A fundamental question all states must grapple with is to what extent should it pay for the care of its citizens?

At what point do we say a person’s difficulties are their own? When do we accept that collectively we should provide for those that cannot provide for themselves? Who should decide these questions?

These questions all come to mind after Peter Humphreys recently had the unenviable task of taking his highly disabled daughter, and the Ministry of Health, to the Employment Court.

The case was one laboured step in a long journey for New Zealand home care workers to obtain not just recognition for their work, but to obtain the ability to enforce rights many workers take for granted.

Humphreys’ 33-year-old daughter was diagnosed with Angelman syndrome when she was three years old. She has had high disability needs since her birth and those will continue through her life.

His daughter requires 24/7 supervision at all times. She suffers from uncontrolled seizures. She has no ability to control her bowel motions. She sleeps little, some night six hours, other nights three to four hours. She needs full assistance with everything, from showering, brushing her teeth to getting dressed. She is mostly spoon-fed.

Humphreys has been providing this care for the duration of her lifetime. However, until 2012, he was not paid for his work. While the Ministry of Health would pay for professional carers, it would not pay for home carers performing the same work. This issue was not resolved by Parliament, but by the courts.

In 2012 the Court of Appeal confirmed that those who provided care for their adult children had been discriminated against by the Ministry of Health on the basis of their family status.

The Employment Court noted that the ministry’s position in that case appeared to have rested on the assumption that family caregivers could be expected to provide (free) care for their disabled children in line with their “familial obligations”. That assumption was rejected.

Following the Court of Appeal decision, the Ministry of Health entered into a series of different regimes with these family carers to pay for their work. For a period he was employed by the Ministry of Health to provide for the care of his daughter.

However, in 2020, the ministry shifted to a new model where his severely disabled daughter, with no capacity, was deemed “the employer” and the ministry attempted to keep itself far removed by being the “funder”.

The court described the “emotional” evidence of the frustrations Humphreys encountered trying to raise employment issues under this system. He said that he was never able to complain to his designated employer (his daughter). He had been trying to raise issues from pay parity to the number of hours allocated to him. He said that the ministry dictated his working conditions.

He told the court that the never ending battles “that us parents of adult disabled children who want to be supported to care for our children at home just wears you down. The bottomless money coffer that is there to fight us through the courts is something that we cannot compete with”.

The Employment Court recently released its judgment. It held that his daughter did not and could not employ her father.

Instead, the court held that Humphreys was a homeworker engaged by the Ministry of Health under the Employment Relations Act, and therefore an employee.

In reaching this finding, the court recognised the special status of homeworkers. It said that homeworkers and the work they do is largely invisible to the outside world. That work has historically been undervalued and private.

The court noted that society’s perception of the value of work, and valuable role of those who perform it, has since evolved. The special recognition of homeworkers as being employees in the Employment Relations Act reflected these changes.

The implications of this decision may impose a significant financial burden on the Ministry of Health. The Employment Court did not decide the issue of what number of hours Humphreys should be paid for.

When Humphreys’ daughter was deemed his employer, there was no way he could have claimed higher wages as his disabled daughter would have been liable.

Now, however, the funder of his work will be liable. Given the extensive needs of his daughter, he may have worked much longer than what he was paid for.

It is hard to say whether Parliament has ever fully considered the circumstances of someone like Humphreys. Indeed, the nature of Humphreys’ work makes these issues very easy to overlook.

It’s in these circumstances the courts play a key role in ensuring all in New Zealand are treated fairly.

Cullen –The Employment Law Firm is now a part of Mahony Horner Lawyers.   David Burton the author of this article is a Principal of Mahony Horner Lawyers.  He can be contacted at david.burton@mhlaw.co.nz