On 20 July 2016, the High Court ruled that Margaret Spencer is entitled to be compensated for care she provided to her adult son Paul Spencer, who suffers from Down syndrome.  The decision follows a number of cases in which the Ministry of Health's former policy of not paying individuals who provide disability support services to family members (referred to as family caregivers) was found to be unjustified discrimination under the New Zealand Bill of Rights Act 1990.  In response to those cases, Parliament passed legislation in 2013 that provides for payments to be made to family caregivers (Part 4A of the New Zealand Public Health and Disability Act 2000).  Part 4A expressly limits the ability of family caregivers to bring claims but also provides for some existing claims, including Mrs Spencer's claims, to be heard by the courts.     

The Ministry challenged Mrs Spencer's claim on various grounds, including fiscal concerns about the precedent that a damages award would set.  A key concern was that awarding damages would set a precedent that the courts could retrospectively extend eligibility for funding under a social program set by a Ministry.  The Ministry was also concerned that a damages award might result in more claims.

The Court did not agree that fiscal concerns ruled out damages for Mrs Spencer.  The Court found that the 2013 legislation expressly limits the risk of future claims, while preserving Mrs Spencer's existing claims.  This indicated that the legislature accepted that a damages award would not be inconsistent with the requirements of fair public administration or the government's obligation to balance competing fiscal demands.  However, the Court declined to award damages for care provided from December 2001, instead awarding damages for care provided from October 2005.  It was relevant that, until at least 2005, the year when the first legal challenge against the Ministry's family caregiver policy was filed, the Ministry had, in good faith, attempted to develop a policy on paying family caregivers.  It found that a damages award going back to 2001 would cut across the requirements of fair public administration and could have a significant fiscal effect.   

The Court also took the unusual measure of making an order under the Human Rights Act requiring that the Ministry educate its officers in the importance of the human rights of disabled persons and their caregivers.

The case is significant as, for the first time, the Courts considered whether damages should be awarded if a government policy is systematically discriminatory, taking into account the potential for such an award to have large fiscal consequences.  In our view, the case does not provide the definitive answer to this general issue.  In this case, the opportunity to seek damages for a limited category of claimants was expressly preserved by Parliament in the 2013 amendments (the High Court and Court of Appeal previously having decided that the 2013 amendments do not apply retrospectively to the Ministry's former policy to which Mrs Spencer's claim relates).  This, combined with the fact that there would be relatively few claimants in the category, meant that any broader fiscal implications did not outweigh the justification for damages for Mrs Spencer.

Spencer v Ministry of Health [2016] NZHC 1650 / 2016