The High Court has ordered the Ministry of Health to reconsider a mother's application for caregiver funding, following its findings that: the Human Rights Review Tribunal had no jurisdiction to suspend its declaration that the Ministry's family caregivers policy is unlawful; and Part 4A of the New Zealand Public Health and Disability Act 2000 does not apply to validate that policy.
The Ministry had declined the mother's application for caregiver funding on the basis that as the Human Rights Review Tribunal's declaration of inconsistency had been temporarily suspended, the previous policy remained in force, and she was therefore not entitled to funding. In a lengthy decision, the High Court concluded that the Tribunal did not have jurisdiction to suspend its declaration, noting that: "the Tribunal does not have statutory authority to deem a policy it has found to be unlawful, lawful". The Court concluded that as the Tribunal's suspension order was void, the Ministry could not rely on the suspension to refuse the mother's application. The Court also rejected the Ministry's argument that the new Part 4A of the NZPHD Act effectively prohibits the Ministry from paying caregiver funding to the mother, finding that: "the unlawful policy is not a family care policy as defined in Part 4A of the NZPHDA.There is nothing in Part 4A which validates the policy the subject of the finding in Atkinson". The Court set aside the Tribunal's suspension order and directed the Ministry to re-consider the mother's application. Spencer v Attorney General  NZHC 2580