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Accident Compensation Cases

Chamberlain v Attorney General (HC, 07/08/17)

Judgment Text

Palmer J
Mr Shane Chamberlain, at age 50, is unable to care for himself. His mother, Mrs Diane Moody, cares for him all day, every day, or 168 hours a week. Shane is her life. Until 2013 the New Zealand government would not pay family members to care for other family members. After the Atkinson litigation the government has funded “personal care” and “household management” services, under the Funded Family Care (FFC) Policy, for up to 40 hours a week. Mrs Moody asked for funding from the Ministry of Health under the Policy, expecting 40 hours funding a week. Various assessments of Shane's needs have estimated the specific discrete tasks involved in his care required as amounting to between 11 and 21 hours a week. The Ministry says the Policy does not include funding for “supervision”. Shane and Mrs Moody challenge the funding decisions as unlawful for inconsistency with the Policy, with the New Zealand Public Health and Disability Act 2002 (the Act), with a substantive legitimate expectation or as unlawful for unreasonableness. They also say measuring Shane's need in terms of time is inconsistent with his dignity. 
The Policy is a legal instrument, under pt 4A of the Act. Although I can understand why Mrs Moody was surprised, I conclude the Ministry's decisions are, legally, within the terms of the FFC Policy. The Policy is designed to fund specific care services, up to 40 hours a week, rather than full residential care. Supervision is not part of “personal care” or “household management” services in the sense those terms are used in the Policy. That interpretation might be different if there was evidence someone in Shane's position, whose care is provided by a contracted service provider rather than a family member, would receive materially higher funding than Shane. But there is not such evidence, here. Similarly, the Policy is not inconsistent with the Act. The funding decisions are not unreasonable. No enforceable substantive legitimate expectation was breached. I do not consider the Policy is unlawful because it uses time to measure needs. So the challenge fails. 
Funding for the care of Mr Shane Chamberlain 
Mr Shane Chamberlain 
Mr Shane Chamberlain is 50 years old. He is the oldest child of Mrs Diane Moody, who is 75 years old. As a result of birth-related complications, Shane was left profoundly intellectually disabled and paralysed down the right side of his body. In addition he was born with Williams Syndrome, diagnosed when he was 30. 
Mrs Moody's evidence, which is not disputed, is that Shane is incapable of normal day-to-day self-care. He has no traffic sense, could not cross the road or catch a bus on his own, does not have the capacity to work and cannot read or write. Mrs Moody says:1
| X |Footnote: 1
Affidavit of Mrs Diane Moody of 25 September 2015 at [8]. 
“Shane lacks mental capacity in so much as he has no genuine or meaningful understanding of anything other than his most basic likes/dislikes. Shane is fully reliant upon myself, or third party, to provide him with full care and support which includes 24/7 supervision. ”
Shane has always lived with and been cared for by his mother at her home. Mrs Moody and her husband, Shane's father, divorced in 2003. Shane's father died in 2007. Shane was in day care from the ages of 21 to 25 from which his mother withdrew him as a result of a violent assault which caused him trauma. He has been in full time home care since 1992. Mrs Moody says he needs care for 168 hours a week, which is 24 hours a day, seven days a week. 
As Mrs Moody says, “Shane is my life”.2
| X |Footnote: 2
Affidavit of Mrs Diane Moody of 25 September 2015 at [52]. 
Decisions about funding for Shane's care 
The Ministry of Health contracts with providers of needs assessment and service coordination (NASC) services. They determine a person's eligibility to receive disability support services by conducting individualised needs assessments. On that basis they then coordinate services to ensure support needs are met. 
I outline the law and policy relevant to funding of care for people with disabilities later. First, I outline the decisions about funding of Shane's care. They are the decisions under challenge here. Mrs Moody gives a lengthy account of her various frustrations with the bureaucratic processes with which she has engaged, frustrations the Crown acknowledges are readily understandable. But the ins and outs of those are not relevant to the legal issues I have to decide. 
