Advice to Government over 'discriminatory' Funded Family Care policy to remain secret

The Government is refusing to make public advice tendered by its health officials over whether a controversial disability policy will be revoked, and the legislation underpinning it repealed.

Health minister David Clark, associate health minister Julie Anne Genter and the Ministry of Health said confidentiality was more important than making information public about the review of the Funded Family Care policy, while it is under consideration.

However, it said a review of the policy was on a "fast track" timeline, although no deadline for a decision had been confirmed.

Earlier this year, a group of families fighting to be paid fairly for caring for disabled loved ones called on the Government to repeal the law protecting the Funded Family Care policy.

It followed a Court of Appeal decision that criticised the policy and the Government response to claims, and said it did not want any more challenges to the issue in court.

Legislation enabling Funded Family Care, which excludes spouses and parents with younger children from payment, and limits family carers to the minimum wage, was rushed through under urgency by former Health Minister Tony Ryall in 2013.

Outrage ensued not only at the policy, but at the part of the legislation that barred legal challenges, saying families could not take discrimination claims against it to court.

Families who talked to the Herald described 20 years of living with no payments; living on a benefit despite carrying out the work of a professional carer and being paid for just a few hours when they were essentially working a full-time job.

In its pre-election manifesto, Labour said it would repeal the legislation - Part 4A of the NZ Public Health and Disability Act 2000 - and that it would ensure all family caregivers could "provide and be paid for assessed care for their disabled adult family member".

When the families came forward, Clark and Genter committed to a review, however Labour would not go as far as confirming the law would be repealed.

However lawyers, advocates and families are concerned that officials - who have remained the same while the Government has changed - will convince ministers the law should stay and the policy is adequate.

Lawyer Paul Dale, whose clients Shane Chamberlain and Diane Moody were the subject of the recent Court of Appeal win, said ministry officials had defended their position against the policy strenuously in the past and were unlikely to change their views now.

"Their advice could end up being the same as they've given previously, which would be a shame," Dale said. "It should be straightforward, and it should be kept in the public eye."

However in refusing the Herald's requests and some family members' requests for information, the Ministry of Health's chief legal adviser said the "context" was complex because of its interrelationship with a range of issues, including access to human rights redress, pay equity claims and the impact any change may have on the disability strategy.

He refused to release two legal briefings about the Court of Appeal case; and six briefings provided over two months to ministers.

In a separate email to Dale, Clark and Genter refused to meet to discuss the issue, but reassured him it was "a priority".

"In the meantime, the Ministry has assured us that it is revising its practices to ensure
that family carers and their advocates can understand the current policy better and
access it easier. That work is being done in parallel with the policy review advice," the email said.