UN to scrutinise NZ’s disability policy

The Human Rights Commission will highlight 'discriminatory provisions' undermining the care of people with disabilities in New Zealand at the UN next week. Teuila Fuatai reports. 

The Labour-led Government’s pre-election position around rights for people with disabilities will next week come under international scrutiny.

As part of the UN’s review into the state of economic, social and cultural rights in New Zealand, the Human Rights Commission is due to present a wide-ranging submission. And this year, there is special focus on the Ministry of Health’s Funded Family Care policy.

Set up five years ago, the policy - which was intended to enable funding for the care of disabled people in their family homes - has been challenged multiple times in the court system.

Passed under John Key's government, the legislation enabling the policy amended the Public Health and Disability Act.

“The Court of Appeal has observed that the passage and content of [that amendment] can be regarded as being contrary to constitutional law and convention,” the Human Rights Commission says.

“All the then-opposition parties, that now make up the [New Zealand] Government, advised at the time that they would repeal the legislation if they had the opportunity.”

This intrusive and offensive tool’s primary aim is to allow the [Needs Assessment staff] to read down …. a disabled person’s needs thereby reducing their required supports to the basest level.

Currently, a discrimination case involving eight families challenging the premise of the Family Funded Care policy is due to be heard in the High Court next year. Another case, which examined the process used by the Ministry to decide funding amounts, revealed it was breaking a person’s daily needs down so it could assign monetary value to tasks like going to the toilet.

The plaintiffs in that case, intellectually disabled 51-year-old Shane Chamberlain, and his mother Diane Moody, are still fighting for change. Alongside Chamberlain’s welfare guardian Jane Carrigan, the pair believe reform of the “intrusive and offensive” needs assessment process is the only way forward - even after receiving a favourable judgment in the Court of Appeal last month.  

And according to the Human Rights Commission, they are not far off.

During its session next week, the Commission is due to recommend that the Government repeal the “discriminatory provisions” enabling Funded Family Care - before July 2019, making good on its position while in opposition. 

In 2014, a petition was presented to the Health Select Committee advocating a repeal of the Funded Family Care legislation, the Commission says.

“The conclusion of the health committee-Government majority did not address the repeal issue directly, and instead recommended a simpler, more accessible policy.

"However, the minority views of other health committee members supported repeal, and identified ‘serious deficiencies’. The Government is yet to issue any formal statement regarding its position on [the legislation].”

Carrigan, who has spent several years working on Chamberlain and Moody’s case, has tried numerous times to get in touch with Minister of Health David Clark.

On Tuesday, she sent a formal letter to Clark and Attorney-General David Parker calling for serious change.

“This intrusive and offensive tool’s primary aim is to allow the [needs assessment staff] to read down ... a disabled person’s needs thereby reducing their required supports to the basest level,” she states

Shane Chamberlain and his mother Diane Moody. Photo: Teuila Fuatai

Clark needs to acknowledge that Chamberlain and at least 1599 other families - identified in the lead-up to the Family Funded Care policy implementation in 2013 - are legally entitled to receive funding, she says.

“For many families it would save them from despair - these adults and children are very, very difficult to manage and for this reason, finding them appropriate residential care is nearly impossible.  

“The current residential system provided for high or very high-needs people - the majority of whom also have an intellectual disability - is dysfunctional, with many stories of abuse and injury in the last 17 years.

“He [Clark] should stop shoring up the unlawful, tricky, technical and mean-spirited manage of Family Funded Care by his Ministry,” Carrigan says.

Since the Court of Appeal ruled in favour of Chamberlain and his mother, the Ministry says it has been “reviewing” how to better communicate with families applying for Family Funded Care. In its latest needs assessment, it also increased the time it took for Shane to go to the toilet each day to 10 minutes.

“The Ministry does accept the court's view about the difficulty disabled people and their families can have in interpreting aspects of the policy,” Ministry spokeswoman Toni Atikinson says.

“We want our information to be easy to understand and we'll be reviewing how this communication can be improved.”

Meanwhile, Carrigan is yet to hear from Clark or Parker. 

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