Spencer v Attorney-General

• Jurisdiction: New Zealand
• Judge: Winkelmann J
• Judgment Date: 03 October 2013
• Neutral Citation: [2013] NZHC 2580
• Docket Number: CIV-2012-404-6717
• Court: High Court
• Date: 03 October 2013

UNDER the Judicature Amendment Act 1972

UNDER the Declaratory Judgments Act 1909

BETWEEN

Margaret Spencer

Plaintiff

and

Her Majesty's Attorney-General in respect of the Ministry of Health

First Defendant

And

The Human Rights Review Tribunal

Second Defendant

BETWEEN

Margaret Spencer

Plaintiff

and

Her Majesty's Attorney-General in respect of the Ministry of Health

Defendant

[2013] NZHC 2580

CIV-2012-404-6717

CIV-2013-404-2910

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for judicial review — application for declaratory judgment — Ministry of Health declined to consider plaintiff's application for funding for the care she provided to her adult son who suffered Down's Syndrome, was seriously disabled and unable to care for himself — Ministry operated a policy that excluded parents, spouses and other resident family members who provided disability support to their adult relatives, from receiving publicly funded payment for those services — Human Rights Review Tribunal declared the policy was inconsistent with the right preserved in s19 New Zealand Bill of Rights Act 1990 (freedom from discrimination) to be free from discrimination on the grounds of family status (“the Atkinson proceeding”) — plaintiff was not a party to the Atkinson proceeding — Ministry applied under s92O(2)(d) Human Rights Act 1993 (Tribunal may defer or modify remedies for breach of Part 1A or Part 2 or terms of settlement) and obtained an order suspending the declaration of inconsistency — whether Tribunal had jurisdiction to suspend a declaration it had already made — effect of part 4A New Zealand Public Health and Disability Act 2000 (family care policies) on the right of those affected by that policy to seek redress.

Appearances:

J Farmer QC, S L Robertson, M A Sissons, G J Peachey for plaintiff

U R Jagose, M G Coleman for defendant

A S Butler, P R Barnett, S A Bell for Human Rights Commission

JUDGMENT OF Winkelmann J

TABLE OF CONTENTS

Introduction	[1]
A. The validity and effect of the suspension order
1. Did the Tribunal have jurisdiction to make the order?
Relevant background
The making of the order	[17]
Statutory framework	[27]
Argument	[32]
Analysis	[36]
2. Is the order affected by procedural flaws?
Argument	[72]
Relevant background	[77]
Role of the Commission and Director of Proceedings	[78]
Complaints to the Commission in the Atkinson proceeding	[83]
Mrs Spencer's complaints to the Commission	[92]
Analysis	[98]
3. If the answer to 2 is yes, is the order invalid from the beginning as a consequence?	[116]
B. If the suspension order is valid, is it binding on Mrs Spencer?	[119]
C. Is the Ministry estopped from relying upon the policy?	[120]
D. What is the effect of Part 4A of the NZPHDA on Mrs Spencer's right to relief in the judicial review proceeding, and her ability to be joined to the Atkinson proceeding?	[126]
Argument	[135]
Analysis	[146]
E. In any case, is the Ministry estopped from denying that the Atkinson proceeding is a representative proceeding?	[170]
F. What relief, if any, is Mrs Spencer entitled to? Judicial review proceeding	[176]
Declaratory judgment proceeding	[187]
G. Summary of conclusions	[190]
H. Formal orders	[198]

Introduction

1 This judgment is given in two proceedings. In the first, a judicial review proceeding, the primary issue is whether the Human Rights Review Tribunal (the Tribunal) had jurisdiction to suspend a declaration it had already made that a Ministry of Health policy was inconsistent with the right preserved in s 19 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) to be free from discrimination on the grounds of family status. In the second proceeding, the issue is the effect of Part 4A of the New Zealand Public Health and Disability Act 2000 1 (NZPDHA) on the right of those affected by that policy to seek redress. That issue also arises in the remedies phase of the judicial review proceeding.

