Parents who care for their severely disabled adult children have been recognised as homeworkers and are entitled to receive the minimum wage, following a landmark ruling today from the country’s highest court.

The Supreme Court decision has the potential to affect thousands of resident family carers who are currently receiving Disability Support Services (DSS) funding, and who are now deemed to be employees of Disability Support Services, which now falls under the Ministry of Social Development.

The case was brought by two parents - Christine Fleming and Peter Humphreys - who each care for their severely disabled adult children, Justin and Sian, whose physical and intellectual disabilities require constant supervision and around-the-clock care.

Today, Fleming said she was thrilled with the outstanding decision that was unanimously reached by the five judges.

“We are really impressed with their grasp of the complicated, confusing and contradictory picture that is the disability support services system and their acknowledgement that our work is of a minimum period of 40 hours per week.”

Independent disability advocate Jane Carrigan, who filed the original case in the Employment Court, said she’s delighted with the decision that has the capacity to impact thousands of carers.

Fleming and Humphreys argued that they were “homeworkers” and as employees of the Ministry of Health, they were entitled to be covered by employment law, because they were providing the disability support services that the Government is responsible for.

Christine Fleming cares for her intellectually and physically disabled son Justin. Photo / Sylvie Whinray.

In 2018, Fleming turned down the ministry’s offer of Funded Family Care (FFC), which allowed a disabled person to employ an eligible family member, arguing she was financially better off receiving a benefit.

Despite knowing Justin’s needs, the Ministry refused to pay Fleming for 40 hours a week, initially offering payment for 15 hours a week, equivalent to just over two hours a day, and later increasing that to 22 hours a week. Both offers were non-negotiable.

Today’s decision comes seven years and seven months after Fleming’s case was filed in the Employment Court and more than two decades after family carers first went to court complaining that they had the right to be paid for the care they provided when their disabled adult children lived at home with them.

The Employment Court found that both parents were employees of the Ministry as homeworkers, which is defined by law as “a person who is engaged [or] employed ... by any other person ... to do work for that other person” in the home.

Last year, the Court of Appeal overturned those decisions, concluding Fleming wasn’t an employee of the Ministry, because she’d refused the Ministry’s offer of FFC, instead opting to remain on a benefit.

It ruled Humphreys was classified as a homeworker during the six years he received FFC while providing full-time care for Sian.

But the court ruled he lost his homeworker status in 2020 when FFC was discontinued and he was funded through Individualised Funding, because it didn’t require an employment relationship between him and his daughter.

The Ministry’s offer was unreasonable, if not unlawful

In its decision, the court found that Fleming was engaged as a homeworker because of a number of factors, including the Ministry’s awareness that she was caring for Justin, and without this care, the Ministry would have to meet its obligations to him.

It found that the definition of the term engagement as a homeworker was to be interpreted broadly, and the Ministry’s offers to families were unreasonable in terms of the hours they were offering to pay them.

It also found that FFC did not exclude Fleming’s rights under the Employment Relations Act.

It concluded that the Ministry’s offer of FFC was “wrongly calculated and unreasonable, if not unlawful, due to the number of hours offered” knowing that Justin required 24/7 care.

Peter Humphreys (left) cares for his intellectually and physically disabled daughter Sian. Photo / Sylvie Whinray SW

The court also found that Humphrey’s transition from FFC to Individualised Funding was a continuation of the status quo and therefore he never lost his status as a homeworker, adding that the Ministry’s documentation supported this.

“There was accordingly no difference for Mr Humphreys and Sian between their positions under Funded Family Care and Individualised Funding,” it said.

Finally, the court considered the meaning of work.

It said Fleming should be paid for the work she did, including for the time spent on supervision and sleepovers.

But, it referred the decision on the number of hours she was to be paid back to the Employment Court to determine the full range of employment entitlements she should receive.

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.