Spencer v Ministry of Health
| Jurisdiction | New Zealand |
| Judge | Keane J,MR B K Neeson,Pastor R Musuku |
| Judgment Date | 20 July 2016 |
| Neutral Citation | [2016] NZHC 1650 |
| Docket Number | CIV-2014-404-1667 |
| Court | High Court |
| Date | 20 July 2016 |
UNDER the Human Rights Act 1993
IN THE MATTER OF a reference by the Human Rights Review Tribunal
[2016] NZHC 1650
CIV-2014-404-1667
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Referral to the High Court by the Human Rights Review Tribunal under the Human Rights Act 1993 on the issue of whether the plaintiff was entitled to retrospective payment for providing care to her 48 year old son who suffered from Down Syndrome, prior to the coming into force of the New Zealand Public Health and Disability Amendment Act 2013, which authorised payment to the plaintiff — plaintiff had not received income prior to 2013 — whether the plaintiff was entitled to be paid retrospectively under the New Zealand Public Health and Disability Act 2000 — whether the Ministry of Health unjustifiably discriminated against the plaintiff under its home based support services policy or practice because she was his mother rather than an external care provider, which the Ministry agreed to pay.
J A Farmer QC, S L Robertson, P M C Gibbs & T J O'Brien for Plaintiff
P T Rishworth QC, M G C Coleman & M J McKillop for Defendant
A S Butler, J S Hancock & E M Watt for Human Rights Commissioner as Intervenor
JUDGMENT OF Keane J MR B K Neeson and Pastor R Musuku
Paul Spencer, now aged 48, suffers from Down syndrome. He has never been able to live independently. Nor has he ever been able to care for himself unassisted and unsupervised. Throughout his life he has been in the care of his mother, Margaret Spencer, whose case this is.
Since 1990, when Mrs Spencer and her husband separated and she ceased working in their business, she has devoted herself to Paul's care. She and Paul have been dependent on social welfare benefits and in more recent years she has been a superannuitant. Since August 2014 she has also been paid by the Ministry of Health under its funded family care policy, at the minimum wage, for 29.5 hours personal care and household management services for Paul each week.
The policy under which the Ministry now pays Mrs Spencer was authorised by the New Zealand Public Health and Disability Amendment Act 2013; and her case, which still lies before the Human Rights Review Tribunal under the Human Rights Act 1993, now concerns only the extent to which, if at all, she is entitled to be paid retrospectively since January 2001 under the New Zealand Public Health and Disability Act 2000, before the amendment.
On 4 July 2014 the Tribunal held to the civil standard that between January 2001 – May 2013 the Ministry unjustifiably discriminated against Mrs Spencer, and Paul, under its home based support services policy or practice. It declined to pay her for her qualifying services for Paul solely because her status as his mother disqualified her. To the extent that it did then recognise that Paul was entitled to such services it elected to pay an external provider.
As the Tribunal said in its July 2014 reference, Mrs Spencer's then damages claim lay beyond its jurisdiction. The Tribunal is able to award damages up to $200,000. 1 Her claim for pecuniary loss alone, in which she contends that after January 2001 she provided Paul with 70 hours qualifying support services each week, then exceeded $700,000. (It now stands at $858,589 and interest, $246,782, in all $1,105,372.) She also claimed $100,000 damages for humiliation, loss of dignity and injury to feelings.
Consequently, as the Tribunal then said, it had under the HRA to refer the issue of remedy to this Court; a reference under which this Court must decide what remedy, if any, Mrs Spencer is entitled to — a remedy which then becomes part of the Tribunal's full determination of Mrs Spencer's claim.
The logic on which Mrs Spencer advances her claim is simple. It is that but for the care that she provided Paul in the years in issue, the Ministry would have had to fund Paul's full residential care under the PHDA. Instead, in those years, she bore the full burden. She wants now to be paid for her qualifying services to Paul at the rate the Ministry was then willing to pay external providers.
The Ministry contends however, that Mrs Spencer's claim is not for qualifying services, which it ever funded under its home based support services policy or practice before the 2013 amendment. Nor is it for the qualifying services for which she is paid now. Her claim is for a carers' wage for Paul's full residential care; a distinct form of support, under a different policy, catering for disabled persons whose families are unable to or will not support them, lying beyond the Tribunal's liability finding and this reference.
