Damien Grant: Human tragedy lost in cash rush

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Caring for a disabled relative must be a great burden with the potential to strain a family.

It is, therefore, an act of generosity and enlightened self-interest that some tax money is used to pay a caregiver to provide assistance for those affected.

The Ministry of Health does not pay family members to care for each other, only when an external caregiver is needed. This is where this matter should rest. It doesn't.

The Human Rights Act, an asinine piece of legislation, makes it illegal to discriminate against people on the basis of their family status. Naturally, some idiot went to court.

The Court of Appeal found, correctly, that it is a breach of the Human Rights Act and the Bill of Rights for the Ministry of Health to pay one person to care for a disabled person but to refuse to pay family members the same rate for doing the same work.

The ministry should have ended the discrimination by refusing to pay anyone, but this obvious and elegant solution has, sadly, been overlooked.

A Treasury paper estimated there were 5400 individuals who would prefer to have a family member as their main provider and estimated an annual cost of complying with the court's direction as high as $75 million.

Treasury recommended and Parliament adopted a targeted scheme in which only those under severe stress, around 1600, would receive $23 million a year in funding. Further, these family members would be paid at a rate close to the minimum wage and not what an external provider can expect to earn.

Because the ministry would pay family members a lower rate, the Human Rights Act was still being breached so Parliament has included a section in the Public Health and Disability Amendment Act preventing challenges on the grounds of discrimination.

Law scholar Professor Andrew Geddis is critical of Parliament passing a restriction on the courts' ability to challenge a government's decisions. Geddis does raise a relevant constitutional issue but misses a much larger one: how did the Government lose the original court case?

What began as an act of compassion has resulted in families suing when there is no contract between the Government and the families concerned.

The human tragedy of those involved obscures the principle at stake. The Government has done nothing wrong, has committed no malfeasance, has not acted in bad faith or with any dishonest intent; yet it has been forced to pay thousands of individuals millions of dollars because it is unfair that someone else was getting more.

We have arrived at a place where parents are suing the Government demanding to be paid for caring for their children. And winning.