There's none so deaf as they that will not hear

The saga of family carers for the severely disabled is still being written, despite Parliament's attempts to put a full stop on it. It makes for a really interesting constitutional tale.

The story of the struggle of family carers of severely disabled individuals to get paid for the work that they do and the various court decisions, governmental policies and legislative enactments that it has inspired makes for a truly fascinating case study in how New Zealand's constitutional processes work. I should say at the outset that it is, of course, much more than this - it involves real people with real lives who are deeply affected by the issues at stake. So let's keep that in mind as we go along, and I'll return to it at the end.

(As a bit of background, I posted on the issue here in what is probably the most-read thing I've ever written ... to summarise that summary, the Court of Appeal in Ministry of Health v Atkinson found that a policy of not paying family caregivers for their work was unlawful because it unjustifiably discriminated against them on the basis of their family status (non-family members were paid for such work.) The Government responded with legislation (the New Zealand Public Health and Disability Amendment Bill (No 2)) that allowed some family members to get paid, but also sought to stop any further legal challenges to this policy.)

I think this issue is so fascinating because it gives a great insight into the different institutional perspectives that our branches of government take on issues, as well as brings into sharp focus the respective roles that each has and the way they respond to each other. It also does so in ways that show the nuance and subtlety of constitutional issues, allowing us to move beyond bumper-sticker slogans such as "Parliament is sovereign" and the like.

First of all, there is a fundamental conflct between the current National-led Government's views on the issue of paying family members for their work in looking after disabled individuals and how the courts see it.

You can see this conflict manifest in the various Cabinet Papers that led to the legislation being enacted. Consider, for example, the Cabinet Social Policy Committee's proposed response to the Atkinson decision, which talks about the "fundamental assumption" of disability support policy in New Zealand; "that family carers are 'natural supports' and are supported to carry out this role, rather than being paid to do so" (at para 13). You can also see it in the Attorney-General's rather waspish NZBORA s.7 report on the legislation, where he:

  1. criticises the Court of Appeal for straying outside of its appropriate role and making policy decisions that impact on the Crown accounts (para. 11); 
  2. states that paying all family members for looking after their would "undermine the fundamental tenet that the Government's primary role is to support families in their role" (para. 12);
  3. and so says that the Government would have been quite within its rights to merely overrule the Court and state that there is no unlawful discrimination involved in refusing to pay family members for their caregiving role.

So, 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. 

Of course, the National-led Government thought that it had resolved this clash back in 2013 when it used its parliamentary majority to pass the New Zealand Public Health and Disability Amendment Bill (No 2) into law. To remind you, this legislation did a couple of things. First, it set up a legal framework under which some (but only some) family caregivers could be paid for looking after disabled family members. Second, it said that this framework was it in terms of how family caregivers could be paid and that the courts (as well as the Human Rights Review Tribunal) weren't allowed to stick their noses in and investigate whether it was consistent with human rights.

And that, the Government most probably thought, was that. Because once it had utilised Parliament's sovereign lawmaking powers, then the courts are bound to recognise and apply the resulting law. No more pesky findings that the policy of not paying family members for their caregiving role is unlawful, meaning that the Government won't face any more obligations to pay (perhaps quite substantial) amounts out to such individuals. It may be decidedly dodgy from a constitutional point of view, but hey ... what's a constitution for if you can't push it right to the limit?

Except ... not. Because it turns out there's a difference between what the Government thought it was enacting and what the courts have decided was actually enacted. For in a follow-up case, Attorney General v Spencer ( story here), the Court of Appeal has just decided that the legislative provisions that purported to stop the courts examining whether or not decisions to pay family carers are lawful do not apply with retrospective effect. Meaning that the courts can still hear and adjudicate on Ms Spencer's claim for backpay for all the years she looked after her disabled son with no payments. Which, even at the minimum wage, is going to add up to a tidy little sum.

Now, it's pretty damn obvious that when it passed the 2013 law the National Government wanted to put an end to this sort of court challenge. It thought it had created a legal clean slate, limiting its financial obligations to paying some family caregivers in the future under its new policy. However, as the Court of Appeal tells it (at para. 70), "the political context cannot assist where the legislature elects to frame its formal response to judicial decisions in terms which plainly do not reflect the intention now ascribed ot them." And further (at para. 82); "the draconian measures introduced ... to remove rights of challenge for breaches of family care policies said nothing about [past policy] and we cannot be expected to strain the statutory text to remove all retrospective rights of claim arising from [those policies]."

Then (at para. 84) the Court of Appeal gets truly snippy:

Parliament introduced [the New Zealand Public Health and Disability Amendment Bill (No 2)] under urgency without prior notice only one month before Mrs Spencer's judicial review proceeding was heard in the High Court. It contained a number of features that are traditionally regarded as being contrary to sound constitutional law and convention - on the Ministry’s interpretation it has retrospective effect, authorises discriminatory policies, withdraws rights of judicial review and access to the Tribunal and did not go through the normal Parliamentary Select Committee and other processes. While ... the courts must respect and apply [the New Zealand Public Health and Disability Amendment Act (No 2) 2013], like any other legislation, ... if the words have not achieved the result which its promoters intended the courts should not seek to fill the gaps as a means of dealing with inadequate drafting.

In other words, the statute you passed intending to keep us (the courts) out of this area doesn't clearly and unequivocally say that it applies to the past decisions on (not) paying care givers - so we don't have to keep out of deciding the legality of that issue (as well as what remedies should follow from any past unlawful behaviour). Your statute doesn't mean anything until we read and apply it. And we're telling you that if you want to stop courts retrospectively upholding the rights of citizens, you must be absolutely crystal clear that this is what you are about.

Oh ... and nyah, nyah, nyah to you for even trying to keep us out (although that last bit may be a bit of editorial intervention on my part).

Which leaves us in an interesting place. Because what is good for Ms Spencer should (in theory) be good for other family carer claimants who looked after severely disabled individuals before the passage of the New Zealand Public Health and Disability Amendment Bill (No 2) into law. Of whom there will be quite a number, I suspect. Which rather throws the ball back into the Government's court.

Will it bite the bullet and accept that the "rights focused" approach of the courts will have to be adopted, finding the money needed to pay out any retrospective claims that get lodged?

Will it roll the dice and try to take this matter to the Supreme Court, hoping to find (at least) three judges there who will look on its cause with a little more kindness than the courts have done to date?

Or, will it go back to Parliament and seek yet more legislation that contains the sort of crystal clear language that the Court of Appeal demands in Spencer?

Whichever option it takes, there's more yet to come in this little tale of constitutional manoeuvrings. But as we await the next installment, let's also ponder this little fact.

Under the Government's current legal framework for paying family caregivers of severely disabled people (the one established under the New Zealand Public Health and Disability Amendment Bill (No 2)), the NZ Herald reports that only 121 people have qualified to receive it and only 97 families are actually receiving it. Then let's revisit what was said in the House about this policy at the time the law was introduced in 2013:

It amounts to $92 million over 4 years to pay some family members who care for their disabled adult children. Funding will now be available for about 1,600 disabled people with high or very high needs to pay some family members to provide care.

Or not.