The Court of Appeal has taken the rare step of offering advice in a judgement, suggesting the Ministry of Health review its procedures for processing applications for funding to care for disabled adult children.
It came in a postscript to a judgement released yesterday, in which the ministry was ordered to reassess the application of Manawatu woman Diane Moody (76) for funding to care for her disabled adult son.
The court noted this was the third dispute between the Ministry of Health and parent caregivers which had been appealed to it, and hoped future parties to funding eligibility disputes could settle their differences without litigation.
The court went further, with Justice Rhys Harrison saying it was uneasy about the complexity of regulations governing funding eligibility for disability support services.
''They verge on the impenetrable, especially for a lay person,'' the postscript said.
''We hope that the ministry is able to find an effective means of streamlining the regime, thereby rendering it accessible for the people who need it most and those who care for them.''
The postscript echoed the sentiment of the main judgement, in which the court held the ministry had used a formulaic approach to reject Mrs Moody's funding application rather than adopting an approach consistent with the spirit and purpose of the family care policy in the Public Health and Disability Act.
''What is required is a fair estimate of the essential care which Mrs Moody provides and which the policy is intended to support,'' the judgement said.
Mrs Moody had been granted funding for 17 hours a week for intermittent services in caring for her son.
She appealed for judicial review of that decision in the hope she would instead qualify for the maximum 40 hours a week.
Her son (51) has profound intellectual disabilities, and the court said it was plain he could never be left unattended or unsupervised.
The Court of Appeal held the 17 hours decision by the ministry failed to take into account the type of personal care performed by Mrs Moody, which was at various times rather than as a continuous shift.
''The fact that the service cannot be quantified discretely or routinely by use of the ministry's unit-based measurement model does not justify its exclusion,'' the court said.
The ministry formerly refused to pay family members for work in caring for disabled relatives, a policy the Court of Appeal ruled in 2010 was discriminatory and contrary to the New Zealand Bill of Rights Act.
The government then made some funding available for family caregivers, but yesterday the Court of Appeal took the opportunity provided by Mrs Moody's case to question the rigmarole required to access that funding.
It endorsed concerns raised in the High Court about legal uncertainties arising from nebulous definitions which had seen the true purpose of state funding - to maintain a disabled person's functional ability at the best possible level within the home environment - to be neglected.
''The ministry's focus on avoiding payment for mere supervision time has apparently caused its failure to recognise that at certain times, particularly at night, essential services must be provided and are provided by carers on an intermittent basis,'' the court said.
''Some reasonable allowance can be readily made on an hourly basis for each night in recognition of the services performed by the carer.
''[This step] will, however, require ... providers to alter their narrow approach to needs assessment by making a modest adjustment to the appropriate service co-ordination and funding arrangement.''
