ 3).

The four services at issue in the case related to home-based support services and services that help disabled adults to live independently. (Id. at 15.) It was stated that the Ministry provides home-based support services to approximately 30,000 people. (Id. ¶ 16.) The Court was also told that the estimated costs of paying parents for the care of disabled children vary between NZ$17 million and NZ$593 million (about US$13.3 to US$464 million). (Id.¶ 170.)

Right to Freedom from Discrimination

Freedom from discrimination is a right protected under section 19 of the Bill of Rights Act. (New Zealand Bill of Rights Act 1990, New Zealand Legislation website.) Family status, including “having the responsibility for part-time care or full-time care of children or other dependants” and “being a relative of a particular person,” is one of the prohibited grounds of discrimination under the Human Rights Act 1993, to which section 19 of the Bill of Rights Act refers. (Human Rights Act 1993, s 21(1)(l), New Zealand Legislation website.)

In its decision, the Court of Appeal referred to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as to the United Nations Convention on the Rights of Persons with Disabilities, to all of which New Zealand is a party. (Ministry of Health v. Atkinson, supra, ¶¶ 39-42.) The Court also considered relevant findings of Canadian and United Kingdom courts as part of its discussion of some aspects of the New Zealand law, including the meaning of “discrimination.” (See e.g., id. ¶¶ 60, 69, 79-97, & 110-122 (concluding that “there are differences between the New Zealand and Canadian provisions which explain why the latter approach is not necessarily appropriate for New Zealand.”)

Findings of the Court of Appeal

The Court of Appeal held that the Ministry's policy was prima facie discriminatory, stating: “we consider differential treatment will be discriminatory if, when viewed in context, it gives rise to a material disadvantage.” (Id.¶ 136.) It held that “[b]oth the denial of paid work to the parent respondents performing the specified services and the denial of choice to the adult disabled children amounted to material disadvantage.” (Press Release, supra.)

The Court then considered the approach to and application of the various parts of section 5 of the Bill of Rights Act, which provides that rights and freedoms “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Ministry of Health had put forward nine purposes as rational for the policy of restricting payments to non-family members for the four services, including concerns about cost, the ability to monitor the quality of care that family members provide, and the possible consequences of a family being reliant on a disabled person for income. (Ministry of Health v. Atkinson, supra, ¶ 147.) Having considered a range of legal arguments, the Court of Appeal agreed with the High Court's determination that the objectives set out by the Ministry did not satisfy the justification requirement of section 5. In essence, it held that the policy “imposed a limit that was greater than was reasonably necessary to achieve the Ministry's objectives, and was not a reasonable limitation on the right to freedom from discrimination.” (Press Release, supra.)

Next Steps

Following the decision, the families will need to go back to the Human Rights Review Tribunal and engage in a remedy process to determine how much money they are entitled to receive. It was reported that the Ministry may be considering appealing the decision to the Supreme Court. (Stacey Kirk & Danya Levy, Appeal Court's Landmark Disability Decision, STUFF.CO.NZ (May 14, 2012).)