Up to 2500 people may be deemed employees of the government and not their disabled family members if the Court of Appeal upholds an Employment Court decision. 

A briefing from Whaikaha officials before the appeal points out the “significant implications” if the decision holds.  

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“It is estimated up to 2500 people currently receiving [support] may not have capacity to manage an employment relationship and where they employ a family carer that person could be considered an employee of Whaikaha.  

“This would come with corresponding employer obligations such as health and safety, as well as significant financial cost to compensate the fact that they are constantly on-call,” they wrote.

Policy is being developed that can be rolled out if the Court of Appeal decides the government is the rightful boss of family carers, or at the very least not the disabled family members.

Currently through the Individualised Funding model the disabled person employs their own carer. This means they hold the responsibilities of a boss including paying wages, ACC and tax.

The Employment Court deemed for some severely disabled “employers” this was clearly wrong, and instead said the government was essentially employing the family members because they were doing work the government would have been responsible for. 

Legal action between family carers and the Ministry of Health has a long and fraught history. 

One Whaikaha official told Newsroom it had been a “hospital pass” for the new ministry when it came into effect last year and the responsibility moved with it.

“Our view is that there is insufficient legal and policy justification to continue to pursue the issue.” – Whaikaha

But it seems officials plan to do things differently from the Health Ministry. 

“Whaikaha is mindful of the risk that continuing this litigation may impact Whaikaha’s relationship with the disability community, the continued impact on the families involved, the power imbalance that exists between them and the Crown, and the fact that the matter has been inherited from the Ministry of Health along with a long history of litigation with disabled people and whanau.”

The ministry does not intend to seek costs if it wins in the Appeals court, and during the appeal it conceded that severely disabled people lacked capacity to be their carer’s boss. 

“Our view is that there is insufficient legal and policy justification to continue to pursue the issue. 

“However, in continuing the appeal we consider it likely that many people in the community would not be supportive of the Employment Court’s decision that the Crown is the employer of paid family carers… Determining paid family carers to be public servants is not likely to be seen as consistent with EGL [Enabling Good Lives].

“We are seeking your agreement to progress policy work to find a more permanent solution to this matter.”

A handwritten “yes” from the then-Disability Minister Poto Williams sits next to this on the briefing.  

Officials had intended to provide advice by March this year, with a view to it being considered before the Court of Appeal decision was released.  

However, this has not yet been done and no papers have been prepared for new minister Priyanca Radhakrishnan to take to Cabinet. 

Whaikaha Policy Strategy and Partnership deputy chief executive Ben O’Meara said the work was underway. 

“Officials have been undertaking targeted engagement on policy options with disability community groups. Whaikaha will provide advice to the minister in due course.  

“It is anticipated that any policy changes would be implemented after the Court of Appeal judgment is released, subject to the nature of the court’s decision.  

“No decisions on when policy changes might come into effect have been made.” 

Emma Hatton is a business reporter based in Wellington.

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