The Taikura Trust is a charitable trust contracted by the Ministry of Health to work with people with disabilities and their carers as a NASC. In May 2014 the Trust undertook a needs assessment for Mrs Moody's application for family funding for her care and support of Shane. Mrs Moody signed off on the needs assessment but she was unhappy with, and confused by, many bureaucratic aspects of this and subsequent processes. 
The evidence of Ms Jan White, NASC National Reviewer, is that she and Taikura were satisfied Shane would be assessed as having “high” disability-related needs and “met the eligibility criterion relating to a ‘high’ or ‘very high’ level of need”.3
| X |Footnote: 3
Affidavit of Janice White of 2 March 2016 at [6]. 
At the time, Ms White supported the initial NASC allocation of total support as 10 hours, 30 minutes per week. Mrs Moody was advised on 27 June 2014 that Shane was entitled to 11 hours FFC per week. 
Mrs Moody was shocked, since she considered Shane required 168 hours of care per week. Amongst the ensuing correspondence was a letter to her from the Taikura Trust dated 30 July 2014, explaining: 
“The criteria for the allocation of FFC support is currently limited to the identified personal care and household management tasks required to support a person's disability. While NASC recognises the 24/7 support that you have provided and continue to provide for Shane, FFC cannot fund support which is not directly related to the provision of personal care and household management tasks. ”
Mrs Moody disputed the assessment. Ms White directed Access Ability Otago, another NASC organisation, to conduct a peer review. On 7 November 2014 Mrs Moody was notified Shane's eligibility had been revised to 19 hours. From September 2015 (backdated to May 2014) Mrs Moody was paid to provide 15 hours per week. The other four hours were provided by an external provider, Geneva Health Care. Mrs Moody is treated by the Ministry as being employed by Shane. She considers does not make sense given his lack of mental capacity, but her counsel, Mr Dale, says that is not something I need to address directly. 
Ms White's evidence is “there are other people who receive up to 40 hours funded care a week” who “have a service co-ordination that reflects a much higher degree of hands-on support or direct close supervision than Shane's needs suggest”.4
| X |Footnote: 4
Affidavit of Janice White of 2 March 2016 at [51]. 
She says that might be because a person needs two carers for all transfers, showering or dressing or needs a person close to them at all times because of risks if they are left alone or need to be turned regularly or require exercise or therapy programmes. 
Mrs Moody, and Shane's litigation guardian Ms Jane Carrigan, have continued to dispute the level of assistance provided. This proceeding was commenced in September 2015. 
In December 2015 the Taikura Trust undertook a further needs assessment at Mrs Moody's request. She was concerned about her own health and wanted to know what would happen to Shane in an emergency. She made an urgent request for Crisis Care, a Supported Living package for Shane, and for a reassessment of the 19 hours of FFC allocation. 
The evidence of Ms Toni Atkinson, Group Manager in the Ministry of Health, is that the further needs assessment was finalised with Mrs Moody's agreement on 9 February 2016.5
| X |Footnote: 5
Second Affidavit of Toni Atkinson of 16 December 2016 at [4]. 
Mrs Moody's evidence is that she signed it on 11 February 2016 but she was expecting further changes in response to her further objections.6
| X |Footnote: 6
Affidavit of Diane Moody of 25 January 2017 at [29]—[30]. 
There was also an annual review of Shane's support plan on 4 May 2016. The final formal support plan of 31 May 2016 contained 30 days of carer support and 12 days of respite per year and 17 hours of FFC and 4 hours of Geneva personal care per week. 
Mrs Moody considers Shane's needs are such that she should be paid for 40 hours of care a week. 
The law and policy of funding care of family members 
The Act and Convention 
The Act is the legislative authority for funding the relevant disability services here. Its purposes are set out in s 3: 
The purpose of this Act is to provide for the public funding and provision of … disability support services, and to establish new publicly-owned health and disability organisations, in order to pursue the following objectives: 
to achieve for New Zealanders— 
the improvement, promotion, and protection of their health: 
the promotion of the inclusion and participation in society and independence of people with disabilities: 
the best care or support for those in need of services: 
The objectives stated in subsection (1) are to be pursued to the extent that they are reasonably achievable within the funding provided. ”
Under s 8(2) of the Act, the Minister for Disability Issues is required to determine a strategy for disability support services, “to provide the framework for the Government's overall direction of the disability sector in improving disability support services”. The second New Zealand Disability Strategy of 2016 expressly adopts, as guiding principles, the Principles of the United Nations Convention on the Rights of Persons with Disabilities (the Convention), which New Zealand ratified in 2008. Relevant articles are: 
Article 1 
The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. 
