Family carers lose employment status after successful Govt appeal

Two parents victorious in the Employment Court have had the decision to count them as employees of the Government for the work they do in caring for their children, overturned.  

The Court of Appeal has released its judgment following a lengthy deliberation since the final day of the hearing was held more than a year ago.  

Christine Fleming and Peter Humphreys both won separate Employment Court cases which ruled the parents were “homeworkers” and, because they could not be employed by their children due to their intellectual capacity, they were employed by the Government. 

The Government appealed and the two cases were heard together in November 2022 and March 2023.  

The court has now said Fleming should not have been considered a homeworker because she was supported by a benefit (Domestic Purposes Benefit and then later the Supported Living Payment) and not Funded Family Care. 

Funded Family Care operated from 2013 and 2020 and allowed for disabled people to employ family members to care for them, something that had not previously been allowed.

Fleming had not accepted Funded Family Care because she believed she received money via the benefit.

The court found even though the Ministry of Health knew her son required full-time care and that Fleming was providing that care, she had never been “engaged” by the ministry to undertake this work. 

“For most of the relevant period when Ms Fleming was receiving the [Supported Living Payment], the funding was indirect, with the benefit provided to allow Ms Fleming to remain at home to care for [her son] in a general sense. There was no specific point at which it was possible to identify a change in Ms Fleming’s status from receiving funding indirectly to being engaged as a homeworker.  

“As a result, awareness of [her son’s] needs and the fact that Ms Fleming was meeting those needs could not, in itself, amount to engagement for the purposes of section 5 [of the Employment Relations Act].”

A homeworker under the Act means “a person who is engaged, employed, or contracted by any other person to do work for that other person in a dwellinghouse”.

The Court also decided the Employment Court had placed too much weighting on the Convention on the Rights of Persons with Disabilities and the judge had erred by taking article 19 of the Convention to mean the Government had an obligation to care for disabled adults.  

“His health, wellbeing and ability to participate in the community became (from a legal perspective) the responsibility of the State. … it was known that he had to be cared for and that the State had that obligation,” the Employment Court decision said.

“The work that Ms Fleming did, and which the ministry was aware of, allowed [her son] to remain in the community. That was and is of benefit to the ministry and is consistent with meeting its obligations under both the [law] and the Convention.

But the Court of Appeal rebuffed that: “We agree with the Crown that the judge overstated the nature of the obligation in that under the Convention, a person with disabilities does not become the responsibility of the State.”

In Peter Humphreys’ case the court decided the Ministry of Health much have “misunderstood or misinterpreted” the terms of Funded Family Care because his daughter should never have been approved for it.  

The court decided it was never the intention for people without capacity to take on the obligations of an employer, and for those who lacked this capacity they could have accessed the support visa a welfare guardian.

“The terms on which FFC was offered had to be genuine acceptance by a person with the capacity to understand the offer or a welfare guardian authorised to made decisions for that person.

“If the person has neither, acceptance of the terms offered, which was necessary to access FFC funding, would be absent. Ms Humphreys lacked the capacity to understand and agree to the terms being offered and she did not have a welfare guardian. She therefore could not accept FFC funding or enter into an employment contract as required.” 

However, she did receive the funding, something the court decided the ministry allowed due to the “exceptional circumstances”. 

The court decided that while Humphreys was receiving Funded Family Care, the ministry was her father’s employer – not her – because he had been sufficiently “engaged” by the ministry to do this work, despite it being unintentional on its part.

“We acknowledge that engagement (or contracting) of the family carer as a homeworker by the MOH was not the intended outcome … However, it was open to the MOH to decline the funding, either altogether or pending an order under the [law to obtain a welfare guardian] being obtained. It did not do so. It went ahead and funded Ms Humphreys’ care by Mr Humphreys.  

“We accept that it did so because it misunderstood or misinterpreted the [terms]. Nevertheless, all the elements needed for engagement or contracting were satisfied.” 

However once Individualised Funding replaced Funded Family Care, this “engagement” no longer existed.  

“When Mr Humphreys selected IF for his daughter, he also knew that Ms Humphreys could not be his employer because of her lack of capacity. And while there was no prohibition on a nominated agent also being a support carer, Mr Humphreys must have known that assuming both roles would leave him without an employer in any real sense.” 

The decision is the latest in a long-running legal wrangle over family carers pay and employment status, and it is not the end.

The parties have confirmed they will seek leave to appeal in the Supreme Court.