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Attorney-General v Spencer

Attorney-General v Spencer

Case [2015] NZCA 143 4 May 2015

Discrimination

Statutory Interpretation

Rights Enforcement

Human Rights Law

Administrative Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA736/2013
[2015] NZCA 143

BETWEEN	ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF HEALTH Appellant
AND	MARGARET SPENCER First Respondent
AND	HUMAN RIGHTS REVIEW TRIBUNAL Second Respondent

Hearing:	22 October 2014
Court:	Harrison, French and Cooper JJ
Counsel:	M R Heron QC and U R Jagose for Appellant J A Farmer QC, S L Robertson, H L Quinlan and M A Sissons for First Respondent Second Respondent abides decision of the Court A S Butler and O Gascoigne for Human Rights Commission as Intervener
Judgment:	4 May 2015 at 2.15 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant is ordered to pay costs separately to each respondent on a standard band A basis with usual and reasonable disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Table of Contents

Para No

Introduction.......................................................................................................... [1]
Effect of declaration and suspension order....................................................... [8]

(a)       Tribunal’s decisions..................................................................................... [8]
(b)       High Court................................................................................................. [13]
(c)        The Ministry’s appeal................................................................................ [16]

(i) Scope of declaration......................................................................... [16]
(ii) Suspension order.............................................................................. [31]

Part 4A NZPHDAA............................................................................................ [46]

(a)       Introduction............................................................................................... [46]
(b)       Statutory provisions................................................................................... [50]
(c)        Issues......................................................................................................... [60]

(i)     “Family care policy”........................................................................ [60]
(ii)     Validation......................................................................................... [77]
(iii)    Savings............................................................................................. [88]

Result................................................................................................................... [92]

Introduction

A group of parents had for many years cared for their disabled children without financial assistance from the State. Seven of them and two adult disabled children (together called the Atkinson plaintiffs) brought a claim in the Human Rights Review Tribunal alleging that the Ministry of Health’s policy of refusing to pay disability support to parents of disabled adult children was discriminatory on the grounds of family status contrary to the Human Rights Act 1993 (the HRA). The Ministry’s defence was that parents are natural supports of disabled children and are bound by a social contract with the State which disentitles them to financial assistance for caring for their own family members.
The Tribunal upheld the Atkinson plaintiffs’ claim, declaring that the Ministry’s policy (the Atkinson policy) was inconsistent with s 19 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).[1] That section provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the HRA. Materially, also, the Tribunal later made an order by consent purporting to suspend for an indefinite period the effect of its declaration from the date it was made.[2] The Ministry appealed unsuccessfully against the Tribunal’s decision to grant a declaration, first to the High Court[3] and then to a Full Court of this Court.[4] The Tribunal’s determination of consequential remedies including a claim for damages was deferred during the appeal process. The Ministry has since accepted that the Atkinson policy is discriminatory.
[1]Atkinson v Ministry of Health [2010] NZHRRT 1, (2010) 8 HRNZ 902 [Atkinson (HRRT)].
[2]Atkinson v Ministry of Health HRRT 33/05, 3 June 2010 [Suspension…

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 Spencer

Details

AGLC: Attorney-General v Spencer [2015] NZCA 143
Case: [2015] NZCA 143
Decision Date: 4 May 2015 at 2.15 pm

CaseChat Overview and Summary

In the case of Attorney-General v Spencer, the Court of Appeal of New Zealand dismissed the appeal brought by the Attorney-General on behalf of the Ministry of Health against the High Court's decision in Spencer v Attorney-General. Margaret Spencer, the mother of a seriously disabled adult man, had her application for a disability support allowance denied by the Ministry of Health, relying on a policy that excluded specified family members from receiving payment for providing disability support services. The Court of Appeal upheld the High Court's decision that the Ministry of Health acted unlawfully in denying Spencer's application for a disability support allowance and ordered the Ministry to reconsider her application. The Court also held that a new statutory provision, part 4A of the New Zealand Public Health and Disability Act 2000, as inserted by the New Zealand Public Health and Disability Amendment Act 2013, did not preclude Spencer from applying to the Tribunal to be joined as a plaintiff in the Atkinson proceedings. The Court further declared that the Human Rights Review Tribunal had no power to suspend the effect of its declaration that the Ministry of Health's policy was inconsistent with the Human Rights Act 1993. The appeal was dismissed, and the appellant was ordered to pay costs to each respondent on a standard band A basis with usual and reasonable disbursements.

Orders