Article 3 
General Prinicples 
The principles of the present Convention shall be: 
Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; 
Full and effective participation and inclusion in society; ”
Section 10 of the Act empowers the Minister to negotiate and enter a Crown funding agreement with any person, under which the Crown provides money in return for the person providing, or arranging provision of, services specified in the agreement. Section 88 deems acceptance by a person of payment from the Crown or DHB, after notice of the terms and conditions are given, to constitute acceptance of the terms and conditions. It empowers the Crown or DHB to enforce compliance with the terms and conditions as if the person had signed a deed. This is the authority under which the FFC payments are made. But the authority for the FFC Policy itself derives from pt 4A of the Act which was passed in 2013. 
Part 4A 
Before 2013, the Ministry of Health had a long-standing policy or practice of preventing the spouses or resident family members of people with disabilities from being paid to provide them with disability support services. Susan Atkinson and others challenged the policy as unlawfully discriminating on the basis of family status. The challenge was upheld by the Human Rights Review Tribunal and the High Court in 2010 and by the Court of Appeal in Ministry of Health v Atkinson in May 2012.7
| X |Footnote: 7
Atkinson v Ministry of Health (2010) 8 HRNZ 902 (HRRT)Has Litigation History which is not known to be negative[Blue] ; Atkinson v Ministry of Health (2010) 9 HRNZ 47 (HC)Has Litigation History which is not known to be negative[Blue] ; Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 457Has Litigation History which is not known to be negative[Blue] 
In response, in April 2013, Cabinet agreed to allow funding for the parents or resident family members to care for adults with disabilities under the Home and Community Support Services policy. At the same time, Cabinet agreed to sponsor legislation limiting claims arising under the former policy that the courts had found unlawful. The Minister of Health's paper to the Cabinet Legislation Committee stated the Ministry of Justice was likely to advise the Attorney-General that the Bill appeared to be inconsistent with the New Zealand Bill of Rights Act 1990 (Bill of Rights).8
| X |Footnote: 8
Minister of Health paper to Cabinet Legislation Committee, undated, “New Zealand Public Health and Disability Amendment Bill 2013: Approval for Introduction”
The Attorney-General reported to the House his view that the Bill could potentially be in breach of the non-discrimination right guaranteed by s 19(1) of the Bill of Rights.9
| X |Footnote: 9
Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the New Zealand Public Health and Disability Amendment Bill (No 2) 2013. 
Nevertheless the New Zealand Public Health and Disability Amendment Bill (No 2) 2013 was rushed through the House of Representatives as budget night legislation in 2013, without public submissions or select committee scrutiny. This resulted in pt 4A of the Act, entitled “Family care policies”, which came into force on 1 October 2013. Section 70A sets out the purpose of pt 4A: 
Purpose of this Part 
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. 
To achieve that purpose, this Act, among other things,— 
prohibits the Crown or a DHB from paying a person for providing support services to a family member unless the payment is permitted by an applicable family care policy or is expressly authorised by or under an enactment: 
declares that the Crown and DHBs have always been authorised, and continue to be authorised, to adopt or have family care policies that permit persons to be paid, in certain cases, for providing support services to family members: 
stops (subject to certain savings) any complaint to the Human Rights Commission and any proceeding in any court if the complaint or proceeding is, in whole or in part, based on an assertion that a person's right to freedom from discrimination on any of the grounds of marital status, disability, age, or family status (affirmed by section 19 of the New Zealand Bill of Rights Act 1990) has been breached by— 
a provision of this Part; or 
a family care policy; or 
anything done or omitted in compliance, or intended compliance, with this Part or a family care policy. ”
Accordingly, and relevantly: 
Section 70C prohibits the Crown or a DHB paying a person for support services provided to a family member unless payment is “permitted by an applicable family care policy” or expressly authorised by or under an enactment. 
