Under the current Funded Family Care policy, which funds family members to care for disabled relatives, the disabled person is considered to be the employer of their carer, despite often lacking the capacity to effectively manage the employment relationship. Many requiring such care have considerable disabilities and often severely diminished capacity to make decisions.
Since the government rolled out the Funded Family Care policy in 2013, it has been the subject of ongoing litigation, relating to both the way in which work and pay is calculated and the problematic requirement that the disabled person be the employer of their carer.
In 2017, following an unsatisfactory funding assessment, carer Diane Moody sought a judicial review of the decision. Although unsuccessful in the High Court, the Court of Appeal allowed her appeal, setting aside the decision granting a maximum of 17 hours of weekly Funded Family Care and requiring the Ministry of Health to reassess the funding decision in a manner consistent with the purposes of the New Zealand Public Health and Disability Act 2000 and the content of the Funded Family Care policy.
Interestingly, the Court noted that the language of employment used throughout the policy to describe the arrangement between the Ministry of Health, the disabled person and the carer was accepted by the Ministry to be:
“a mere fiction which is not subject to the Employment Relations Act 2000, and that many persons with disabilities are so impaired that they do not have the necessary capacity in law to employ another person” .
Before an employment relationship is set up between the disabled person and their carer, they must first subject themselves to an invasive needs assessment that categorises the type of care the disabled person requires and quantifies the amount of hours required to give that care. The disabled person, as employer, is effectively told how many hours they can employ a family member for, how much they can pay them and under what conditions. Once this is established, the disabled person and their carer must sign an employment agreement. The disabled person must pay ACC levies, KiwiSaver and any associated taxes.
In an attempt to make the requirements for employers under the Funded Family Care package accessible to disabled people, the Ministry of Health released an ‘easy read’ guide to Funded Family Care, written in plain English and supported by pictures. However, where the disabled person has an acute intellectual disability, the guide will be of no use and does not remedy the fundamental issue of the fictitious employment relationship. The guide also notes that, in order for the Ministry to check that the disabled person is receiving an adequate amount of care, the disabled person – as employer – should make sure that the support they are receiving matches what is recorded in their service plan and keep a record of payments made to their family carer.
Clearly, the Ministry has a substantial amount of control over the employment relationship between the family carer and the disabled person. Despite this, the Ministry insists that the disabled person is the employer of their family carer. This puts the carer in a difficult situation if issues arise. Who are they to approach if the home where the disabled person is being cared for is unsafe? Who is responsible for ensuring that that is remedied? Who does the family carer approach when requesting leave?
In Moody’s case, the Court of Appeal expressed their “unease” that the statutory instruments governing funding eligibility for disability services “verge on the impenetrable, especially for the lay person” . The complex process, including the confusing employment relationship required is, from the outset, a barrier for accessing funding, evidenced by the number of people receiving Funded Family Care. At present, only 392 people – a quarter of the 1,600 who thought they’d be eligible when the policy was introduced – receive Funded Family Care.
In September 2018, Moody specifically raised the matter of the employment relationship with the Employment Relations Authority, seeking clarification from either the Employment Relations Authority or the Employment Court as to whether she, as an employee, was in an employment relationship with her son or the Ministry of Health. She argued that, despite the concessions from the Ministry of Health in the Court of Appeal, the Funded Family Care policy continued to insist that her intellectually disabled son was her employer. Although the Authority Member was satisfied for the matter to be referred to the Employment Court, the parties reached a confidential settlement and the question remained unanswered.
This question has been raised again in October this year. An independent disability advocate has filed papers with the Employment Court seeking a declaration that the employment relationship for family carers of family members living disabilities is between the carer and the Ministry of Health, not between the carer and the disabled person. In deciding on the matter, the Employment Court will hopefully also provide clarification as to the nature of employment relationships and the capacity required to form them.