Both parents not subject to active control or oversight, according to court
New Zealand's Court of Appeal has overturned the decision that ruled Christine Fleming and Peter Humphreys were Health Ministry employees after getting government funding to care for their disabled adult children.
The funding was under New Zealand's Individualised Funding scheme, formerly the Funded Family Care (FFC) in 2013, where disabled persons are required to employ a family carer even if they lacked the mental capacity to be an employer.
The IF scheme grants carers with a fortnightly allowance that was made flexible so they can decide how and when to use them.
Fleming and Humphreys, however, argued at the Employment Court that they were homeworkers, defined by law as an "engaged, employed, or contracted by any other person (in the course of that other person’s trade or business) to do work for that other person in a dwellinghouse."
The Employment Court agreed in 2021 that they were employees of the ministry, making the agency liable for a range of obligations and responsibilities, including remuneration and tax.
But the Court of Appeal overturned this decision, ruling that Fleming was not a "homeworker" as defined by the Employment Relations Act.
This was also the finding for Humphreys, which the court said was not a homeworker when he cared for his daughter during the IF period.
The court, however, found that Humphreys was a homeworker and an employee of the Health Ministry when he cared for his daughter while under the FFC period.
According to the court, Fleming and Humphreys were not subject to any active control or oversight and were not constrained by the Crown's terms and conditions as regards to what they did outside normal working hours.
"Further, many steps taken by a family carer might equally be viewed as being taken in their capacity as guardian or homeowner," the court ruled.
Commenting on the decision, Fleming said it felt like he was "stuck in this limbo" without the rights and protections as an employee.
"If I'm suddenly the employer, who do I even talk to about health and safety stuff? And what about grievances? Where do I go for that?" Humphreys told the New Zealand Herald.
Fleming also expressed confusion over her role amid differing titles from agencies.
"The Employment Court decided my son wasn't capable of being my employer and I was a homeworker. The Appeal Court has ruled he can be my employer with an agent's help and I'm not a homeworker," she told the New Zealand Herald.
"I say, I'm a mum caring for her disabled son to the best of my ability."
Paul Dale KC, Fleming's lawyer, said they plan to raise the matter to the Supreme Court.
