New legal bid in disability funding battle
A mother’s four-year battle to access carer funding for her severely dependent, intellectually disabled son has crossed over into the Employment Court. The case could potentially impact on funding and employment arrangements in the wider disability care sector. Teuila Fuatai reports.
Solo parent Diane Moody never wanted to be referred to as her son Shane Chamberlain’s employee.
Moody, who has looked after 51-year-old Shane all his life, says the employer-employee relationship was something forced onto the pair by the Ministry of Health.
“It’s never, ever been about the money, but when they do it like that, when they make you become your child’s employee - who by the way can’t actually be an employer because he doesn’t have the mental capacity to do that - it just makes you want to drop the whole thing,” the 76-year-old said in a previous interview with Newsroom.
Moody is referring to the employment arrangement required under the Ministry of Health’s Family Funded Care policy. Designed to enable funding for disabled children who live at home and are cared for by their parents, the policy has been a point of major angst for Moody - and a raft of other similar-placed parents - trying to claim what it says they are entitled to.
Moody, whose Court of Appeal case with Shane successfully highlighted the problematic nature of the policy in February this year, has still not reached a settlement with the Ministry of Health over how much funding she and Shane should get. After seven months of negotiations, Moody has sought to have the boundaries of her “employment relationship” tested by the Employment Relations Authority and the case is headed to the Employment Court.
Specifically, she is asking for a “number of declarations about whether she is in an employment relationship with her son...or with the Ministry of Health that provides funds for her to provide care for Shane.
In a new determination, authority member Robin Arthur laid out why Moody’s case would bypass the normal process of investigation by theERA, and go straight to the Employment Court.
Drawing on the Court of Appeal decision for context, Arthur pointed to the Crown’s then-admission that the “relationship between the person with disability and the family carer….is a mere fiction which is not subject to the Employment Relations Act”. It also noted “that many persons with disabilities are so impaired that they do not have the necessary capacity in law to employ another person”.
Despite this, Moody has claimed that the Ministry - in failing to change how it operates the Family Funded Care policy - still treats her as an employee of her son. This has been backed up by a statement from Shane’s welfare guardian and legal advocate Jane Carrigan to the authority, Arthur said.
He also explained how Moody’s claims “easily met” the Court’s legal-test threshold for cases: “It involves fundamental questions about the nature of the employment relationship, how it is formed and what capacity is required to be an employer or meaningfully form an employment relationship”.
Importantly, Arthur highlighted how the case could impact other families like Moody and Shane, as well as non-familial caregivers who were technically employed by a disabled person receiving funding from the Ministry.
The “potential impact” on the latter employment arrangements may attract interest from organisations like the care workers' union E-Tū and the Council of Trade Unions, Arthur said. Those organisations can be heard in the case as interveners on the wider policy and employment law issues if they wished, he said.
Arthur also touched on the role of the Ministry of Health, which would likely be named as a respondent in an amended claim from Moody to the Employment Court.
“Even if that were not so, I anticipate the Ministry would at the very least seek to be heard as an intervener," he said.
Read more: A humiliating and impenetrable system
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