Court of Appeal U-turn finds family carers are not employees

The long-running legal debate about funding family carers for disabled people has taken a U-turn, following a decision that they are not Ministry of Health (MOH) employees.

The Court of Appeal recently ruled in Attorney-General v. Fleming and Humphreys [2024] NZCA 92 that parents receiving government funding to care for their disabled adult children are not employed by the MOH.

The ruling overturns a December 2021 Employment Court decision (Fleming v. Attorney-General [2021] NZEmpC 77) that Christine Fleming and Peter Humphreys (parents and carers of disabled children) are employed by the MOH and not by their children. That decision was the latest in a line of cases addressing the funding of family carers for disabled people.

The consequences of the Employment Court’s judgment were that the Government was liable for all the responsibilities of an employer, including paying family carers’ wages, ACC and tax, and potentially compensating the carers for being constantly on call.

The Court of Appeal’s judgment reverses this position.

Definition of ‘homeworkers’

The Court of Appeal considered a range of legal issues, including whether the Employment Court erred in determining that Christine Fleming and Peter Humphreys were “homeworkers” as defined by the Employment Relations Act 2000 (the Act), and therefore employees of the MOH.

Section 5 of the Act defines a homeworker as “a person who is engaged, employed, or contracted by any other person to do work for that other person in a dwellinghouse”.

The Court of Appeal found that:

• Ms Fleming had never been “engaged” or signed a contract with the MOH and was not a “homeworker.”
• Mr Humphreys:
  • Had historically been “engaged” under the now-defunct Funded Family Care scheme and that he was a “homeworker” during that time; but
  • Was not “engaged” by MOH and not a “homeworker” under the current Individualised Funding scheme, which allows a disabled person or their appointed agent to employ their own carers.

Humphreys had declined employment by a Home and Community Support Service (HCSS) and instead relied on his disabled daughter to “employ” him under the Individualised Funding scheme. The court said that Humphreys’ disabled daughter lacked the capacity to be his employer, and that there was no basis upon which the MOH had engaged or employed Humphreys. Accordingly, Humphries was not an employee.

The Court of Appeal did not express a view on eligibility for relief beyond upholding the declaration that Humphreys had been an employee during the FFC period. Whatever relief may be available to Humphreys will have to be considered in the Employment Relations Authority or Employment Court.

If you are as intrigued as we are, fear not – this may not be the end of the long-running legal debate. Fleming’s lawyer Paul Dale, KC, has confirmed the parties will seek leave to appeal to the Supreme Court.

Joseph Harrop is a senior associate at Lane Neave in Auckland, specialising in employment law and health and safety law.