Supreme Court hears case on employment status of family carers

Peter Humphreys cares for his intellectually and physically disabled daughter Sian. Photo / Sylvie Whinray

• Family carers Christine Fleming and Peter Humphreys are asking the Supreme Court to recognise their work caring for severely disabled children.
• The case challenges a Court of Appeal ruling last year that ruled they weren’t homeworkers and were ineligible for benefits such as holiday pay and sick leave.
• This is the latest in a series of cases by family carers who say the system is unfair.

The father of a severely disabled daughter was never told his employment status was changing when the Ministry of Health ended the scheme he was being paid under, a court has heard.

Today is the second day of the Supreme Court proceedings considering the employment status of family carers.

The case is challenging a Court of Appeal decision that ruled two parents, Christine Fleming and Peter Humphreys, who each care for their severely disabled adult children, were not home workers.

Therefore, they weren’t entitled to the same protections of an employment relationship as other workers in care homes.

At issue is whether the pair was “engaged, employed or contracted” by the Ministry of Health as home workers.

Yesterday the court considered the Flemings’ case.

Christine Fleming cares for her high-needs son Justin but the Court of Appeal ruled she wasn’t a homeworker as she’d turned down the ministry’s funding, arguing she was better off on a benefit.

In April last year, the appeal court ruled Humphreys was classified as a homeworker during the six years he received Funded Family Care (FFC) - which allowed a disabled person to employ an eligible family member - while caring for his daughter Sian who also has very high needs.

But the court ruled he lost his homeworker status in 2020 when FFC was discontinued and replaced with a new stream of Individualised Funding called Resident Family Carer (RFC), which they said was at arm’s length to the ministry.

Today Humphreys’ lawyer Peter Cranney told the court his client received two letters from the ministry, advising that FFC was ending and offering him the possibility of individualised funding or being paid through a contractor.

Cranney said the letters were essentially about funding.

He said Humphreys, who’d spent years working at home, carried on caring for Sian, as he’d done for years.

“In this particular case, he just continued to do the work and they paid for it,” he said.

But Sally McKechnie, who is representing the Attorney-General, said the Court of Appeal got it right in ruling Humphreys wasn’t a homeworker under IF.

When the ministry wrote those letters, it considered he was an employee of his daughter Sian, rather than a homeworker, she said.

She said the arrangement between Humphreys and the ministry was a funding one, rather than an employment relationship. It was up to Humphreys, as Sian’s father, to decide how his daughter was cared for.

She said the ministry didn’t want to be telling families what to do, or step into an employment relationship and impose obligations on them. Instead, the ministry wanted to empower families, she said.

The case finished today with the court reserving its decision.

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.