Ministry of Health v Peter Atkinson (on Behalf of The Estate of Susan Atkinson)

• Jurisdiction: New Zealand
• Judge: O'Regan P,Glazebrook,Ellen France,Harrison,White JJ
• Judgment Date: 14 May 2012
• Neutral Citation: [2012] NZCA 184
• Court: Court of Appeal
• Docket Number: CA205/2011
• Date: 14 May 2012

Between

Ministry Of Health

Appellant

and

Peter Atkinson (On Behalf Of The Estate Of Susan Atkinson)

First Respondent

Gillian Bransgrove

Second Respondent

Jean Burnett

Third Respondent

Laurence Carter Fourth

Respondent

Peter Humphreys

Fifth Respondent

Clifford Robinson

Sixth Respondent

Lynda Stoneham

Seventh Respondent

Stuart Burnett

Eighth Respondent

Imogen Atkinson

Ninth Respondent

[2012] NZCA 184

court:

O'Regan P, Glazebrook, Ellen France, Harrison and White JJ

CA205/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a High Court's decision that appellant's policy of excluding family members from payment for providing various disability support services to their children breached s19 New Zealand Bill of Rights Act 1990 (“NZBORA”) (freedom from discrimination) — Ministry argued that its scheme only filled in gaps not provided by natural supports (including family) of disabled person — comparison with s15 Canadian Charter of Right and Freedoms (equality rights) — meaning of “discrimination” — what was the appropriate comparator group — whether NZ should adopt Canadian approach to determining discrimination whereby differential treatment had to be based on prejudice, stereotyping, historical disadvantage or had particularly severe effects — whether policy was a justified limit under s5 NZBORA (justified limitation).

Counsel:

C R Gwyn, M G Coleman and R J Hoare for Appellant

F M Joychild, D L Peirse and J M Ryan for Respondents

A S Butler, S A Bell and O C Gascoigne for the Human Rights Commission as Intervener

• A The Court answers the two questions of law on which the appellant was granted leave to appeal as follows:

  • (i) First question: Did the High Court correctly state and apply the test for a breach of s 19 of the New Zealand Bill of Rights Act 1990?

    Answer: Subject to one qualification which does not affect the outcome, yes.

  • (ii) Second question: Did the High Court misapply the test for s 5 of the New Zealand Bill of Rights Act 1990?

    Answer: No.

• B The appeal is accordingly dismissed.

• C No order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No
Introduction	[1]
The contextual setting for the claims	[5]
The New Zealand Public Health and Disability Act 2000	[7]
The policy	[9]
The services in issue	[15]
The individual claims	[20]
The Atkinson family (first and ninth respondents)	[21]
Gillian Bransgrove (second respondent)	[24]
Jean Burnett and Stuart Burnett (third and eighth respondents)	[26]
Laurence (Nick) Carter (fourth respondent)	[27]
Peter Humphreys (fifth respondent)	[28]
Clifford Robinson (sixth respondent)	[29]
Lynda Stoneham (seventh respondent)	[30]
The statutory scheme	[33]
The judgments below	[43]
The test for a breach of s 19	[55]
Differentiation on a prohibited ground?	[56]
The comparator	[60]
Discriminatory treatment?	[75]
The Canadian approach	[79]
Summary	[96]
The New Zealand approach	[98]
Discussion	[108]
Consistency with the statutory scheme and purpose	[111]
Comparison of the statutory schemes	[118]
Policy considerations	[123]
Conclusion	[135]
Application of the test to this case	[137]
Terminology	[141]
The approach to s 5	[143]
The objectives relied on by the Ministry	[147]
Minimal impairment	[148]
The applicable principles	[151]
Discussion	[154]
Standard of proof	[163]
The relevant principles in determining the standard of proof	[164]
Discussion	[167]
Level of deference	[172]
Overall proportionality/reasonableness	[180]
Addendum—prescribed by law?	[181]
Result	[185]

Introduction

1 The current policy of the Ministry of Health (the Ministry) excludes family members from payment for the provision of various disability support services to their children. The nine respondents (seven parents of adult disabled children and two adult disabled children) all of whom are affected by this policy, made a complaint under Part 1A of the Human Rights Act 1993 (the HRA) to the Human Rights Commission (the Commission). The respondents claimed the Ministry's policy comprised unlawful discrimination against them on the basis of their family status. It was alleged that the parents were providing services for their disabled children but not being paid and the adult children were denied their choice of caregiver.