2 The background to these proceedings is as follows. Mrs Spencer is the caregiver for her adult son Paul. He has suffered from Down's Syndrome since birth, is seriously disabled and unable to care for himself. He cannot live independently and lives with his mother. Mrs Spencer is one of a number of family caregivers who have, for many years, strived to obtain payment from the Ministry of Health (the Ministry) for the care they provide to their adult relatives. The Ministry operates a policy that excludes parents, spouses and other resident family members who provide disability support services to their adult relatives from receiving publicly funded payment for those services. That policy reflects the Ministry's view that family members are “natural supports”, bound by a social contract between families and the state whereby families are not paid for looking after their own.

3 This policy was challenged before the Tribunal. Mrs Atkinson 2 and eight others (seven parents of adult disabled children and two adult disabled children) brought proceedings in which they alleged that the Ministry's practice of excluding specified family members of people eligible for disability support services from payment for those services contravened s 20L of the Human Rights Act 1993. That provision states that an act or omission is in breach of Part 1A if it is inconsistent with s 19 of the Bill of Rights Act because it unjustifiably limits the right to freedom from discrimination. Family

status is, by virtue of s 21 of the Human Rights Act, a prohibited ground of discrimination. For reasons discussed later in this judgment, Mrs Spencer was not a party to that litigation

4 On 8 January 2010 the Tribunal found in favour of the Atkinson plaintiffs, declaring the Ministry's policy inconsistent with s 19 of the Bill of Rights Act. The Tribunal directed that there should be a separate hearing to determine whether any of the orders sought by the plaintiffs should be granted. The relief sought includes an order restraining the Ministry from continuing the breach, damages for pecuniary loss, and damages for humiliation, loss of dignity and injury to feelings. The remedies hearing was ultimately delayed by the filing of appeals against the Tribunal's decision. It was scheduled to take place later this month but has been further adjourned.

5 Following the issue of the January 2010 decision, the Ministry immediately applied, under s 92O(2)(d) of the Human Rights Act, for an order suspending the declaration of inconsistency The application stated that the order was sought to enable the Ministry to be able to lawfully apply the existing policy while it worked out its new policy, and also while it pursued its appeal. Although the application was initially opposed by the Atkinson plaintiffs, they subsequently consented to a “suspension” order being made.

6 The Ministry appealed the Tribunal's decision. Its appeal was dismissed in the High Court on 17 December 2010, and in the Court of Appeal on 14 May 2012. The Court of Appeal upheld the finding of the High Court and the Tribunal that the policy was inconsistent with s 19 of the Bill of Rights Act. It discriminated against family caregivers on a ground prohibited by s 21 of the Human Rights Act, namely family status, because it imposed a material and more than trivial disadvantage on both the caregivers and those in need of care. That limitation could not be justified in a free and democratic society; the Court of Appeal rejected the Ministry's “social contract” justification for the policy. On 12 June 2012 the Ministry announced that it would not pursue a further appeal to the Supreme Court.

7 After the Tribunal's decision was upheld by the Court of Appeal, Mrs Spencer renewed her earlier efforts to obtain payment from the Ministry as Paul's caregiver. The Ministry declined to consider her application on the basis that the Tribunal's declaration had been suspended, so that its policy continued to operate.

8 Mrs Spencer has now applied for judicial review on the grounds that the Ministry acted unlawfully in refusing to consider her application for funding. Mrs Spencer further alleges that in declining to consider her application the Ministry took into account an irrelevant consideration, namely the policy declared unlawful by the Tribunal. Alternatively, she says it breached her legitimate expectation that her request for funding would be considered according to its merits.

9 The Ministry's defence to this claim is that while the suspension order was in place the Ministry could continue to lawfully apply the policy. Mrs Spencer responds that the suspension order was made without jurisdiction. The Human Rights Act does not confer a power on the Tribunal to make such an order. She says further that if there was statutory jurisdiction, the Tribunal's procedure was so deficient that the order is invalid. Finally, she says the Ministry is estopped from asserting that there has at all times been a policy that precludes the payment of family members in all circumstances, because in practice the Ministry did pay family caregivers.

10 The Ministry has an additional defence to Mrs Spencer's claim for judicial review. It says that Part 4A of the NZPHDA now makes the policy that was successfully challenged in the Atkinson proceeding lawful, and in any case prohibits the Ministry from paying Mrs Spencer other than in accordance with that policy or some other family care policy. Since the existing policy is a policy of non-payment of family members, any relief granted to Mrs Spencer to the effect that the Ministry reconsider her...