On 1 August 2016, the Court of Appeal held that the relief care that Ms Lowe provided pursuant to the government's Carer Support Scheme did not make her a "homeworker", and that she is therefore not an employee of either the Ministry of Health or Capital and Coast District Health Board, who fund the Carer Support Scheme.  The Court overturned a decision of the Full Employment Court, which held that Ms Lowe was a homeworker and therefore deemed to be an employee under the Employment Relations Act 2000.  The Ministry and District Health Board had appealed that decision. 

The Carer Support Scheme is a government programme that supports full time carers of disabled persons by assisting with the costs of a relief carer so that full time carers can have a break from providing care.  Relief carers are chosen by the full time carer and the relief carer "has no relationship with the appellants prior to or while carrying out the work". 

The Employment Relations Act 2000 provides that homeworkers are employees for the purposes of the Act. Section 5 of the Act defines a homeworkeras "a person who is 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 Court's analysis turned on whether Ms Lowe had been engaged by the appellants. 

Considering the nature of the Carer Support Scheme and the relationship that Ms Lowe had with the appellants the Court concluded that Ms Lowe was not engaged by the appellants within the meaning of section 5.  It stated:

To hold that third party funding amounts to engagement would be to stray so far from the natural and ordinary meaning of the work "engage" as to ignore it.

The Court of Appeal's judgment is significant. As the Court explains "if Ms Lowe is a homeworker, she would be entitled to the rights accorded to employees under the Act as well as other employment legislation such as the Minimum Wage Act and the Holidays Act."  E tū, the union representing homeworkers, has stated that it will appeal this decision to the Supreme Court.

Ministry of Health v Lowe [2016] NZCA 369 / 2016