There is no doubt that Christine Fleming and Peter Humphries are courageous. They have fought their way through the employment jurisdictions to the Supreme Court, which late last year confirmed that they were indeed employees.
Ms Fleming and Mr Humphrys are even more courageous in that they have taken on the task of full-time care for their respective adult disabled children. Ms Fleming’s son Justin was born in 1981. He is physically disabled as a result of a chromosomal condition. The principal consequence of his condition is physical frailty. This has affected his ability to take care of himself. Justin also has a moderate intellectual disability. Mr Humphrys’ daughter Sian was born in 1988. She was diagnosed with a congenital condition as a young child. Sian does not have verbal language and, while not physically frail, needs constant care. Amongst other matters, she needs someone to accompany her outside and has no road safety awareness.
It had been government policy that funding for disability support services could not be used to pay for care provided to disabled people by family members with whom they lived. In 2012 the Court of Appeal in Ministry of Health v Atkinson found that this policy was discriminatory. Non-family carers were paid for caring for disabled persons but family carers, providing the same care, were not. As a result the Funded Family Care scheme was introduced in 2013 and run by the Ministry of Health | Manatū Hauora. Then a later scheme, the Individualised Funding Scheme, was introduced in 2020.
Ms Fleming originally received a domestic purpose benefit and stayed at home to care for Justin. When she became aware of the Funded Family Care scheme she applied for funding. The scheme provided for funding for a maximum of 40 hours a week with provision for an extension. Ms Fleming would have accepted funding based on the 40 hours figure but was offered, initially, 15.5 hours and later, 22 hours. She declined the offers primarily because they were insufficient. Since 2021, Ms Fleming has been funded under the Individualised Funding scheme. Mr Humphreys’ care of Sian was funded under the Funded Family Care scheme from 2014 to 2020, after which he received funding under the Individualised Funding scheme.
Ms Fleming and Mr Humphries each brought proceedings in the Employment Court claiming that, in their full-time care for their children, they were “homeworkers” of the Ministry. Section 6 of the Employment Relations Act makes it clear that the definition of “employee” includes a “homeworker”. A “homeworker” is in turn defined as “a person who is engaged or employed by any other person to do work for that other person” in a home.
The Employment Court found that Ms Fleming and Mr Humphrys were both homeworkers. That Court also concluded that the correct calculation of wages for Ms Fleming should reflect her hours of work, applying the test for what constitutes work as set out by the Court of Appeal in Idea Services Ltd v Dickson. That case concluded that Mr Dickson was “working” for the purposes of the Minimum Wage Act when employed on a “sleepover” in a community home.
The Court of Appeal overturned the Employment Court’s decision in relation to Ms Fleming, concluding she had not been an employee of the Ministry. However, the Court of Appeal confirmed that Mr Humphreys had been engaged by the Ministry as a homeworker during the earlier period when he was receiving funding under Funded Family Care. That scheme required an employment agreement so, where Sian did not have the capacity to enter into such an agreement, the Court accepted the Ministry was the employer. But the Court overturned the Employment Court’s decision that Mr Humphreys was an employee of the Ministry when funded under the Individualised Funding scheme.
The Supreme Court disagreed and unanimously allowed Ms Fleming and Mr Humphreys appeals, declaring that they were employees.
The Supreme Court noted that the definition of a “homeworker” was introduced to provide protection for vulnerable workers working from home and was consistent with the Convention on the Rights of Persons with Disabilities. When viewing the real nature of the arrangements objectively and in context, the combination of relevant factors meant Ms Fleming was engaged as a homeworker by the Ministry. The Supreme Court concluded that the Ministry’s offer of Funded Family Care was wrongly calculated and unreasonable, if not unlawful, due to the number of hours offered where it was accepted that Justin required care and supervision 24 hours a day, seven days a week.
In relation to Mr Humphreys, the Supreme Court considered whether Mr Humphreys ceased to be a homeworker when his funding transitioned from payments under the Funded Family Care scheme to the Individualised Funding scheme. Under Individualised Funding the services of family carers could be purchased using the funding provided. Disabled people who received this funding were encouraged to have an agent to manage the purchase of these services. As Sian does not have the capacity to appoint an agent to manage her care, and Mr Humphreys could not make the relevant decisions on Sian’s behalf, Mr Humphreys remained a homeworker employed by the Ministry.
It is understood that thousands of carers may be impacted by this decision. The Minister for Disability Issues, Louis Upton, has said she is seeking advice on the Supreme Court's decision. That no doubt is “government speak” for “how do we get around this”. Possibly the only salvation for Ms Fleming and Mr Humphrys’ hard won recognition as employees is that this is an election year. Read more....