Yesterday the New Zealand Court of Appeal released its decision confirming the outcome of two previous rulings (at the Human Rights Review Tribunal and the High Court): That it is discrimination for the Government to have a rule against paying parents for providing care to their disabled children. But what does that mean? I’ve seen some very confused interpretations by the lay public, and I too was unsure about what this meant for families like mine, so I read the decision and have decided to do a post attempting to explain it.
It helps to keep in mind that this is a decision about whether what the Government was doing, was discrimination. The answer to that question is “yes.” So what was the Government doing? It had a blanket rule against parents being the recipients of carer payments, for care provided to their disabled children. To clarify: Disabled individuals can receive government funding specifically targeted to pay for care and support, but it comes with the restriction that this funding not go towards parents; the carer had to be someone the disabled individual was not related to. The courts decided this was discrimination on the grounds of “family status.”
It helps to understand who it is discriminating against. The action was brought by disabled adults and some parents of disabled adults. The discrimination was found to be against both groups. It is discriminating against the parents because they are excluded from employment they are willing and able to do merely on the grounds of their family status. And it is discriminating against the children since it restricts their ability and right to choose their own carers, on the grounds again of family status.
The court’s reasoning as to why this was discriminatory would seem to apply beyond the groups they were specifically addressing – disabled adults and their parents – since parents of younger disabled children are similarly blocked from payment purely on the grounds of family status. How widely the decision applies – including to beyond the disabled – is a controversial issue, and one that the Government is very concerned about (not surprisingly). Even in its immediate application – the decision relating to adult disabled children and their parents – the government is concerned about the financial implications. But the Court of Appeal was not convinced that it would actually lead to a huge financial blowout (the court was of the opinion that the cost would be closer to $17 million a year than the potential $593 million a year).
The Ministry of Health argued that the change proposed by the courts’ decisions would require a complete change to the system in place, and though the court was not convinced on this point, I would personally be happy to see a complete change to the system in place; it is confusing, slow, and bureaucratically overladen, it could do with a major shake-up.
There are a lot of interesting (and frequently complex) arguments through-out the decision, about the tests for discrimination and the Ministry’s arguments against the finding of discrimination (that it is a justified discrimination if it is a discrimination), that I’m not going into detail in this post. If you have any particular questions, I can try to answer them for you, or you may want to read the decision for yourself (pdf). The news items I provide links to below, are also helpful.
I hope at least that my post somewhat clarifies the decision. I will of course be keeping an eye on what happens next, and may write further commentaries on whether this was a good decision, and for whom.