Section 70D(3) provides a family care policy adopted after the commencement of pt 4A may state a number of aspects of payments for support services provided to a family member, including the cases in which payments may be made, the conditions that must be satisfied, the rates and the limits on funding. 
A “family care policy” is said by s 70D(5) not to be a disallowable instrument for the purposes of the Legislation Act 2012 and is defined by s 70B as follows: 
“family care policy, in relation to the Crown or a DHB,— 
means any statement in writing made by, or on behalf of, the Crown or by, or on behalf of, the DHB that permits, or has the effect of permitting, persons to be paid, in certain cases, for providing support services to their family members; and 
includes any practice, whether or not reduced to writing, that has the same effect as a statement of the kind described in paragraph (a), being a practice that was followed by the Crown or by a DHB before the commencement of this Part. ”
The inclusion in the definition of family care policy in (b), of certain practices “whether or not reduced to writing”, is inherently unsatisfactory in terms of the rule of law. The effect of pt 4A is to confer legal status on family care policies which means they must be interpreted as such. It is difficult to interpret a practice that has not been reduced to writing as a legal instrument and it should not be regarded as, or defined to be, one. That is not helped by the power accorded a public servant in s 70F to define the terms of such an unwritten practice retrospectively. Wisely the Crown, in this case, does not rely on any unwritten practice. 
Section 70B also defines “support services” to mean “disability support services (as defined in section 6(1)) or health services (as so defined), or both, being services of a kind that are generally funded, directly or indirectly, through Vote Health”. In turn, s 6(1): 
defines “disability support services” to include “goods, services and facilities” provided to people with disabilities for their care or support or to promote their inclusion and participation in society, and independence” or related to or incidental to that; and 
defines “health services” to mean “personal health services and public health services” which are further defined to mean goods, services and facilities “provided to an individual for the purpose of improving or protecting the health of that individual” and “provided for the purpose of improving, promoting, or protecting public health or preventing population-wide disease, disability, or injury”
With some exceptions, s 70E prohibits anyone complaining to the Human Rights Commission or the courts, and those institutions from hearing or determining proceedings arising out of complaints, that a family care policy breaches freedom from discrimination under the Human Rights Act 1993 or the Bill of Rights. 
Home and Community Support Services Policy 
I now set out the relevant policies in some detail. They are at the centre of this case since the funding decisions regarding Shane are said to be inconsistent with them or they are said to be inconsistent with the Act. They are also complex and difficult to follow. 
There was some suggestion in the evidence of one of the Ministry of Health officials that prescriptive, detailed policies or rules and legislation do not work well.10
| X |Footnote: 10
Affidavit of Katherine Brightwell dated 22 February 2016 at [98]. 
That may be so. But pt 4A confers on these policies the status of legal instruments and their text and purpose must be interpreted accordingly. 
Amongst the services funded by the Ministry are Home and Community Support Services (HCSS), the successor to the Home-Based Support Services (HBSS) challenged in the Atkinson litigation. HCSS is wider than HBSS in that, in its linkage to the FFC, it allows adults with disabilities to employ their parents or resident family members to provide support services. The services the HCSS seeks to fund are defined in the HCSS service specification.11
| X |Footnote: 11
Ministry of Health, Disability Support Services, Tier Two Service Specification, Home and Community Support Services (September 2015 v1.0). 
The Ministry incorporates the HCSS service specification into its Crown funding agreements with service providers under s 10 of the Act. 
The HCSS Service Specification is set out in two “tiers”. Relevantly, the Tier One Service Specification specifies the “DSS Principles” which are to be incorporated in the provision of services by providers under the agreement. These principles are said to be reflective of the Ministry's commitment to the Convention and include recognition of the rights of individuals to respect for their human worth and dignity and to live in and be part of their communities. 