The Ministry puts in issue whether the Tribunal ever had the jurisdiction to receive and resolve Mrs Spencer's claim. On an application it makes under the HRA, it also contends that Mrs Spencer ought to be denied damages. She now benefits under the funded family care policy the 2013 amendment authorises. Moreover, her claim is not for discrimination she alone suffered. She seeks a remedy for generic discrimination. There are other actual and potential claimants. Her claim has wide implications, especially fiscally. Finally, the Ministry puts in issue her pecuniary loss calculation and denies she has any claim for aggravated damages.
This appears to be the first time that the Tribunal has referred the issue of remedy to this Court. It is certainly the first time that the Tribunal, and this Court, have ever had to consider what remedy, if any, should be given for generic discrimination under a departmental policy or practice governing the grant of benefits, and payments made, under a statute to assist disabled persons.
The Tribunal's remedy reference to this Court, furthermore, does not rest on its own assessment of liability in Mrs Spencer's case. The Tribunal's liability finding rests on its decision in an earlier case, the Atkinson case, and related decisions of this Court and the Court of Appeal in that case and then in this case. We begin there.
In 2002 the Ministry of Health began, under its home based support services policy or practice under the PHDA, to fund 1.5 hours home support services for Paul each week from an external provider, which it increased to three hours in 2004. In 2002 the Ministry also began to fund between 25 – 52 carer support days each year for Mrs Spencer, to give her respite, during which Paul was cared for by others.
Throughout those years the Ministry never paid Mrs Spencer for her support of Paul. In its policy or practice the Ministry assumed that, as Paul's mother, she would naturally support him to the extent she did. Its responsibility under the PHDA, it considered, was confined to funding those support services to which Paul was entitled, which Mrs Spencer could not, or would not provide him. Its obligation was to meet only his unmet needs.
Mrs Spencer, in a letter she wrote to the Prime Minister on 22 December 2001, contended that she ought to be recompensed for supporting Paul as completely as she then did. She did not, however, take up this present issue under the PHDA until 26 September 2007 when she complained to an officer of the Human Rights Commission, a senior mediator, that WINZ had been unjustifiably discriminatory in denying her funding.
The senior mediator saw Mrs Spencer's complaint as lying against the Ministry of Health and, as she then said, the Ministry had not proved willing to mediate such claims in the past. That being so, she said, the Commission was unable to help Mrs Spencer, whom she referred to the Director of Human Rights Proceedings, Robert Hesketh. It was he who alerted Mrs Spencer to the claim then before the Tribunal brought by the nine Atkinson claimants, seven parents of disabled children and two disabled children; a claim, he said, that it was then too late for her to join.
On 8 January 2010 the Tribunal upheld the Atkinson claim. 2 It held that the Ministry's policy or practice of paying external providers to supply support services to disabled persons in their family homes, and declining to pay family members willing to supply those services, was unjustifiably discriminatory under the New Zealand Bill of Rights Act 1990.
The Tribunal made a consistent declaration but otherwise reserved the issue of remedy. This decision was twice affirmed on appeal. 3 Then there was a further development. The Government elected not to appeal to the Supreme Court the Court of Appeal's Atkinson decision, dated 14 May 2012. Instead on 20 May 2013 the legislature amended the PHDA as from the following day.
Part 4A, which the amendment introduced, governs funded family care. It affirms that family members are not generally entitled to payment for supporting their disabled family members. 4 It validates the Ministry's then home based support services policy or practice, which the Atkinson cases had held to be discriminatory, and others analogous. But it also authorises qualifying family caregivers to be paid for their services; 5 the funded family care policy from which Mrs Spencer now benefits.
The 2013 PHDA amendment precluded the Tribunal and any Court from hearing, or continuing to hear or to decide, any civil proceeding on any complaint of unjustifiable discrimination made after 15 May 2013. 6 However, it permitted the Atkinson claim, then awaiting a remedy hearing, to be resolved by the Tribunal. It
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