Ministry of Health v Atkinson

Court of Appeal, 14 May 2012, [2012] NZCA 184

Disclosure: Russell McVeagh (Andrew Butler and Oliver Gascoigne) acted for the Human Rights Commission as Intervener in this case.

The Court of Appeal upheld the declaration made by the Human Rights Review Tribunal1 (Tribunal) and affirmed in a decision by the High Court,2 that the Ministry of Health's policy of excluding family members from being paid for certain support services they provide to their adult disabled children was discriminatory.

Currently, the Ministry only funds certain disability support services if they are unable to be provided by family members.  The respondents in Atkinson (seven parents of adult disabled children and two adult disabled children) claimed that this policy comprised unlawful discrimination against them on the basis of their family status (a prohibited ground of discrimination under s 19 of the New Zealand Bill of Rights Act 1990).  Their claim was limited to four specified services which would be paid for by the Ministry if provided by a non-family member (namely, home-based support services, individualised funding, contract board, and supported independent living.).

The Tribunal accepted their claim and went onto determine that the policy was not a justified limitation on the right to freedom from discrimination under s 5 of the Bill of Rights.

The Ministry unsuccessfully appealed the Tribunal's declaration to the High Court.  The Ministry was then granted leave to appeal the High Court's decision to the Court of Appeal on the following questions of law:

  • Did the High Court correctly state and apply the test for a breach of s 19 of the Bill of Rights?
  • Did the High Court misapply the test for s 5 of the Bill of Rights?

The Court of Appeal held that the High Court had correctly applied both the test for a breach of s 19 and for s 5 of the Bill of Rights and dismissed the Ministry's appeal, finding that:

  • the policy had a discriminatory impact on the relevant respondents, in that:
    • the parents had been treated differently from the comparator group (of non-related persons who are able and willing to provide disability support services to the Ministry) by excluding them from paid work; and
    • the adult disabled children had also been treated differently because they were limited in their choice of carer by the fact that if they chose family carers, the Ministry would not pay them; and
  • the policy imposed a limit that was greater than was reasonably necessary to achieve the Ministry’s objectives, and was not a reasonable limitation on the right to freedom from discrimination.

The fact that the Court of Appeal has upheld the Tribunal's declaration that the policy was discriminatory does not prevent the continuation of the policy.  If the declaration had been overturned on appeal, the Minister of Health would have been required to table the declaration, and the Government's response to it, in the House.

The full judgment can be accessed here.