The introduction to the Tier Two Service Specification of HCSS states that it “provides the overarching Service Specification for all Home and Community Support Services funded by Disability Support Services (DSS)”. The Tier Two Service Specification now applies equally to services to persons with disabilities provided by contracted service providers and, if eligible, by family members. Clause 6.6 states: 
Type of Services Delivered 
The Provider may deliver a combination of the following services. 
Household Management 
Services which assist a Person with a disability to maintain, organise and control their household/home environment, enabling them to continue living within their own environment. 
Personal Care 
Assistance with activities of daily living that enables a Person with a disability to maintain their functional ability at an optimal level. 
Sleepover Care or Night Support 
A Service where the Support Worker or Other Staff Member is required to sleep at the home of the Person in order to provide intermittent care throughout the night. ”
Clause 12 provides the “Purchase Unit Codes” associated with this Service: 
Household management, measured by hour and defined as: 
“House Management services that enable a person to continue living with their own environment. This service is specifically for clients who meet the Ministry definition of disability. The number of hours are determined by the relevant NASC Agency for each client receiving Home support services. The service is for people until the age of 65. ”
Personal care, also measured by hour and defined as: 
“Personal Care, Sleepover service(s) that enable a person to continue living with their own environment. This service is specifically for clients who meet the Ministry definition of disability. ”
The current version of the HCSS Service Specification does not define personal care or household management services more specifically. The 2002 and 2008 versions of the HCSS Service Specification preceded the pt 4A regime of the Act. But they provided examples of tasks involved in personal care and household management: 
The 2002 specification of “personal caregiver tasks” was “[a]ssistance with personal hygiene and the range of tasks required supporting daily living”. A non-exclusive list of examples included assistance with eating, dressing and undressing, personal grooming, bathing, transfer from bed to chair and back, monitoring of skin and scalp, toileting, mobility.12
| X |Footnote: 12
Ministry of Health, Service Specification: Home Based Support Services (July 2002) (HBSS 2002) at 7. 
The 2008 specification of “Personal Support” was different when used for ACC and Disability Services purposes. The Disability Services definition was “Assistance with activities of daily living that enables a Person with a disability to maintain their functional ability at an optimal level”.13
| X |Footnote: 13
Ministry of Health, Home and Community Support Service Specification (Disability Services and ACC) (July 2007 v1.1) at 9. 
The 2002 specification of “household management tasks” was “[a]ssistance with tasks normally performed in and around the home. A non-exclusive list of examples included washing, drying, ironing, storage of laundry, cleaning, meal preparation, shopping for food. Excluded were “tasks normally associated with spring cleaning, irregular events or those normally undertaken by trade's people”.14
| X |Footnote: 14
HBSS 2002 at 8. 
The 2008 specification of “household support” was “[s]ervices which assist a Person with a disability to maintain, organise and control their household/home environment”. A non-exclusive list of examples included meal preparation, laundry, bed making, cleaning and rubbish disposal. 
The Support Package Allocation (SPA) is another policy document. It is a guide and a tool for benchmarking needs assessments. The Crown does not say it is part of a family care policy under s 70B. It is principally relevant in its description of, and intended outcomes for, “high” or “very high” disability needs. The SPA also includes tables to calculate expenditure. The Crown has shown how the payments for Shane's care, of $487.58 per week (based on 21 hours at the FFC payment rate), accords with them. 
Community Resident Support Services Policy 
The Ministry also funds Community Residential Support Services (CRSS) to provide 24-hour care in a multi-person home-like environment. CRSS funding is allocated on the basis of the hours and minutes of care a person requires in a household environment with multiple clients — not in the person's own home. The CRSS service specification includes, at cl 6.3.1, “supervision, assistance and support” as a component, whereas the HCSS does not. 
Funded Family Care Policy 
Neither the HCSS nor the CRSS are family care policies for the purpose of pt 4A of the Act. Rather, the FFC policy is a “family care policy” adopted under s 70D. The Funded Family Care Notice 2013 was issued under s 88 of the Act and states, in cl 4, that the Notice is part of a policy and must be read with that policy. 
