New Zealand Public Health and Disability Amendment Bill 2020 214-1

Part 4A generally prohibits the Crown or a District Health Board (DHB) from paying a person for providing health or disability support services to an eligible family member unless the payment is allowed by an applicable family care policy, or, authorised under an enactment (section 70C of the Act).

At the time Part 4A was introduced, the then Attorney-General concluded that it limited rights and freedoms to an extent that could not be justified under section 5 of the Bill of Rights Act 1990 (NZBOR Act). This is because Part 4A:

• confirms that the Crown and DHBs were and are authorised to have family care policies that exclude certain resident family members from being paid for providing support services to family members
• prohibits claims of unlawful discrimination to the Human Rights Commission.

The repeal of Part 4A is intended to: [1]

• ensure consistency with human rights law
• uphold New Zealand’s commitments under the United Nations Convention on the Rights of Persons with Disabilities.

Summary of key events leading to the bill

In the past, the Ministry of Health and DHBs have had explicit policies of not paying family carers. [2] This was based on the principle that families generally have primary responsibility for the wellbeing of their members.

In 2000, a complaint was made to the Human Rights Commission against the Ministry arguing that the Ministry’s policy of not paying some family carers was discrimination on the basis of family status (the Atkinson case).

The following table summarises some of the key events, including in the Atkinson case, which led to the bill.

• its prohibition to a wider range of family members than the Atkinson case and the authorisation of policies that make distinctions on prohibited grounds of discrimination whether or not justified, could potentially be in breach of the non-discrimination right guaranteed by s 19(1) of the NZBOR Act
• the limitation in section 70E (the bar from bringing claims to the Human Rights Commission) could not be justified under section 5 of NZBOR Act

Part 4A of the Act

Rationale for Part 4A

The Explanatory note to the New Zealand Public Health and Disability Amendment Bill (No 2), the bill which incorporated Part 4A in 2013 into the Act, stated that:

In the Family Carers case (Atkinson & Others v Ministry of Health), the Human Rights Review Tribunal declared that the Ministry of Health’s policy of not paying family carers involves unjustified discrimination on the ground of family status under the New Zealand

Bill of Rights Act 1990 (NZBORA). That declaration was subsequently upheld by the High Court and the Court of Appeal.

Responding to the Family Carers case by paying all groups of family carers would undermine the fundamental tenet that the Government’s primary role is to support families in their role and would result in unmanageable fiscal costs to the Government. In the absence of legislation, the Government’s policy would be unlawful and the Government could face a very large number of claims. The only feasible way of managing these risks is through legislation.

Policies in practise

The Regulatory Impact Statement explains how the Ministry and DHB policies have operated in practise under Part 4A:

• the Ministry’s policy applies to disabled people who meet the disability support services eligibility criteria, which is mostly people under 65 with a long-term physical, sensory and/or intellectual disability
• the DHBs’ policies apply to people who have long-term chronic health conditions, mental health and addiction or aged care needs.

Under both Ministry and DHB policies the following are currently ineligible to be a paid carer:

• spouses/partners
• parents of children under 18 years
• anyone under 18 years.

Main provisions of the bill

Repeal of Part 4A

The Regulatory Impact Assessment prepared by the Ministry includes an options analysis for change. The options considered included (among others):

• the partial repeal of Part 4A with a limitation bar for the period 2013 (i.e. the date the Government enacted the 2013 Amendment Act) to the repeal date
• the repeal of Part 4A with no limitation bar and a compensation framework.

Information relating to the cost of litigation for potential discrimination claims between 2013 and the repeal date appears to have been included in the Regulatory Impact Assessment but this information has been redacted.

Clause 4 of the bill repeals Part 4A of the Act in full with no limitation bar or compensation framework.

The bill’s explanatory note explains the effect of the repeal as follows:

• it will remove the discriminatory elements of the current legislation
• it will allow the Crown and DHBs to continue to implement lawful family care policies
• it will enable future complaints about the policies to be made to the Human Rights Commission
• it will allow the Human Rights Review Tribunal and courts to hear complaints.

If passed, the bill will come into force in September 2020 (clause 2). According to the Ministry of Health website, certain changes to the Family Funded Care policies are to be made in advance of this including (among other things):

• edibility will expand to include partners and spouses of children and young persons under the age of 18 from April 2020 for Ministry support services and June 2020 for DHBs
• pay rates for family carers will be lifted from April 2020.

Consequential amendment to Care and Support Workers (Pay Equity) Settlement Act 2017

Section 5 of the Care and Support Workers Act (Pay Equity) Settlement Act defines an “employer” for the purposes of that Act and specifically excludes from that definition those who receive funding from the Ministry of Health or a DHB for care and support services provided to a family member – the example reference to a family care policy under section 70B of the principal Act is deleted by clause 5 of the bill.