2 In terms of s 20L(1) of the HRA, an act or omission is in breach of Part 1A if it is inconsistent with s 19 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). That section protects, amongst other matters, the right to be free from discrimination on various grounds, including family status. For the purposes of s 20L(1) an act or omission is inconsistent with s 19 if it limits the right to freedom from discrimination and is not, under s 5 of the Bill of Rights, a justified limitation on that right. 1

3 The matter was referred to the Human Rights Review Tribunal (the Tribunal). After a hearing, the Tribunal made a declaration that the policy was inconsistent with s 19 of the Bill of Rights. 2 The Ministry appealed to the High Court against the making of the declaration. The High Court dismissed the appeal, upholding the Tribunal's conclusion that the policy was discriminatory and was not a justified limit on s 19 in terms of s 5 of the Bill of Rights. 3 There is an ability to appeal to this Court under the HRA on questions of law. 4 The Ministry sought and was granted leave to appeal on two questions of law. 5 The two questions are as follows: 6

• (a) Did the Court correctly state and apply the test for a breach of s 19 of the [Bill of Rights]?

• (b) Did the Court misapply the test for s 5 of the [Bill of Rights]?

4 Before answering the questions of law, we first need to set out the policy and factual context in which the respondents made their claims. We then describe the statutory framework and the Tribunal and High Court judgments. We add that the

Commission gave notice of its intention to appear and be heard on this appeal under s 92H of the HRA. 7

The contextual setting for the claims

5 The figures before us 8 indicate that the Ministry provides services to approximately 30,000 disabled persons. 9 That figure encompasses persons aged mostly less than 65 years having a physical, sensory or intellectual disability, or a combination of them. Other departments and agencies are responsible for other groups of disabled persons. For example, District Health Boards (DHBs) have responsibility for people with psychiatric, addiction or age related disabilities. The Accident Compensation Corporation has responsibility for those whose disability results from personal injury as defined in the Accident Compensation Act 2001. 10

6 Public funding for disability services operates under the umbrella of the New Zealand Public Health and Disability Act 2000 (the 2000 Act). We briefly describe the legislative framework.

The New Zealand Public Health and Disability Act 2000

7 One of the key purposes of the 2000 Act is to provide for public funding and provision of, amongst other matters, disability support services. 11 “Disability support services” are defined in s 6(1) of the 2000 Act. 12 The purposes of the Act also include achieving for New Zealanders the following objectives: 13

• (ii) the promotion of the inclusion and participation in society and independence of people with disabilities:

• (iii) the best care or support for those in need of services:

  …

8 Section 3(2) of the 2000 Act provides that these objectives are to be pursued to the extent “that they are reasonably achievable within the funding provided”. The Act makes it clear that nothing in the 2000 Act limits the operation of s 73 of the HRA which deals with measures to ensure equality. 14 Finally, s 10 of the 2000 Act provides that the Minister may enter into funding agreements for the provision of disability support services.

The policy

9 Geraldine Woods, the Deputy Director-General of the Health and Disability National Services Directorate in the Ministry (the Directorate), 15 explained in her evidence that the funding for disability support services was transferred from the Department of Social Welfare to the health sector in the early 1990s. This was as a part of what was described as the “New Deal” reforms to social services. These reforms included the move to targeted assistance. 16 As part of these reforms, the Government released its framework for the funding and delivery of health and disability services which reflected the decision to co-ordinate funding for disability support services through one agency. Specifically, the four Regional Health Authorities (RHAs) had purchasing powers for disability support services to allow a focus broader than hospital or other medical services. 17

10 A disability support services framework was also developed. 18 As Ms Woods said, an important part of this framework was the separation of needs assessment, service co-ordination, and service provision (colloquially known as the funder/provider split).

11 Patricia Davis, National Operations Manager for the Disability Services group in the Directorate, explained in her evidence that, although disability support services were under the wing of the four RHAs over the period from the early 1990s to 1997, the Ministry had a policy and strategic role. The RHAs established various forms of what are now known as Needs Assessment and Service Co-ordination organisations (NASCs), and contracted with providers to deliver services. In 1997 the four RHAs were merged into a single Health Funding Authority (HFA). In 2000, the HFA became a...