Relevant clauses of the Notice are: 
Clause 10 provides: 
“Funded family care is described in the Funded Family Care Operational Policy. Essentially it is: 
for personal care and household management services; 
provided by a family carer to a disabled person who meets the eligibility criteria; 
provided to the disabled person up to a maximum of 40 hours a week; and 
paid at the rate of the minimum wage for adults. ”
Clause 17 states “[t]he Ministry expects that the funded family care will enable the disabled person to be cared for in their home and take part in family and community life”
Clauses 27 and 28 require the person with a disability to have an individual service arrangement, specific to them in their home. 
Clause 72 defines “funded family care” as: 
“the policy made by the Government under Part 4A of the New Zealand Public Health and Disability Act 2000; and includes the Ministry's Funded Family Care Operational Policy, this Notice, guidelines and related resources referring to funded family care, which is published on ”
Particularly opaquely, the definition includes footnote 55 after “funded family care” which states: 
“The home and community support services in the individual service arrangement, eg personal care — assistance with showering and dressing; household support — helping to prepare meals or home cleaning; and help for the disabled person through national networks such as family/whānau/aiga, friends, marae, neighbours and others, which ensures the disabled person has the appropriate quality of family care, and can access and attend services such as medical, dental and personal grooming services when required. ”
The FFC Operational Policy itself is a 27 page document.15
| X |Footnote: 15
Ministry of Health Funded Family Care Operational Policy (2nd ed, Ministry of Health, Wellington, 2016) 
There have been different versions of the FFC Operational Policy document — the first in 2013 and the “second edition” in 2016. The Crown concedes the challenge would equally affect all of them and all the funding decisions in relation to Shane. 
Relevantly, cl 2.2 of the FFC Policy provides a NASC will assess whether a disabled person is eligible for FFC and, if so, will conduct a needs assessment. Clause 2.4 provides that some or all disability related needs made be assessed as best supported through an allocation of HCSS. It states: 
“The HCSS service may include personal care such as assistance with showering and consuming of food or assistance with night support in some cases. It can also include household management such as cleaning and cooking as well as some supports for the person to access community activities in certain circumstances. ”
Clause 5.2 states that, where a disabled person eligible for FFC has been allocated more than 40 hours of personal care and/or household management support hours per week, they may apply for consideration of having more than 40 hours delivered by a family carer under FFC. Clause 7.4 provides that an Individual Service Plan (ISP), created by the disabled person and their family carer with the assistance of the host facilitator, documents all the personal care and household management tasks associated with the disabled person's disability-related needs. 
The Crown makes much of the fiscal sustainability aspect of pt 4A's purpose. Yet the evidence of Ms Kathryn Brightwell, from the Ministry, is that costings of the policy assumed it would be taken up by up to 1,600 people whereas it has only been taken up by 225 people as at November 2015. $23 million was originally budgeted for the new FFC services but only $6 million was spent. Similarly, the report Evaluation of Funded Family Care by Artemis Research, dated April 2015, found FFC funding had positive impacts for nine in every 10 FFC funded families but its overall effectiveness was constrained by its limited uptake by those who could potentially benefit from it. 
The challenge 
Shane and Mrs Moody challenge the Ministry's decisions about funding of Shane's care as being unlawful. On their behalf, Mr Dale submitted the primary cause of action is that the funding decisions are in error of law in interpreting and applying policies inconsistently with the purposes of the Act and the Human Rights Act 1993. Mr Dale added that the decisions are inconsistent with Shane's dignity. Mr Dale also submitted the decisions are unreasonable. As fallback positions he submitted the funding decisions are unlawful because the policies are inconsistent with the Act and because they breach Shane's and Mrs Moody's legitimate expectation of the funding they would receive under the Policy. Mr Dale sought orders setting aside the funding decisions, reassessing the application and declaring the FFC Policy is ultra vires and the Ministry acted unlawfully. Mr Dale said the case is important because it affects not just Shane but many others in the most vulnerable sector of our community and their families. 

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