Hearing:	29 and 30 November 2022 and 14 March 2023 Further submissions 1 March 2024
Court:	French, Brown and Courtney JJ
Counsel:	S V McKechnie, B A Heenan and T J Bremner for Appellant in CA371/2021 and CA742/2021 P J Dale KC and M A Jeffries for First Respondent in CA371/2021 L T Meys as litigation guardian for Second Respondents in CA371/2021 and CA742/2021 J S Hancock, E C Vermunt and P A Mitskevitch for Human Rights Commission as Intervener in CA371/2021 and CA742/2021 P Cranney and E Griffin for First Respondent in CA742/2021
Judgment:	9 April 2024 at 11 am

JUDGMENT OF THE COURT

A The appeal in CA371/2021 is allowed.

B The cross-appeal in CA371/2021 is dismissed.

C The appeal in CA742/2021 is allowed in part.

D There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Table of contents

Para No.
INTRODUCTION
A brief outline of the cases	[1]
Issues on appeal	[8]
Crown appeal against Fleming	[8](a)
Ms Fleming’s cross-appeal	[8](d)
Crown appeal against Humphreys	[8](g)
The statutory and policy context of funding family carers
The New Zealand Public Health and Disability Act 2000	[9]
The Service Specifications	[11]
Funded Family Care	[14]
Individualised funding	[20]
CROWN APPEAL AGAINST FLEMING
Ms Fleming’s and Mr Coote’s circumstances	[22]
The Employment Court decision	[27]
Question (a): Was Ms Fleming a “homeworker” as defined by s 5 of the ERA when she cared for Mr Coote?	[32]
Did the Judge err by applying s 6(2) when considering whether Ms Fleming was a homeworker?	[33]
Did the Judge misinterpret Lowe v Director-General of Health?	[42]
The Supreme Court decision in Lowe	[43]
The Employment Court’s interpretation of Lowe	[52]
The application of Lowe to the present case	[61]
Did the Court err in finding that there is an obligation on the State to care for disabled people over the age of 18?	[71]
Convention on the Rights of Persons with Disabilities	[72]
The issue in the Employment Court	[76]
Appeal	[79]
Summary on question (a)	[87]
*Question (b): Was the Employment Court wrong in finding that the “well‑established test for what constitutes work” as set out in Idea Services* applied to Ms Fleming?**
The issue in the Employment Court and on appeal	[89]
Did the Judge err in applying Idea Services?	[95]
The statutory framework does not define “work”	[97]
The application of Idea Services	[103]
Question (c): Did the Employment Court err in finding that Ms Fleming has a personal grievance?	[122]
Summary	[135]
FLEMING CROSS-APPEAL
Question (d): Did pt 4A of the PHDA preclude Ms Fleming from recovering arrears of wages and holiday pay?
The issues in the Employment Court and on appeal	[136]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Fleming

Details

AGLC: Attorney-General v Fleming [2024] NZCA 92
Case: [2024] NZCA 92
Decision Date: 9 April 2024 at 11 am

CaseChat Overview and Summary

- **Case Identification and Dispute Overview**
The case, Attorney-General v Fleming, involved appeals from decisions made by the Employment Court regarding the employment status of family carers under the Funded Family Care (FFC) scheme. The key parties were the Attorney-General (acting on behalf of the Ministry of Health) as the appellant and Christine Fleming and Peter Humphreys as the respondents. The central dispute was whether family members caring for disabled adults under the FFC scheme were considered employees of the Ministry of Health. The court had to determine the legal status of these carers and whether they were entitled to employment benefits.

- **Legal Issues Addressed**
The court addressed several legal issues, including whether Christine Fleming and Peter Humphreys were "homeworkers" as defined by the Employment Relations Act 2000, thereby making them employees of the Ministry of Health. Another issue was whether the approach in Idea Services Ltd v Dickson should be applied to determine the work hours of these family carers. Additionally, the court examined whether the Employment Court had correctly interpreted the New Zealand Public Health and Disability Act 2000 in relation to the funding of family carers. The court also considered whether the Employment Court erred in not imposing penalties under the Employment Relations Act 2000.

- **Court's Reasoning and Outcome**
The Court of Appeal ruled that Christine Fleming was not a "homeworker" under the Employment Relations Act 2000, meaning she was not an employee of the Ministry of Health. The court found errors in the Employment Court's application of the test for determining homeworker status and its interpretation of relevant legislation. Regarding Peter Humphreys, the court concluded that he was a homeworker during the FFC period but not during the Individualised Funding period. The court also determined that the approach in Idea Services Ltd v Dickson did not apply to the assessment of work hours for these family carers. The appeals by the Crown against both Christine Fleming and Peter Humphreys were partially allowed, with the court dismissing the cross-appeal by Christine Fleming and making no order as to costs.

Orders