The Nation this weekend is telling the story of family carers of disabled adult relatives and the pretty shabby way they've been treated over the years. And it looks like Sam Lotu-liga just doesn't want to talk about that. 

[Make sure you see the update at the end!]

Back in 2013, after being told by the Court of Appeal that it was acting unlawfully, the National Government passed the Public Health and Disability Amendment Act 2013. Its purpose was to provide a statutory basis to allow for the payment of family members who look after their disabled adult relatives. But it also included a provision that tried to stop anyone who thinks that whatever policy the Government may create under that Act is unlawful from going to court to challenge it.

When this first was enacted, I wrote about it in a post titled "I think National just broke our constitution". That still remains, I think, the most read thing I've ever written in any format. What the government did - explicitly prevent the judiciary from ensuring that government policy is consistent with the laws of the land - was pretty jaw-droppingly outrageous.

But it wasn't the end of the story. Because as a mother who acts as caregiver for her disabled adult daughter explained here, the policy on paying family carers that the Government adopted under its new law just wasn't very good. A review of that policy carried out in April last year, for example, found that "only 191 adult disabled persons nationwide were accessing [the available payments] (compared with 1,600 forecast)."

What is more, the policy adopted only applied for the future - it didn't propose to pay family carers for the work they had been doing for past years. And so a Ms Spencer fought the Government back through the courts, arguing that nothing in the 2013 law prevented her from being paid for the years of care she'd given to her adult disabled son. The Court of Appeal emphatically agreed with her, leading to a subsequent High Court decision awarding her some $207,000.

Why am I now recounting this story to you again? Well, it's an important part of our recent political and constitutional history. I think the 2013 legislation was the worst law that New Zealand's Parliament has passed since (at least) the Foreshore and Seabed Act 2004. Such things shouldn't be sent to the memory hole.

Furthermore, it's an issue that is still a live one today. There's lots of families caring for disabled adult relatives who either aren't accessing the payments the Government grudgingly made available because the policy doesn't work very well, or if they are accessing these, are being paid only a minimum wage for work that private providers get in excess of $20 an hour to perform.

And so I'm very glad that Newshub's The Nation is telling the story of this law and its aftermath this weekend (sneak promo teaser here). It looks like it features Sam Lotu-liga walking out on an interview rather than defend his Government's actions, and it just may also include me mounting my high white horse and waxing pontifical. Hard to know which is the more ridiculous, really.

So make a date to watch it - TV3 at 9:30am this Saturday, repeat at 10:00am on Sunday. 

[Update: Or you can watch the clip here right now!]

[Update 2: TVNZ's Sunday programme has its own story on the struggles of another family carer, Cliff Robinson, here - it's a good companion piece.]

Comments (6)

by Ian MacKay on November 24, 2016
Ian MacKay

Outrageous!

by Rosemary McDonald on November 25, 2016
Rosemary McDonald

Thank you Andrew.  

ianmac drew my attention to this post over on The Standard....https://thestandard.org.nz/open-mike-25112016/#comment-1265593

Truly,  your continued interest in this is issue is appreciated.

 

by Antoine on November 25, 2016
Antoine

Bad treatment of good people

What is going through the Govt's head here? Is it simply stinginess or is there something more principled (*) underlying it?

A.

(*) Even if the principle isn't one that we agree with

by Andrew Geddis on November 25, 2016
Andrew Geddis

Is it simply stinginess or is there something more principled (*) underlying it?

I had a go at trying to get into the Government's mindset here and here. In that latter post I suggested that:

for the National Government, caring for a disabled family member is a duty that ought to be undertaken because that's what families are all about. It's work that is done out of love and the human bonds of commitment. The State may help families out to some extent when they undertake such care (provide respite carers so you can have a time out, or the like), but it's only where there is no family around (or willing) to look after a disabled individual that the obligation then falls on the State to pay someone to do so.

However, the courts have looked at this issue and said (in essence), "hang on - if the State has recognised it has a general background obligation to pay for carers for disabled individuals then the State can't rely on the bonds of love and human commitment simply to reduce the overall cost to the public purse. Not paying family members, just because they are family members, is unjustified discrimination, and the law says that the State can't act in such a way."

Which means there's a basic clash of perspectives here. The Government takes what we might call a communitarian view of the matter - families have duties that they are expected to perform precisely because they are families. The courts takes what we might call a rights-centered approach - the individuals who are doing the care work have a right to be treated like other individuals who are doing care work, and so if some are paid then all should be paid. And because each side is looking at this matter through a different lens (as it were), it makes for an unbridgable divide in perspective. 

by Antoine on November 25, 2016
Antoine

Ah yes, I read those posts at the time and half forgot in the intervening time, sorry. Thanks for reproducing

A.

by Rosemary McDonald on November 25, 2016
Rosemary McDonald

To add to what Andrew said....a family member can choose NOT to provide supports,  even if living in the same house.  In that case,  the MoH will (mostly) provide funding for the care of the disabled person.  The resident family member who chooses not to provide the care is free to work outside the home...and suffers no financial penalty for not taking responsibility for the care of their loved one.

A resident family member who does provide some or all of the supports is may receive up 40 hours per week at minimum wage and is not allowed to have paid work over and above the 40 hours per week,  or,  can go on the Supported Living Payment or another WINZ benefit.  The caring family member is financially penalised for providing the care.

The Part 4 amendment to the PHDAct states...

 "The purpose of this Part is to keep the funding of support services

provided by persons to their family members within sustainable
limits in order to give effect to the restraint imposed
by section 3(2) and to affirm the principle that, in the context
of the funding of support services, families generally have
primary responsibility for the well-being of their family members"

 

What scares me more than a little is that the Government could,  at any time,  say...if you are a  (non-ACC)disabled person and you are living as part of a family...you get NO funding whatsoever for your care.   "See! We legislated for this back in 2013!"

Great way of reducing the Health spend.

People must be aware that ACC pays family carers.  They will try to impose a 'natural supports' measure when assessing for hours of funded care...but a clever advocate/lawyer can fight that.  Fight it,  because ACC legislation gives entitlement to the client.  Miserly of Health disabled are entitled to nothing.

Some areas of ACC are NOT funded through levies.  They are funded through the tax take,  just like Health.  These are the Non-earners and Treatment Injury accounts. The usual justification for the difference between ACC and MOH supports is the 'its funded through levies' argument....yet ACC clients under the taxpayer funded accounts have the same legislated entitlements as the other clients.

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