Judgment: Chamberlain v Minister of Health
[Full judgment: ChamberlainvMinisterofHealth.pdf]
V MINISTER OF HEALTH  NZCA 8 [7 February
IN THE COURT OF APPEAL OF NEW ZEALAND
CA460/2017  NZCA 8
SHANE BARRY CHAMBERLAIN
JUDGMENT OF THE COURT
A The appeal is allowed.
B The decision granting the first appellant a maximum of 17 hours of funded family care weekly for disability support services provided by the second appellant is set aside.
C The respondent is directed to reassess the first appellant’s application in a manner consistent with the purposes of the New Zealand Public Health and Disability Act 2000 and the content of the family care policy as set out in this judgment.
D The respondent is ordered to pay costs to the appellants on a band A basis as for a standard appeal together with usual disbursements.
REASONS OF THE COURT
(Given by Harrison J)
 Shane Chamberlain is a middle-aged man with a profound level of intellectual disability. His elderly mother, Diane Moody, has been his fulltime carer for almost all his life. The Ministry of Health funds Shane for his mother’s performance of 17 hours of care weekly as well as funding for third parties to perform additional services. Shane and his mother claim that he is entitled to funding for family care up to the maximum of 40 hours weekly. Both say that the Minister of Health, through the contracted agency of private assessors, has erred in exercising a statutory power of decision.
 Shane, acting through his litigation guardian Jane Carrigan, and Mrs Moody appeal against Palmer J’s judgment in the High Court declining his application for a declaration that the Minister’s funding decision was unlawful for want of consistency with the relevant family care policy (the Policy) under the New Zealand Public Health and Disability Act 2000 (the Act). The appeal requires our determination of the meaning of phrases used in layers of statutory provisions and derivative instruments to identify the relevant disability support services eligible for funding. Palmer J described these documents, with a degree of understatement, as “complex and difficult to follow”. The resultant challenge for impaired persons in understanding the nature and scope of their eligibility is obvious.
 The ultimate question, however, is confined. It is whether the Judge was correct that Shane’s funding eligibility is limited to his mother’s performance of discrete services identifiable within the phrases “personal care” and “household management” where they are used in the relevant specifications;4 or whether, as the appellants submit, these categories of eligibility must encompass the provision of broader services such as safety supervision and intermittent care in the light of the purpose for which family care is funded.
 In our judgment the Ministry’s failure to take into account this intermittent type of personal care performed by Mrs Moody, whether during the day or at night, amounts to an error in assessing the scope of disability support services for which a family member is eligible for payment. The fact that the service cannot be quantified discretely or routinely by use of the Ministry’s unit-based measurement model does not justify its exclusion. A formulaic approach to assessment is inconsistent with the spirit and purpose of the Policy. What is required is a fair estimate of the essential care which Mrs Moody provides and which the Policy is intended to support.
 It is uncontested that Mrs Moody performs intermittent but recurring services for her son which require her constant presence. Shane falls within the category of people with disabilities described by Ms Atkinson as requiring an intense level of oversight. In that sense, Mrs Moody’s service meets Ms Atkinson’s requirement of sleepover care as a separate aspect of HCSS where personal care needs intermittently arise; Ms Atkinson herself distinguishes that service from mere supervision.
 We are satisfied that the NASC providers’ assessment of Shane’s funding eligibility failed to recognise fully the range of services which can be performed by family members. That failure must stem from a misinterpretation of the Policy by the Minister and his agents. Therefore the Minister has erred in law. He has incorrectly interpreted the relevant policy documents and made a decision contrary to the instruments which bind him. For the reasons we have set out the error is serious and warrants judicial review.
 The appeal is allowed.
 The decision granting the first appellant a maximum of 17 hours of funded family care weekly for disability support services provided by the second appellant is set aside.
 The Minister is directed to reassess the first appellant’s application for funding in a manner consistent with the purposes of the Act and content of the Policy as set out in this judgment. In particular, the Minister must make appropriate allowance for Mrs Moody’s provision of personal care services to meet Shane’s immediate intermittent needs as they arise at any hour of the day.
 The respondent is ordered to pay one set of costs to the appellants on a band A basis as for a standard appeal together with usual disbursements.
 We make two additional points. First, we note that this is the third occasion on which a dispute between the Ministry of Health and parents who care for disabled adult children has reached this Court. We hope that in the future parties to disputes over the nature and extent of funding eligibility are able to settle their differences without litigation. Second, we have referred to our unease, which is shared by Palmer J, about the complexity of the statutory instruments governing funding eligibility for disability support services. They verge on the impenetrable, especially for a lay person, and have not been revised or updated to take into account the significant change brought about by pt 4A. We hope that the Ministry is able to find an effective means of streamlining the regime, thereby rendering it accessible for the people who need it most and those who care for them.
[Full judgment: ChamberlainvMinisterofHealth.pdf]