Ministry of Health v. Atkinson

In 2010, the New Zealand Human Rights Tribunal (the Tribunal) declared that the New Zealand government’s policy that excluded relatives of disabled persons from receiving public payments for providing home-care disability services  (the Policy) was discriminatory and thus, violated s 19 of the New Zealand Bill of Rights Act (NZBoRA). The Tribunal’s declaration was challenged by the appellant, the Ministry of Health, which was the public body responsible for implementing the Policy.

The Ministry claimed that although the Policy made a distinction between family member and non-family members for the purposes of disability home care payments, this distinction was not discriminatory. It argued that in order to measure discrimination the family caregivers should not be compared with non-family caregivers who provide the same services, but rather family caregivers should be compared against caregivers who provide services to meet gaps in the services that families are unwilling or unable to meet.  In other words, the families suffered no disadvantage because they were not willing or able to provide those services anyway.

The Ministry also turned to Canadian jurisprudence to argue that in any event the Policy had no detrimental effect on family caregivers because distinctions based on family status did not carry the same historical association of marginalization and disadvantage as other grounds of discrimination. Furthermore, even if the Policy was found to be detrimental, it was saved by virtue of s 5 NZBoRA which allows for violations of rights if it can be “demonstrably justified in a free and democratic society”. On this point, the Ministry contended the Policy was designed to promote a number of legitimate public objectives, including, in particular, that it promoted the social contract between family members under which the primary responsibility for care rests with the family, it prevented commercialisation of family relationships, it prevented families becoming financially reliant on the income, it ensured the government can sustainably fund disability services and it gave the government authority to ensure high quality publically-funded care is provided.

The respondents were a group of people who were either parents of disabled adults or the disabled adults themselves.  The respondents contended that the appropriate comparator were non-family caregivers who were paid for providing services that family caregivers also provided.  The Policy was discriminatory simply because it drew a distinction between two groups based on “family status”, which was a prohibited ground of discrimination under the Human Rights Act 1993 (HRA), and that this distinction had a disadvantageous impact as only non-family caregivers received monetary compensation for the services provided. They argued that such discrimination could not be justified against s 5 as it was not a proportionate response to the policy objectives the government was trying to achieve.

The Court upheld the Tribunal’s finding that the Policy was discriminatory. On the issue of the comparator group, the Court reasoned that if it endorsed the Ministry’s comparator group it would have to accept the validity of the “social contract”, which was the fundamental assumption on which the entire Policy was based (i.e. that typically family members provide for the needs disabled relatives, and thus is it inappropriate to provide family caregivers with government payments). However, the Court was not convinced there was sufficient evidence to support the “social contract” theory and if the Court accepted the theory it would inevitably be forced to uphold the Policy, which it was unwilling to do without further examination.  Therefore, the Court instead favoured the respondents’ position that for the purposes of a comparator group non-family caregivers should be compared against family caregivers, simply because both groups provided the same disabled caring services.

Following this finding, the Court held the distinction between the two groups was based on “family status” and this was a prohibited ground of discrimination under the HRA.  Thus, the Policy was discriminatory. In coming to this conclusion, the Court rejected the Canadian two-step approach to assessing discrimination, where the court will first look at whether a distinction exists and then assess whether the difference is disadvantageous to a group. Rather the Court simply considered that two like groups were being treated differently based on a prohibited ground of discrimination.  Moreover, the Court reasoned that a monetary distinction was sufficient grounds for finding that the Policy was discriminatory.

The Court did not find that the discrimination could be justified under s 5. The Court acknowledged that the Ministry was pursuing legitimate and genuine objectives through the Policy, particularly with respect to ensuring government oversight in the quality of publicly funded services, ensuring payments did not professionalise family relationships and maintaining a fiscally sound scheme for funding disability care services.  The Court also accepted it should show deference to government policy, but it nevertheless concluded that the Policy was not a proportionate response and the government could achieve its objectives through other means rather than withdrawing payments from family caregivers altogether.

[78] “…it is inescapable that the concept of discrimination involves the concept of equality, in the sense of not treating like people equally. For there to be discrimination not only must one person or group of persons be treated differently from another person or group of persons, but there must be similarities between those differently treated groups that make the different treatment unfair. The key is that the decision must involve the making of a distinction in the treatment of other like persons on the prohibited ground. The difference in treatment can only be discriminatory if the difference in treatment is of persons in comparable circumstances.”

[207] “Like the Tribunal, we are left unconvinced that a social contract of the type relied on by the Ministry exists in New Zealand.  The evidence does not provide it, assuming that such a matter was capable of proof. There is certainly a perception in the community, discernible in the Ministry papers, of a duty on the part of parents to look after their children up to a certain age, in the sense of provide them, within their means, food, shelter and clothing.  This concept extends to ensuring that they are educated, and insofar as is possible within the confines of the home, caring for them in the event of illness, or ensuring that they receive proper care.  However, it is another matter altogether to suggest that there is such a duty owed by parents to disabled children for the duration of the life of those children, and that the duty or contract extends to caring for them in the disabled state, no matter how severe that disability. While we do not feel qualified to express any final views on familial duties, we not a clear distinction between the orthodox parental duties we have mentioned, and those of the parents of disabled children.”

[285] “We are not in any way convinced that the blanket prohibition is a proportionate response to the importance of the objective. The objectives are attainable if the policy is cancelled, and a new policy designed which incorporates those goals without banning family members…The blanket prohibition is a disproportionate response to the importance of the objectives. There are more moderate ways to meet them…A selection process, training, monitoring and the retention by the Ministry of a right to cancel for a failure to meet the criteria should assist the Ministry to meet its objectives.”