Ministry of Health unlawfully refused to pay carer

Margaret Spencer with her son Paul, as they arrive at the High Court. Photo / Brett Phibbs

The Ministry of Health acted unlawfully in refusing to consider paying a mother for the care she gives her Down Syndrome son, the High Court has ruled.

The court has now ordered the ministry to consider paying Margaret Spencer, who has looked after her 44-year-old son Paul for the past 25 years of his adult life.

Ms Spencer began fighting for caregiver payments more than a decade ago.

She thought her battle had come to an end when the Court of Appeal last year upheld a Human Rights Review Tribunal finding that excluding payments to carers of disabled family members was discriminatory and in breach of human rights.

After the court's ruling, Ms Spencer applied to the Ministry of Health for caregiver funding.

However, the ministry refused to consider her application because it had earlier sought an order suspending the tribunal's finding.

Ms Spencer sought a judicial review of that decision in June.

In a written judgment, delivered today, chief High Court judge Justice Helen Winkelmann found the ministry acted unlawfully and in breach of Ms Spencer's rights by refusing to consider her application for funding.

Justice Winkelmann made an order setting aside and invalidating the tribunal's suspension order.

She also ordered the ministry to consider Ms Spencer's application for funding within the context of its existing disability services policy - but without regard for the parts of the policy the tribunal had deemed unlawful.

Justice Winkelmann also opened the door to compensation for Ms Spencer.

Ms Spencer's case had been singled out in Budget day legislation, passed under urgency in a single day, which prevented carers from seeking judicial reviews in the future.

Her legal team sought an interpretation of the legislation that would allow Ms Spencer, and others in her position, to be awarded compensation for past wrongs due to the ministry's unlawful policy.

Justice Winkelmann declared Ms Spencer could not be precluded from joining proceedings for compensation.

Ms Spencer had sought to be added as a plaintiff to the tribunal's original case in 2007, two years after proceedings were brought before the tribunal, but was told she was too late to join.

The court said all parties were in agreement that there should be no order as to costs.